Is Technology Helping or Hurting Your Litigation Chances?

The advent of electronic health records (EHRs) can only be a positive thing for patient care, correct? Maybe not. And EHRs would certainly prevent a number of malpractice suits, right? Guess again. While vast improvements in healthcare technology, including EHR adoption, create synchronicity among providers and streamline care delivery, errors within these systems create the potential for risk. In fact, medical liability claims with an EHR as a contributing factor are on the rise(1).

The risks with any new technology are twofold:

  • The potential for user error increases: Proper training is paramount to avoiding mistakes and issues
  • New software applications are rarely without technical glitches: Stay abreast of upgrades and patches, and have an experienced technical team (either in-house or through an external vendor)

Another common factor with increased electronic solutions is user burnout(2) – wherein healthcare staff tire of spending more time inputting data than they do actually caring for patients. Any system, no matter how sophisticated it is, can only be as good as the data it captures. It can’t think, and it can’t do a healthcare provider’s thinking for them.

One way to ensure that EHRs are accurate is to institute an official audit schedule. While this includes confirmation of edits/additions to records, it should also include an audit of the application itself to ensure the latest updates are downloaded and running properly. The best way to instill a sense of importance around any EHR audit is to garner involvement at every level of the practice. This includes proper training, proper audit authority, and proper incentives for successful EHR implementation.

Even seemingly foolproof technology can fail. If (when) it does, be sure that your practice is prepared to mitigate the potential damage. One important piece of the plan is having proper medical malpractice insurance in place(3). It’s important to understand what your policy covers before you need it. Your agent can educate you about the different policies available(4) and the best risk management plan for you.

Contact us today if you have questions about the risks associated with electronic health records and other technology in the healthcare industry. Our years of experience can help you decide which professional liability plan works for you.

Footnotes:

  • https://www.medicaleconomics.com/news/your-ehr-malpractice-risk
  • https://www.the-hospitalist.org/hospitalist/article/121825/potential-dangers-using-technology-healthcare
  • https://www.iii.org/article/understanding-medical-malpractice-insurance
  • https://www.naic.org/cipr_topics/topic_med_mal.htm

Signed Consent: Does it Prevent Litigation?

Many healthcare professionals believe that a signed document equals informed consent, and that no further documentation is necessary. While that theory is basically true, there is definitely a difference between theory and practice. The obligation (in both the ethical and legal sense) to fully inform patients of the risks, benefits, and alternatives to treatment falls to the treating provider. Informed consent is best described as a process, not a single document. Patients must demonstrate their understanding of the treatment being pursued, as well as an explanation of both the provider’s and the patient’s roles in the treatment, as well as the risk of addiction to the medications prescribed.

Consider our recent case study(1) involving a patient who allegedly died of a prescription overdose because the plaintiff contends that the multiple providers he sought treatment from were negligent in monitoring his conditions and medications. Reading through the documentation, it seems that no single provider was aware of the patient’s entire medical history, nor his current medication intake. And while the patient provided informed consent about the possibility of drug interactions to multiple providers, the seriousness of the situation did not appear evident to all involved parties, including the providers and the patient.

CARE Professional Liability Association and OmniSure Consulting Group(2) suggest the following steps to reduce your professional risk(3):

  • Customize consent forms to be as procedure-specific as possible; generic forms are too generalized to communicate proper information
  • Document the entire consent process in the patient’s medical record, including the conversation with the patient and specific questions they asked and how they were answered
  • Create policies and procedures outlining who specifically can obtain informed consent
  • Audit medical records periodically to validate that documentation and informed consent processes are being followed correctly

Patients might be too embarrassed to ask questions about the procedure, or might not even know what to ask if they don’t understand the consent form. Or they might feel rushed, or simply downplay the consent form’s importance. It’s our job as healthcare providers to make sure patients are comfortable enough to ask pertinent questions so that their consent is not simply a signature, but a complete understanding of the treatment they receive.

