Electronic Health Records What is Being Recorded?

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1 Dateine A NEWSLETTE FO MLMIC-INSUED PHYSICIANS & FACILITIES isk Management Strategies 2 for S6800 Lavern's Law Case Study: Ignored 4 Contraindications Lead to Amputation Don't Fumbe a Hand Off 7 The Proper Way to Cose 8 a Practice ecent Insovencies Speak 9 to the isks of Insuring with an G Event Caendar Tip #23: Managing Patient 14 Noncompiance MLMIC esearch Library 15 Spring 2018 Update Eectronic Heath ecords What is Being ecorded? Mia VanAuken, Esq. Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company In the age of eectronic heath records (EHs), a users shoud be aware of the eectronic footprint that is eft behind when they og out. A eectronic documents, such as word processing documents and spreadsheets, contain VOLUME 17 NUMBE 1 The near-universa impementation of eectronic heath records by the heathcare industry, and the speed at which this dramatic change has occurred, has brought new chaenges and pitfas to heathcare practitioners in a speciaties. The foowing artice is the first in a series in which Dateine wi examine these emerging exposures and offer practica guidance to MLMIC poicyhoders on how to safey and effectivey mitigate them. metadata, which is the data about the data. This information does not appear on the face of a document, but it is a part of the document nonetheess. continued on page 10 spring 18 MLMIC.com MLMIC Dateine is pubished under the auspices of MLMIC s Patient Safety & Education Committee, Donad J. Pinas, MD, Chairperson. Editoria Staff John Scott, Editor Katheen L. Harth Matthew Lamb, Esq. obert Pedrazzi Mariyn Schatz, Esq. Daniea Staone Linda J. Trentini, CIC Mia VanAuken, Esq. Michae Zeffiro, Esq. The Latest Deveopment in the Berkshire Hathaway Transaction On Juy 15, 2016, MLMIC and Nationa Indemnity Company (NICO), a Berkshire Hathaway company, entered into a definitive agreement to acquire MLMIC. The acquisition wi invove the conversion of MLMIC from a mutua to a stock company. The cosing of the transaction is subject to various reguatory approvas (incuding the NYS Department of Financia Services), customary cosing conditions and the approva of the MLMIC poicyhoders eigibe to vote on the proposed demutuaization and sae. On February 23, 2018, the parties agreed to an acquisition price of approximatey $2.5 biion and signed an amended acquisition agreement to refect the purchase price and cosing procedures. The parties currenty expect this acquisition wi be competed in the third quarter of Pease visit our FAQs page at MLMIC.com for the most current information. Shoud you have any questions, pease ca

2 isk Management Strategies for S6800 Lavern's Law Donnaine ichman, Esq. Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company Mark Ambrose, N, MBA isk Management Consutant Medica Liabiity Mutua Insurance Company On January 31, 2018, Governor Andrew Cuomo signed S6800, aso known as Lavern s Law, a bi that extends the statute of imitations by appying a date of discovery rue to medica and denta mapractice actions where there is an aeged faiure to diagnose cancer or a maignant tumor, whether by act or omission. This is a significant issue for MLMIC poicyhoders because with a onger statute of imitations, memories wi fade, witnesses wi become unavaiabe, and the standard of care may change, so thorough documentation is more important than ever. The best defense for physicians who face an extended statute of imitations under Lavern s Law for the misdiagnosis of cancers/tumors is to maintain compete, detaied, timey and reevant medica record documentation. Thorough documentation is crucia, and in the eectronic heath record (EH), a check boxes must be marked positivey or negativey to confirm that the physica examination was compete and that certain conditions/types of cancer reevant to the patient s compaints were considered. If the tempates or check boxes on the computer are not appropriate for such documentation, you shoud discuss with your vendor adapting the program to the needs of your particuar speciaty and eiminate irreevant items on the tempates. The foowing strategies are offered to address the risks inherent with an extended statute of imitations for misdiagnosed cancer cases: 1. Document the patient s history, which shoud incude the foowing: a. The patient s compaint and whether it is a repetitive compaint. The best defense for physicians who face an extended statute of imitations under Lavern s Law for the misdiagnosis of cancers/tumors is to maintain compete, detaied, timey and reevant medica record documentation. b. eevant information contained in the records of a prior treating physician. c. A famiy history of cancer, incuding the type and age of onset. d. isk factors for cancer, incuding, but not imited to: i. diet, exercise and obesity. ii. acoho consumption. iii. tobacco use (current, past, and present) in terms of packs per day or use of e-cigarettes for vaping. iv. chemica and environmenta exposures incuding proonged sun exposure, radon, occupationa hazards, radiation, and hormona therapy incuding birth contro pis and postmenopausa estrogen. v. increased number of sexua partners. vi. nuiparous status or mutiparity of three or more chidren. 