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 world’s most successful medico-legal plaintiff ever? Answer: The Federal Government! Chart review isn’t 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: What’s 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: Don’t 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-associated 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 physician’s 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 < 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-up24 • Child would have no future 23 • Needed information20 • 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 didn’t write it down, you didn’t 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. Don’t 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 provider’s 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 you’re 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. • Don’t 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 else’s 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: Patient’s mother stated “you are a freaking crazy!” • No: “Patient’s 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 backup’s 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. • Don’t lay blame: “Psych consult’s 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. • Plaintiff’s attorney’s know full well you’re overworked and they want to prove it. • Don’t let your level of detail slide towards the end of the day. • Tip #19: She’s 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 patient’s 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 DON’T LET YOUR PATIENT FEEL “DIMM”: Deserted Ignored Misunderstood Misled Studies show: If they like you, they won’t 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 attorney’s 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. • Don’t discharge or let the patient go until all orders are completed or explained away.

30. Tactic 4 • DON’T 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, don’t 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 • Don’t leave your medical malpractice carrier out of the picture! • Don’t hang yourself using words like “fault” or “cause”

32. Tactic 6 • DO WHATEVER YOU CAN TO LIVE WITH • A SMALLER PATIENT PANEL • Plaintiff’s lawyers and juries won’t give you a pass because you’re busy and overworked. • Studies show that the more time spent with patients the lower the incidence of med-mal claims • PCPs: Plaintiff’s 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 Couldn’t Answer at the Time? Tad Linn Tlinn@PrimeCareUtah.com (801) 557-3336 cell