Contact us today. We can help you develop an informed consent documentation plan that works for both you and your patients.

Footnotes

  • https://care-ins.com/case-studies/
  • https://www.omnisure.com/
  • https://www.riskfitness.com/informed-consent-recommendations

CARE Joins Forces with Digital Surgery

At CARE, we strive to partner with other industry leaders who can bring high-quality, meaningful contributions to our members. In the spirit of that goal, we have joined forces with Digital Surgery, a leader in simulation training, surgical video management and storage, and automated surgical analytics. Digital Surgery’s award-winning mobile application Touch Surgery houses more than 200 surgical simulations across 14 specialties, and its content library is continuously growing. The company’s latest offering, Touch Surgery Professional, offers secure video storage and management, automated analytics, annotation tools, and sharing capabilities for peer review and training purposes.

Together, CARE and Digital Surgery offer unique benefits to members that make coverage through CARE an even more invaluable investment. For example, qualified* Touch Surgery Professional (TS Pro) members can receive up to 10% off their CARE insurance policy. Another benefit of combined membership is knowledge exchange, which grows exponentially as members exchange ideas, solutions, and best practices via the TS Pro platform.

Digital Surgery’s goal is to utilize digital technology to empower surgeons and surgical teams all over the world to create safer, better outcomes. Like many of us in the healthcare field, Digital Surgery wants its tools to help increase knowledge and improve the delivery of surgical care across the globe. 

Contact us today. We can help you maximize your membership through our collaboration with Digital Surgery. Working together, we bring these industry-leading tools and resources to you to optimize your and your team’s training, shared learning, and performance in the operating room. 

*Qualified Digital Surgery members are those who have signed up for the Touch Surgery Professional offering, available for $999 for an annual subscription. This subscription provides access to (1) all of Digital Surgery’s publicly available CG and video-based simulations, (2) Digital Surgery’s video upload and storage platform, with automated analytics for selected procedures, (3) tools to annotate videos; add instruments, notes, and assessments; and to share with colleagues or trainees for peer review or training purposes. A minimum of 50 surgical videos are required to be uploaded annually to the Touch Surgery Professional video platform in order to remain eligible for the CARE insurance premium discount.

Agents: Educate Both Yourself and Your Clients

Brokers and agents act as the liaison between medical malpractice insurance carriers and healthcare providers (including doctors, ARNPs, surgeons, dentists, behavioral health professionals, etc.). As a liaison, it’s important that you understand the complexities of this type of liability insurance. Some of your clients might be just out of medical school, or working as a subcontractor, or are going into business for themselves and no longer under the umbrella of a hospital policy. No matter their situation, your main goal is to educate your clients.

How can you help them decide which policy is best for them? Some key elements to discuss with them include:

  • Point out whether a policy covers bodily injury, property damage, and/or liability for personal injuries. And if so, what are the coverage limits? Be sure to note that per-occurrence and per-policy limits are two separate dollar amounts. Outline any conditions and exclusions so there are no surprises should your client be sued.
  • Know your state’s minimum requirements for insuring specific types of practices. Surgeons and OB practices have more risk potential, and therefore, need stronger risk buffers.
  • In addition to state minimums mentioned above, ask your clients how risk-averse they tend to be. How comfortable are they with lower policy caps? You don’t want them losing sleep at night (and calling you!) when they could simply make some policy adjustments to match their comfort level.
  • Discuss potential litigation costs, and specifically which legal expenses are covered by the policy.
  • Outline differences in reporting periods. Basically, they have two options: claims-made policies or per-occurrence policies.

Considering that a majority of healthcare professionals will face at least one medical malpractice lawsuit in the course of their career, their liability coverage is an important part of their success. Aligning your clients with proper coverage ensures success for both you and them.

Contact us today if you’d like to learn more about becoming an agent for CARE. We place a strong focus on serving the needs of our agent/broker network and would love to discuss partnering with you.