2. Document the positive and significant negative findings of the physica examination. 3. Document a differentia diagnosis, ruing out more serious diagnoses, if appropriate. 4. Document the diagnostic tests and consutations that are ordered. 5. eview the incoming diagnostic tests and consutation reports in a timey manner and document both the review and the notification of the patient of both positive and negative findings: a. Impement a ticker system to make sure test and consutation reports are received. b. Document a patient foow-up efforts if reports of tests/ 2 MLMIC Spring 2018 MLMIC Dateine

3 consutations are not received because the patient faied to compy as recommended. 6. Document the patient s understanding of positive resuts and the proposed treatment pan. a. Foow up by teephone, then mai, on missed or canceed appointments after positive findings/resuts are discosed to the patient. The teephone cas shoud be made by the physician if the patient has an increased risk of cancer. b. Document attempts to get the patient to compy with the treatment pan. 7. Document patient education, incuding the patient s understanding of recommended cancer screening tests and examinations for coon, breast, ora, cervica, uterine, ovarian, prostate, ung, and other types of cancer (incuding genetic testing): a. Document the patient s compiance or informed refusa to undergo such cancer screening tests and examinations. 8. Document a referras to speciaists to rue out potentia risks or conditions, and document a communication with these speciaists: a. If no referra is made to a speciaist, the record must contain the rationae for not referring, incuding whether this resuted from the patient s informed refusa. b. Document the notification to the patient of a positive resut, even when the speciaist or consutant has aso received that positive resut. 9. Faied efforts to bring about compiance in a noncompiant patient shoud be handed with a discharge from practice etter containing a warning of the potentia risks to ife and heath due to the patient s noncompiance. 10. etain medica records of aduts (18 years or oder) for at east ten years from ast payment or date of ast service, whichever is onger. There are many risk management strategies that heathcare providers and practices can impement to decrease the potentia risk of iabiity and improve patient safety. Adopting these recommendations into a we-rounded risk management program wi hep reduce the risk of patient injury. In the event that there is itigation, detaied documentation wi contribute to a strong defense. The isk Management Department of MLMIC Services, together with the attorneys at Fager Amser Keer & Schoppmann, LLP, offer educationa programs and presentations that specificay address Lavern s Law. These programs are provided to MLMIC poicyhoders throughout New York State and offer guidance designed to manage the risks and reduce the exposures presented by this aw, a at no additiona cost to our poicyhoders. For additiona resources, pease contact the isk Management Department at MLMIC Services and/or the attorneys at Fager Amser Keer & Schoppmann, LLP. MLMIC MLMIC Dateine Spring

4 C ase Study Ignored Contraindications Lead to Amputation Heen Granich Caims Unit Manager Medica Liabiity Mutua Insurance Company This case invoves a then 37-yearod morbidy obese femae who presented to our insured heath system in eary June 2009, and was seen by an empoyed physician s assistant (PA). She had undergone a Pap smear at Panned Parenthood and examination reveaed an enarged cervix. She was gravida 5, para 5, with one chid iving for ony a short whie after deivery. Her chief compaint was heavy menses. Pevic and recta exams were conducted and the diagnosis incuded back and pevic pain. Bood tests reveaed anemia with a hemogobin and hematocrit of 11.9 and 36.9, respectivey, with microcytosis. A pevic utrasound was ordered and read as norma. She continued to compain of pevic pain, which worsened during her cyce. The record refects that she advised our PA that her periods are heavy but reguar. She has had