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Switching from Defense to Offense Amid a Crisis

We understand that our clients in the health care industry are inundated daily (dare we say hourly?) with information about COVID-19. You know how to handle the virus – for yourself, your practice, and your patients. If ‘triage’ wasn’t your middle name before the pandemic, it surely is now. You’re getting info from every news source, from your own administration and from health care experts around the globe. While we hope that our communications have been informative and helpful, we know it’s a lot to digest. And while it may sound difficult, now is the time to shift your focus. It’s time to move from defensive tactics to proactive planning.

You and your staff have been educated, and have learned from daily trial and error how to handle this crisis. With your business continuity plans tested and solidified, it’s time to turn your attention to new areas of focus. These include(1):

  • Workforce management: ensure employees that their personal safety, as well as nontangibles such as their mental well-being and work/life balance, are top priorities
  • Communications (internal and external): reach out to both your employees and your customers to let them know what you are doing to impact change during this crisis; remind them why they depend on you
  • Cybersecurity enhancements: times like these are ripe for exploiting weaknesses, so strengthen your security protocols before you experience a data breach
  • Operational changes: online breaches are not the only threat; access to physical locations needs a thorough review to ensure employee and patient safety
  • Supply chain plans: flexibility is the key to problem solving (for example: even non-virus-related issues, such as simple plumbing repairs at your practice, could take weeks due to parts availability and delayed delivery timelines)
  • Finance and liquidity: payment regulations shift constantly due to governmental oversight; be prepared for income fluctuations by forecasting multiple reimbursement models(2)
  • Regulatory influence: connect with both local and national government officials to offer valuable insight in crisis control and future pandemic planning

Yes, that’s quite an involved list. The good news is that it doesn’t all have to be accomplished today. Proper planning is paramount to switching to a proactive mindset. In the end, the investment of time, energy, money, and resources provides great payoff and benefits when compared with the alternative (wait-and-see) approach. One of the most important things you can do when developing these action plans is to remember why you got into the health care field in the first place. Those foundational principles(3) will guide you to building solid solutions for the elements outlined above.

Contact us today. Your professional liability coverage is just one of many tools you can leverage to set and attain the goals discussed here.

Footnotes

  1. https://www.pwc.com/us/en/library/covid-19/covid-19-and-insurance-industry.html
  2. https://www.forbes.com/sites/brentdykes/2020/04/29/why-your-business-must-double-down-on-data/#5bded2fe7a68
  3. https://hbr.org/2018/01/the-culture-factor

2020: The Perfect Storm

As if the pandemic itself was not enough of a hurricane-like event to the healthcare industry, the upcoming tsunami of lawsuits will surely drown what’s left of health care worker morale and mental health, not to mention bank accounts. The perfect storm of fast-paced changes and dwindling resources has left some providers wondering if their practice will stay afloat throughout 2020.

The healthcare world’s ancillary industries, such as liability and litigation support, ride the same wave of uncertainty and persistent changes in priorities. Weather disaster puns aside, we all must prepare for the upcoming litigation wave now within the confines of our current conditions.

Potential litigation points specific to the healthcare industry include(1):

  • Employment issues
  • Inadequate or improper provision of PPE(2)
  • Business interruption
  • Force majeure clauses in contracts
  • Price gouging complaints
  • Personal injury caused by negligence
  • Medical malpractice
  • Fraud or misrepresentation  

The first step to preparedness is education. Become familiar with how the bullet points listed above may affect your practice. Appoint someone in your organization to serve as a point person for all things pandemic-related. That way, all potential issues can be cross referenced and addressed quickly. This person’s duty is to stay attuned to ever-changing laws and regulations, both at the state and federal levels(3). Then they can take this information and scrutinize any internal policies for necessary updates and changes.

Staying proactive is paramount to staying ahead of potential litigation. Address issues before they become incidents to prevent costly disputes. We are all riding out this storm together, not as competitors, but as one large tribe, trying to save our families, our economy, our industries, ourselves, and each other.

If you are unsure whether your current policy provides adequate coverage for issues related to COVID-19, please contact us today. We can review your professional liability policy to ensure it aligns with current mandates and guidelines.

Footnotes

  1. https://www.natlawreview.com/article/be-prepared-onslaught-coronavirus-related-lawsuits
  2. https://www.marketwatch.com/story/what-we-are-confronting-now-is-really-unprecedented-coronavirus-related-lawsuits-are-poised-to-flood-the-courts-2020-05-08
  3. https://www.washingtonpost.com/politics/2020/05/08/lawsuit-coronavirus-congress/

Malpractice Prone: Do Providers Have Common Traits?

Is there a set of traits that identify malpractice claim-prone providers? Or at least that identify complaint-prone trends? A recent study(1) presented findings that may help industry experts identify and mitigate future risk based on historical data. For example, in that study, approximately 1% of all physicians accounted for 32% of paid claims. Additionally, the risk of recurrence increased with the number of previously paid claims. For example, providers who already had three paid claims had three times the risk of incurring another. In other words, they have a 24% chance of acquiring another paid claim within two years. 

Generally speaking, male physicians over age 35 were in the greatest risk category. Additionally, these specialties were at higher risk for litigation(2):

  • Neurosurgeons
  • Orthopedic Surgeons
  • General Surgeons
  • Plastic Surgeons
  • Obstetricians/Gynecologists

However, the issue isn’t simply a matter of being a male neurosurgeon who graduated from medical school at least five years ago. If other factors can be isolated, then providers and healthcare organizations need to develop programs to reduce the likelihood of adverse incidents that lead to malpractice litigation.

Algorithms and risk assessments are already in place for insurers, with underwriters and actuaries studying data and trends every day. Actuarial analysis for liability coverage creates specific, cost-aligned policies and programs. But data isn’t a person. And malpractice is not always a measurable action. A patient’s propensity to sue is based on many factors, not the least of which is their perceived relationship with their provider(3).

While an evidence-driven trend may exist, the real question is how to harness this data into actionable future risk mitigation. Does the defense of malpractice suits only play a reactive role in the healthcare industry? Certainly, more research is needed to determine whether statistics can be used for quality improvement efforts, including counseling, training, and supervision.

Contact us if you are interested in learning more about how actuarial analysis aids us in forecasting your practice’s litigation potential.

Footnotes

  • https://www.nejm.org/doi/full/10.1056/NEJMsa1506137
  • https://www.physiciansweekly.com/examining-proneness-to-malpractice-claims/
  • https://www.nytimes.com/2015/06/02/upshot/to-be-sued-less-doctors-should-talk-to-patients-more.html

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

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

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.