Seven Elements You Need to Understand in Medical Malpractice Policies

Providers have plenty of options when purchasing medical malpractice coverage. Both the availability of coverage options and the types of plans available can seem a bit overwhelming. Standard insurance companies, as well as specialty insurers, provide policies. But don’t overlook risk retention groups, which can provide great rates along with additional concierge-level services and benefits.

When reviewing a policy, pay attention to the following elements:

  1. Specific coverage details: For example, determine whether the policy covers compliance-related incidents or HIPAA violations.
  2. Conditions, exclusions: most policies do not cover criminal acts or sexual misconduct.
  3. Financial limitations: malpractice policies usually have one cap for the maximum paid per claim per policy year, and another cap that is the maximum paid for all claims during the policy year.
  4. Policy definitions: what is the “general standard of patient care”, and who defines it?
  5. Subcontractor liability: determine whether you are a subcontractor to the hospital or clinic where you perform services. Ask if your office/lab personnel are considered your subcontractors.
  6. Litigation-related costs: this includes what it costs to defend your firm in court, attorney fees, court costs, arbitration and settlement costs, medical damages, and punitive and compensatory damages.
  7. Reporting period (claims made vs. claims occurrence): in short, a claims-made policy provides coverage if the policy is in effect both when the incident took place and when the lawsuit is filed.

Additionally, it’s important to know your state’s malpractice insurance minimum requirements (if applicable) before purchasing a policy. Not only are state-mandated minimums important, but also consider your own personal and practice asset protection needs, which may vary greatly based on your risk-aversion mentality. It might be in your best interest to work with a professional consultant to determine the appropriate type and amount of coverage for your particular situation.

Contact us today. We can help determine your risk threshold, as well as help you feel comfortable in making a sound decision about medical malpractice insurance.  

Swiss Cheese and Malpractice Litigation

What do Swiss cheese and malpractice litigation have in common? Neither exist without the holes in them. In a clinical care setting, as depicted by the image to the right, the probability for error increases as your gaps in care increase. The more ‘holes’ you have, the better chances of those holes aligning, making way for adverse events that could result in a malpractice suit.

Areas of particular concern (1) include:

  • Consent
  • Supervision
  • Patient history and physical
  • Documentation
  • Provider collaboration
  • Pain management
  • Staff training
  • Communication

We’ll explore each of these clinical elements in more depth in future blogs.

Generally speaking, errors and adverse events are often a combination of human, electronic, and technical errors. The goal shouldn’t be to assign blame, but rather to mitigate the issues (2) so that they don’t happen in the first place, or in the very least, so that they don’t recur. Usually, this is best accomplished by recognizing and addressing systems issues. What systemic changes can be made to better support the clinician at the point of care and to prevent similar mistakes or adverse outcomes? No one truly benefits from a malpractice suit, not even the plaintiff if they win. They incurred some sort of loss to become a plaintiff in the first place, and would surely rather choose not to, if they could do it all over again.

Not all adverse events result in death, disability, or other major/chronic issues. However, the goal of risk mitigation is to reduce the overall trend of adverse events in total. Even issues deemed to be minor or insignificant (3).

The Swiss cheese model (4) is not germane to the healthcare industry. It can be applied to any industry where singular issues, when compounded with other seemingly singular issues, create a sum (adverse event) greater than their parts. Picture it as slicing a block of Swiss cheese, and laying the slices atop each other. It’s practically inevitable – something will eventually slip through every slice.

Be assured that the partnership between CARE and OmniSure provides you with a plethora of knowledge, experience, and expertise to help your practice identify potential holes, if you will, in your risk management plan. Contact us today for more information.

