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Chart Review: How Not to Get Sued

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... 2002 The Vast Majority of Injuries Do Not Result in a Claim 27,179 adverse events due to negligence 26,764 with no malpractice claim (98%) ... – PowerPoint PPT presentation

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Title: Chart Review: How Not to Get Sued


1
Chart Review How Not to Get Sued
2
Disclosures
  • I have a financial interest in and am Chief Legal
    Officer for PrimeCare Direct LLC.
  • PrimeCare Direct is a private sector, for-profit
    limited liability company providing direct
    primary care and cost containment services to
    employers and other payors.

3
Part 1
  • A Little Perspective in an Age
  • of Malpractice Hyperbole

4
Pop Quiz Who is/was the worlds most successful
medico-legal plaintiff ever?
  • Answer The Federal Government! Chart review
    isnt just about medical malpractice lawsuits.
  • 2011 The Department of Justice announced a total
    of 4.1 BILLION in fraud abuse settlements
    and recoveries.
  • 2012 The DOJ announced 4.2 BILLION.
  • 2009-2012 The Feds have returned to taxpayers
    around 15 BILLION, up 6.7 BILLION over the
    prior four years.

5
Alleging fraud abuse is an extremelylucrative
business
Compare the top 3 most profitable industries
against actions brought by the Department of
Justice (DOJ)
INDUSTRY 1 Network and Other Communications
Equipment 20.4 2 Internet Services and
Retailing 19.4 3 Pharmaceuticals 19.3 FYI
34 Health Care Medical Facilities DOJ For
every dollar spent by the DOJ 2011, seven were
recovered from providers.
6
What was the national total for all med-mal
payouts in 2011?
Answer 3.1 Billion. The Feds have everyone beat
by over a billion dollars.
What was the total in Utah?
Answer 26,655,500
What was the average Utah pay-out?
Answer 256,303
Source Kaiser Family Foundation,
2011 http//www.statehealthfacts.org
7
Last Question Whats worth more, a med-mal
dollar or a fraud abuse dollar?
Answer A fraud abuse dollar Fraud and Abuse
payouts Med-Mal payouts come out
of your pocket are frequently
insured 4.2 billion
3.1 billion
8
Beware Public Sector Chart Reviews
Tip 1 Everyone (right down to the solo
practitioner) should have a written compliance
plan. Tip 2 That written plan should be
well-worn. Shrink wrap is not your friend in an
audit situation. Tip 3 It is simply no longer
true that the Feds only go after big guys
(hospital systems, etc.). Tip 4 Dont think
lack of bad intent is a defense (e.g., the
Reverse False Claim). Tip 5 Fear the
disgruntled employee as much as you fear the
disgruntled or grieving patient/family. Qui tam
actions can be VERY profitable for the
whistleblower.
9
PART 2Chart Review and Malpractice Risk
Management 20 tips
10
First a Few Stats
  • About 93 of all medical malpractice cases are
    resolved before trial (U.S. Bureau of Justice
    Statistics).
  • Average injured patient waits 16.5 months before
    filing a lawsuit. It takes an average of 27.5
    months to reach resolution.
  • Most common allegation for in-patient cases
    surgical error (34)
  • Most common allegation or out-patient cases
    diagnosis (46)
  • NEJM 2006 Obstetrician-gynecologists most
    frequently sued physicians (19), general
    surgeons (17) and primary care physicians (16).

11
To Err (a lot) is Human
  • IOM releases report To Err is Human (2000)
  • Estimates 44,000 to 98,000 unnecessary deaths
    each year due to medical error
  • Estimated 1,000,000 excess injuries due to
    medical error
  • More Americans are killed in US hospitals every 6
    months than died in the entire Vietnam War
  • Death rate equivalent to three jumbo jet
    crashing every two days
  • Note Numbers were based on the MPS and
    extrapolated to the general population

12
10 years later . . .
  • 2008 National Healthcare Quality Report (AHRQ,
    2009) from the Agency for Healthcare Research and
    Quality (AHRQ)
  • The report noted that patient safety had actually
    gotten worse instead of better.
  • One in seven hospitalized Medicare patients
    experienced one or more adverse events, and
    thousands of patients develop central-line-associa
    ted blood stream infections each year.