a tuba igation. The patient was seen again three weeks ater and was diagnosed with pevic pain and possibe endometriosis. It was noted that in regards to her pevic pain, we wi start her on Ortho-Novum 777 (OCP). Did discuss the risk and benefits of this medication with her incuding the risk of thrombus and breast cancer. She does smoke and I have encouraged her to quit. She was aso diagnosed with iron deficiency anemia probaby reated to heavy menses and was started on iron sufate. In August, she was seen for foow up and a physica. At this time, it was charted...paced her on birth contro pis hoping that this woud hep in terms of her heavy menses. She states that she does continue to have heavy menses. The past medica history incuded asthma, and a review of systems reveaed chronic cough and chronic back pain, for which recent injections offered no reief. She was diagnosed with dysmenorrhea/menorrhagia and referred to our insured obstetrician-gynecoogist (OB). She was continued on iron for her anemia, inhaers for her asthma, and birth contro pis. At the end of September 2009, the paintiff was seen by the OB for the first time. ecords from the PA s office were faxed to the OB s office and incuded the diagnosis of dysmenorrhea/menorrhagia, but there was no reference to treatment with OCPs. However, the patient intake form did indicate that she was taking birth contro pis and incuded a history of smoking ½ pack per day for over 20 years. The OB noted in the margins of the form that the paintiff had a biatera tuba igation, was on 777 birth contro, and was a smoker needs to stop counse. His progress note from this date simiary refects needs to stop adjacent to the isting for Ortho-Novum 777 under the Medications heading. The patient noted that her ast menses were ight and stringy. The OB s physica findings incuded 1+ tenderness of the cervix and 2+ tenderness of the uterus and suprapubic area of the abdomen. He fet it was possibe she had endometritis, but did not fee she had endometriosis at this time, which was the prior diagnosis made by the PA. The OB noted the patient had dysmenorrhea. Doxycycine was prescribed as a therapy for endometritis and he further prescribed Anaprox, a nonsteroida anti-infammatory, for her compaints of pain and discomfort. She was to return to the office in two weeks. The patient returned in mid- October as panned. Medications were isted as abutero and Ortho- Novum 777. It was noted that there was some improvement and there no onger was any suprapubic tenderness, but the cervix and uterus were sti tender at 1+ and 2+, respectivey. The patient now compained of dyspareunia with pevic pain. The OB aso considered scar tissue and endometriosis as possibe causes. 4 MLMIC Spring 2018 MLMIC Dateine

5 Options were discussed, incuding diagnostic aparoscopy or Lupron Depot treatment. The paintiff chose a aparoscopic approach and the OB documented a discussion regarding the risks, benefits, and aternatives. The paintiff fied another prescription for ora contraceptives two days after this office visit. As with a prior refis, our PA was noted as the prescribing provider. Within severa weeks of this office visit, the paintiff had an onset of headaches at the back of her head and eventuay decided to go to the E. The chart refects that she presented with compaints of a migraine headache for two days. Her prior medications incuded birth contro, abutero, ibuprofen, and Tyeno. She underwent a CT of the brain without contrast that reveaed an intracrania mass, specificay a hypodense sharpy demarcated esion in the right cerebear hemisphere that measures 3 x 2 cms. Eary the next morning, she was transferred to a arger community hospita for neurosurgica evauation and treatment, where she was diagnosed with an acute cardiovascuar accident (CVA). Ten days ater, as a resut of a brachia artery cot, she underwent an amputation of the right arm at the mid-forearm eve. Prior to the amputation, she had undergone a thrombectomy but was not treated with Heparin for the cots due to the CVA. She then re-cotted, resuting in the amputation. The paintiff commenced a awsuit in which she caimed our poicyhoders: faied to recognize the risk factors and/or her medica/persona history, which indicated that she was prone to the deveopment of thromboses; faied to deveop an appropriate differentia diagnosis; and prescribed ora contraceptives when they knew or shoud have known that these were contraindicated in a patient presenting with high risk factors for thrombosis incuding tobacco abuse, migraines, obesity, anemia, and ow iron bood eves. There was aso a caim for ack of informed consent. The paintiff testified that she had agreed to