References

  • https://omnisure.wistia.com/medias/51g19jcybx
  • https://mckinneylaw.iu.edu/ihlr/pdf/vol16p21.pdf
  • http://files.constantcontact.com/68ac21ab401/4cb9c5c5-ba86-4ba8-ae9c-041f1b78f673.pdf
  • https://www.youtube.com/watch?v=JRCMxfBULB4

CARE Case Study: Patient dies from prescribed medication intoxication

Summary

Plaintiff alleged 38-year-old husband and father died as a result of prescription overdose after seeking care from multiple providers who were negligent in the treatment and monitoring of the patient and his condition.

Detailed history

A 38-year-old married Caucasian male, Patient, signed a consent for treatment at Psychiatric Clinic, and was seen by Clinic’s Advance Registered Nurse Practitioner (ARNP). ARNP is considered an independent contractor at Psychiatric Clinic, receiving “general supervision” by CARE Professional Liability Association’s Insured Physician, as per the ARNP Act. Under this act, the ARNP has an MD available in emergencies or if the ARNP needs consultation.

The Patient’s care with ARNP at Psychiatric Clinic started with a diagnosis of Bipolar Disorder and he was prescribed Seroquel (300mg qd) and Xanax (1mg prn), with 3 refills.

NOTE: Unknown to Insured Supervising Physician, ARNP, or anyone else at Psychiatric Clinic, but according to records discovered later, Patient had been treated at an Ortho Institute 3 years earlier for neck and arm pain. When Patient called that Ortho Institute asking for a refill for extra strength Vicodin, Ortho Institute denied his request, as Patient had just filled a prescription for 50 extra strength Vicodin and 50 Percocet. It was noted in Ortho Institute’s record that Patient was “taking too much medication.”

Over the next yearPatient returned to Psychiatric Clinic and medications were adjusted slightly to Seroquel (400mg qd) and Xanax (1mg qid), with 3 refills.

Eleven days after the 13-month appointment, Patient returned to Psychiatric Clinic and reported his wife and children left him, and that he had been inconsistent with taking his medication. Patient was prescribed Seroquel (400mg qd) and Xanax (1mg x5), with 2 refills.

Sixteen days after that, Patient returned to Psychiatric Clinic and reported he was doing better and his wife and children had returned. APRN discussed alternatives to Seroquel, but Patient was reluctant. Patient also reported attending AA meetings.

Over the next year, Patient returned to Psychiatric Clinic for ongoing treatment. At a visit two years into treatment, Patient reported losing his health insurance. At the visit 5 months later, Patient reported that he lost his job three months ago and is experiencing increased stress.

One month later, 24 months after beginning treatment at Psychiatric Clinic,Patient was involved in a motor vehicle accident that resulted in disc herniation in his cervical and lumbar spine. Patient sought treatment with a Different MD at Spine Center, as well as with 3rd Provider at Another Clinic. Patient was prescribed Oxycodone (5mg, every 8 hours) from Spine MD, and ibuprofen (800mg, every 8 hours) by the 3rd Provider, Another Clinic’s ARNP, for pain.

Approximately a month after that,Patient returned to the Psychiatric Clinic for the last time, and reported he was still looking for work, and his wife was unemployed as well. There was no indication in APRN’s clinical note that the Patient reported being in a motor vehicle accident or that he was now taking Oxycodone for neck and back pain.

According to testimonies,Spine MD stated in his deposition that he treated Patient for neck and back pain after the motor vehicle accident and he prescribed Patient 5mg of Percocet for pain. He stated that he was aware Patient was prescribed Xanax, but he did not ask the dosage. He stated that he was not concerned with the interaction between Percocet and Xanax, and prescribed a low dose of Percocet. Three months later, Spine MD increased the Percocet to 7.5mg every 8 hours and recommended that Patient obtain a second opinion for possible surgery.