13
Views of the Public on Medical Errors
  • Percentage of adults experiencing an error
  • Medication or medical error
  • 22
  • Mistake at the physicians office or hospital
  • 10
  • Wrong medication or dose
  • 16
  • Source- The Commonwealth Fund, 2001

14
Nine Percent of Physicians Account for Fifty
Percent of the Complaints
of Complaints
Source Hickson, 2002
of Physicians
15
The Vast Majority of Injuries Do Not Result in a
Claim
27,179 adverse events due to negligence
415 malpractice claims (2)
26,764 with no malpractice claim (98)
14,180 with strong evidence of negligence
12,858 with disability
5396 with disability 6 mo (42)
7462 with disability lt 6 mo (58)
Source Localio, 1991
16
Reasons Why People Sue Their Doctors
  • Advised to sue by influential other 32
  • Needed money 24
  • Believed there was a cover-up 24
  • Child would have no future 23
  • Needed information 20
  • Wanted revenge, license 19
  • Communication-related motivations total 44

Percent Expressing Concern
Source - Hickson, 1992
17
The Great Paradox
The medical chart is the single most important
component in providing continuity of care. The
medical chart is the single most important piece
of evidence in a medical malpractice action.
18
The Golden Rule
  • Tip 1 If you didnt write it down, you didnt
    do it.
  • Plaintiffs lawyers AND juries usually believe the
    chart represents exactly what happened. The whole
    truth.
  • Verbal testimony to the contrary almost never
    prevails.
  • Your clear recollection almost never prevails.

19
  • Tip 2 Connect all dots. Dont leave smoking
    guns
  • An ordered test, but no test results in the chart
  • A lab value outside of range, but no explanation
  • A medication prescribed, but never written off
    (verified)
  • Avoid reading nurses notes at your own peril
  • Tip 3 Notwithstanding the first 2 tips, treat
    the patient, not the chart.
  • Providing appropriate care is a more effective
    defense than ordering every test under the sun.
  • Defensive medicine sets you up for perjury You
    either lie that you ordered clinically
    unnecessary tests/services simply to protect
    yourself, or you admit your tainted motivation
    and lose credibility.

20
  • Tip 4 Use abbreviations at your peril.
  • If you use abbreviations, make sure all medical
    providers know exactly what the abbreviation
    means (not just personnel in the same setting).
  • You cannot assume you understand another
    providers abbreviation you cannot assume
    another provider understands yours
  • When in doubt, pick up the phone
  • Tip 5 Clearly document your prelim and
    differential diagnosis
  • Document both what you did and why you did it.
  • Document why you chose one modality over another.
  • Surgeons ensure operative notes adequately
    explain your inter-operative findings and why you
    took specific actions/inactions

21
  • Tip 6 Document all discussions with other
    providers
  • If youre a resident, this is the GOLDEN RULE
  • Document discussions even if they do not occur in
    a setting where the chart is readily available
    (e.g., cafeteria, water cooler, your yacht,
    etc.).
  • Tip 7 Document all discussions with patients
  • Discussions regarding potential
    risks/complications are key
  • Discussions regarding patient responsibilities
    are key
  • ALWAYS document the presence of a witness (e.g.,
    nurse).
  • Tip 8 Document phone conversations (is there a
    specific field in your EMR?)

22
  • Tip 9 Timing is important.
  • Dont wait until the end of your shift to make
    chart entries
  • Timely make all entries (or as timely as
    possible) not only date the entries, but enter
    the time as well.
  • Make entries in chronological order and do NOT
    leave large spaces as someone may later enter a
    note out of chron order.
  • Always dictate/enter discharge notes on the
    day/night of discharge.
  • Tip 10 Your own observations only. But if you
    enter someone elses observations (e.g., spouse
    of patient) carefully document the source.
  • Tip 11 Chart objectively, never subjectively.
    Patient stated she drank a bottle of tequila,
    not Patient drank a bottle of tequila.

23
  • Tip 12 No personal or derogatory statements.
  • Yes Patients mother stated you are a freaking
    crazy!
  • No Patients mother is a royal pain in the
    rectum.
  • Tip 13 Print out (scan in) any emails/letters
    you write or receive regarding the case (as
    evidence of effective communication).
  • Tip 14 ALWAYS back up paper or electronic files
    and assure the backups are readily accessible
    (remember the Golden Rule).