3rd Provider, ARNP, who was also treating the patient for pain post motor vehicle accident, prescribed him ibuprofen 800mg every 8 hours. She reported remembering that Patient was fidgety, anxious, and moving around a lot. Patient also immediately told her that he was allergic to Tramadol, which she interpreted as him seeking a strong pain medication. She stated that she believed Patient exhibited signs of having a drug problem, but acknowledged that she did not document this, nor did she inform anyone of her suspicions. His presenting complaints were headaches, and neck and back pain as a result of the motor vehicle accident. She noticed everything to be going well until the patient realized that he could not get Percocet, oxycodone, or Xanax from her. Patient did report that he had received 15 Percocet pills from the hospital three days prior, but was out or almost out.

Another treating physician, 4th Provider MD, saw the patient one time a month after the motor vehicle accident. Her prescriptions at this time were oxycodone, Seroquel, Xanax, and ibuprofen. She noted that his pulse was high, he had a slight slur in his speech, and he reported that his sleep was affected by position changes. She added that she did not believe he was overmedicated, rather he was adjusting to his medications. Patient reported that he had been taking the Seroquel on a prn basis, and she advised Patient to take all his medications as prescribed. 4th Provider MD reported receiving a phone call, presumably from 3rd Provider APRN, stating that Patient had been seen there and was asking for pain medication but was given ibuprofen and referred to pain management instead.

Meanwhile, Patient’s wife reported making several attempts to get in contact with Psychiatric Clinic’s APRN in which she told the receptionist Patient was “acting crazy”. Each time she called, Patient’s wife was only able to speak with the receptionist, and reported feeling like the receptionist did not care, nor did she ever receive a call back.

Two months later, a member of Patient’s family discovered Patient’s deceased body, and reported that there were pills at his bedside. The medical examiner recorded the cause of death as intoxication by Xanax and Oxycodone in the course of treatment for degenerative joint disease of the cervical spine.

It was noted in the medical record that days before his death, Patient called APRN’s office, with his wife listening in on the call, and asked if his wife could attend his next appointment, to which APRN agreed, although the patient died prior to this appointment occurring.

Plaintiff Allegations

The plaintiff claims that CARE’s Insured MD was negligent due to the following:

  • Failure to perform adequate clinical evaluations,
  • Failure to adequately monitor Patient during the care and treatment of his clinical conditions including his apparent psychiatric disorders,
  • Failure to provide patient instructions to Patient regarding the care and treatment of his apparent psychiatric disorders, and
  • Providing an additional prescription for alprazolam to Patient before the completion of his prior prescription.
  • Plaintiff further alleges that Insured MD and his practice are responsible for the negligence of Psychiatric Clinic’s ARNP, as her supervising physician.
  • Plaintiff alleges that as a result of the negligent acts of the Defendants, Patient died of intoxication of Oxycodone and Alprazolam.

The plaintiff also claims that 3rd Provider is vicariously liable for:

  • Their employed APRN’s as well as the 4th Provider MD’s failure to warn Patient of the hazards associated with prescribing ibuprofen with his other medications and
  • Failing to warn Patient of the dangers of his medication regimen.

Plaintiff claims Spine Clinic is vicariously liable for Spine MD who was negligent when he failed to monitor Patient’s prescription medications.

Adverse Anesthesia Events: Are They Inevitable?

Statistically speaking, anesthesia-related deaths are very rare: only one death is reported per every 200,000 – 300,000 events. But as with any medical procedure, there is room for improvement, including more stringent monitoring techniques and widespread adoption of best practices. Both of these suggestions can pave the way for standardized procedures to make that statistic even smaller.

The leading causes of anesthesia-related issues include:

While not all adverse events result in death, serious issues can arise, such as brain injury, brain death, increased cardiac and respiratory complications, prolonged hospital stays, and necessary mechanical ventilator support.

Patient knowledge, consent, and comfort are important factors in anesthesia care. Thoroughly discussing techniques, risks, and outcomes with patients encourages candid dialogue about patient history, current physical constraints, or even mental illness that may affect certain modes of anesthesia. Setting the proper expectations for patients creates an environment of trust and confidence in their providers.