24
  • Tip 15 NEVER EVER alter a medical record.
  • Paper Record Errors Draw a single line through
    the error, enter correction above/below and
    date/time.
  • EMR Know the system and follow the rules.
  • Tip 16 Conduct and clearly document a thorough
    P/E.
  • Your notes should portray you as conscientious,
    detailed and professional.
  • Understand that good P/E notes of a first
    encounter frequently either dissuade or persuade
    a med-mal attorney to move forward.
  • Tip 17 Avoid using charts to indict others.
  • Dont lay blame Psych consults office staff
    are morons. You may be starting an action into
    which you may be drawn.
  • Never use words like incompetent, negligent,
    etc.

25
  • Tip 18 Pretend your 30th patient of the day is
    your first.
  • Plaintiffs attorneys know full well youre
    overworked and they want to prove it.
  • Dont let your level of detail slide towards the
    end of the day.
  • Tip 19 Shes a patient, not a chief complaint.
  • Create chart entries that dispel any allegation
    that you do not value your patients. Miss
    Cornblatt stated the hospital makes her feel like
    a number. I responded, . . . . and otherwise
    assured . . . .
  • Document and respond to patients concerns to
    dispel any allegation that you do not take her
    concerns into consideration
  • Tip 20 Complete and document follow-ups.
  • You must be sure the patient received the
    diagnosis, result, etc.
  • Create entries that dispel any allegation of
    abandonment.

26
Part 3
6 Other Tactics for Avoiding Suit
27
Tactic 1
KNOW THAT BEDSIDE MANNER MAY BE YOUR BEST
DEFENSE DONT LET YOUR PATIENT FEEL
DIMM Deserted Ignored Misunde
rstood Misled Studies show If they like
you, they wont likely sue you.
28
Tactic 2
  • WELCOME AND DOCUMENT INFORMATION FROM OTHER
    PROVIDERS AND STAFF
  • Make liberal attempts to garner other opinions
    dispel any allegation that you are a lone,
    arrogant wolf with a god complex.
  • Ask the attending and other members of the
    medical team if there is anything else you should
    know that might affect your consult or
    recommendation.
  • Actually read intake forms and questionnaires
    (fertile ground for surgery-related lawsuits).

29
Tactic 3
  • FOLLOW UP TENACIOUSLY, EVEN AT THE RISK OF
    ANNOYING PATIENTS AND STAFF
  • Understand that evidence of lack of
    follow-through is a plaintiff attorneys bread
    and butter.
  • You/your staff MUST confirm every Rx prescribed
    is administered.
  • You/your staff MUST confirm every time-sensitive
    test, procedure, lab value and radiographic study
    are, in fact, timely performed.
  • Dont discharge or let the patient go until all
    orders are completed or explained away.

30
Tactic 4
  • DONT UNDERESTIMATE THE VALUE OF A THOROUGH
    CONSENTING PROCESS (NOT FORM)
  • Include what the patient must expect
    post-procedure.
  • Consider affirmatively asking the patient what
    she expects
  • When you get to the form, underline/highlight
    elements that are important to the particular
    patient
  • Employ witnesses, particularly where higher risk
    is expected
  • Whenever possible, dont leave the consenting
    process until the last moment (e.g., pre-op) use
    an office setting where possible.

31
Tactic 5
  • CONSIDER THE VALUE OF THE MEDICAL APOLOGY BUT
    EMPLOY ONLY AFTER TRAINING AND COORDINATION
  • Know the law
  • Consider attending a medical apology lecture or
    seminar
  • Dont leave your medical malpractice carrier out
    of the picture!
  • Dont hang yourself using words like fault or
    cause

32
Tactic 6
  • DO WHATEVER YOU CAN TO LIVE WITH
  • A SMALLER PATIENT PANEL
  • Plaintiffs lawyers and juries wont give you a
    pass because youre busy and overworked.
  • Studies show that the more time spent with
    patients the lower the incidence of med-mal
    claims
  • PCPs Plaintiffs attorneys have read the studies
    that show a PCP with a patient pane of 2,500
    would have to work 21.7 hours per day to provide
    needed (recommended) care.

33
Read
I KNOW YOUR BUSY BUT . . . Physician Protect
Thyself Alan G. Williams, J.D. Margol
Publishing, 2007 A very short, concise and
accessible risk management primer. 7 Simple Ways
NOT to Get Sued for Medical Malpractice
34
Question I Couldnt Answer at the Time? Tad
Linn Tlinn_at_PrimeCareUtah.com (801) 557-3336 cell
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