In the unlikely event that issues arise, immediately document every aspect of the incident. While this includes a thorough description of technical events, don’t overlook the importance of engaging relevant consultants, such as neurologists and radiologists. Professionals from other disciplines can provide valuable third-party insight in determining cause and effect.

CARE members also have valuable resources at their disposal, such as the RiskFit helpline (available compliments of CARE’s partnership with OmniSure). This helpline can answer questions and provide guidance on how to best mitigate the risk arising from adverse events. The RiskFit helpline garners best practices from the volume of information it collects on similar events. Coupled with the experience level of the associates that provide consultations, this information helps members decide on the best course of action specific to their situation.

Contact us today if you would like more information about the benefits of joining CARE, or would like to see how the CARE/OmniSure partnership can benefit you too.

The Case for Case Studies

As a medical provider, you know the inherent risk and likelihood of unforeseen adverse events. You may need advice when these situations unfold. CARE, through our partnership with OmniSure, offers a helpline specifically for such issues. The helpline assists with questions about specific incidents, risk mitigation, and regulatory-related issues.

We then use the information gathered from our helpline to develop case studies, which in turn help our clients navigate the waters of incident reporting and risk mitigation. The aggregation of this data, coupled with our extensive experience, provides clients with examples, solutions, and best practices of clients that have been in similar situations.  

In this and future posts, we will explore case studies, and how learning from them helps our clients prevent future claims. As an example, this case study outlines a lawsuit wherein the plaintiff alleges that her husband died as a result of a prescription overdose after seeking care from multiple providers – including independent physicians, supervised nurse practitioners, independent advanced practice providers, and specialty clinics – who were negligent in the treatment and monitoring of the patient and his condition. While this case has not been settled yet, it does remind providers of the importance of completing a thorough patient history, as well as patient follow up.

We all make mistakes, in both our personal and professional capacities. To err is human. If you have patient safety or risk management questions, or need guidance after a potentially litigious event, get the guidance of a clinical risk specialist. Don’t go it alone. As a CARE policyholder, you have access to confidential advice-on-demand from a third-party firm that specializes in helping avoid litigation by protecting your patients, your license, and your reputation. Click here for more information.  

What is Professional Liability Insurance for Healthcare Professionals?

Also known as medical malpractice insurance, professional liability coverage protects healthcare workers from financial risk associated with patient bodily injury, medical expenses, and property damage. As with any legal-laden issues, the cost associated with risk mitigation can be substantial. And it’s not solely about paying claims, because insurers also spend a considerable amount of money investigating and defending claims before a suit ever makes it to court. With so much money at risk, proper insurance coverage is a necessity.

There are two basic types of coverage to consider: occurrence-based or claims-made:
• Occurrence-based: this type of policy covers a loss that occurs during the active insurance policy period, even if the claim is filed after the policy is cancelled.
• Claims-made policy: this type of policy covers any claims reported during the active policy period, regardless of when the injury/loss happened.

Outside of either of these types of coverage, providers should also consider purchasing extended reporting endorsement (tail) coverage, which indefinitely extends the time during which claims may be reported. Tail coverage can be very expensive to purchase due to its perpetuity of liability.

Due to the fact that claims can be made long after the date of service, premiums for claims-made policies are lower than occurrence-based policies. However, in order to balance out the risk, claims-made policy rates increase rapidly year-over-year.

Professional liability coverage is mandatory due to the large financial risk at stake. Policies can be underwritten by individual insurance companies or collective risk retention organizations. Very large healthcare organizations are sometimes self-funded, wherein they establish an account or trust to pay these types of expenses.

It’s important to note that not all liability comes from medical errors, so your liability insurance also needs to cover expenses related to data breach mitigation and regulatory requirements, such as HIPAA compliance.

Contact us today if you have questions about what type of coverage is best suited for your practice. We would be happy to help you review your options.