the surgery, but denied ever discussing the risks and benefits of the procedure with the OB, which was contrary to the medica record. She aso admitted to smoking anywhere from one-haf pack to one and one-haf packs of cigarettes per day, the significant increase of which was never discosed to her providers. The OB s office records contained a etter he wrote to the treating PA. Unfortunatey, the etter bore two dates, one being the date of the first visit in ate September and the other date being the day of the mid-october visit. The OB testified that he authored the etter some time after the mid-october visit, but did not know whether or not it was ever sent. There was no copy of this etter in the record of the PA, who denied receipt of it. In the etter, the OB wrote that he suggested the patient stop OCPs as cyces reguar and she is a >35 smoker. He further wrote that he fet she had endometritis, that the beeding had stopped, and the pain had decreased. The OB aso testified about his use of the word suggested in the context of instructions to the patient to stop taking birth contro pis. He carified that he did not contact the PA, but did instruct the paintiff to go see him for the purpose of having the PA continued on page 6 MLMIC MLMIC Dateine Spring

6 C ase Study continued from page 3 consider the possibe discontinuance of the ora contraceptives. The matter was reviewed by experts in the fied of OB/GYN and neuroogy. Both our in-house and outside experts were critica of the care rendered by the OB and fet that, based on the paintiff s history of tobacco use, migraines, obesity, and anemia, he shoud have discontinued her use of ora contraceptives. They opined that the paintiff had been referred to him due to heavy beeding, and ora contraceptives were prescribed for this very issue. In addition, both experts agreed that as of August 2009, the paintiff s care was essentiay transferred to the OB, who shoud have counseed the paintiff about discontinuing smoking whie taking OCPs. The defense of this case was further hampered by the fact that the OB was unabe to find his chart when a copy was requested by the patient s attorney. In addition, the two different dates on the etter found in his fies eft him vunerabe to a jury being persuaded that he had atered the records. More probematic, however, was the fact that the OB had been practicing under the terms of a non-discipinary Order of Conditions during the time he was treating the paintiff. The OB subsequenty surrendered his icense during the course of this itigation as he was officiay suspended by the State of New York at the end of Two and one-haf years after the awsuit began, the paintiff s attorney made a settement demand of $2.3 miion. Negotiations were undertaken and the case was finay resoved for $850,000, a of which was paid under the OB s insurance poicy. A Lega & isk Management Perspective Mariyn Schatz, Esq. Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company This case was repete with facts and negative inferences which were adverse to a the defendants. The mismanagement of the patient s care made the awsuit difficut to defend, and dangerous to present to a jury. The sympathetic overay of the oss of a imb contributed to the necessity of agreeing to a settement. The defense of the case was severey compromised by numerous errors and omissions, as we as impications of medica record fasification. The physician assistant (PA) was initiay responsibe for prescribing ora contraceptives on five occasions. He acked fu appreciation of the mutipe contraindications for an overweight patient who smoked a reported one-haf pack of cigarettes a day for twenty years, and was over age 35. These are the very risk factors that substantiay increase the ikeihood of a thrombotic event, which this patient utimatey experienced, resuting in amputation of her arm. It is we estabished that smoking cigarettes whie taking birth contro pis is a etha combination, and the odds of facing compications are significanty higher for patients who are over age 35. The PA was empoyed by the defendant hospita and appeared to be working autonomousy when he estabished a care pan for the patient. There was no documentation that he consuted with his supervising physician, who was not named in this suit, or that he had any communication with the defendant physician to whom he referred the patient. Athough PAs may see patients independenty, it shoud be noted that physicians who supervise or empoy them are utimatey responsibe for the medica care PAs provide. Faiure of a supervising physician to appropriatey oversee a PA coud resut in a finding of professiona misconduct by the Office of Professiona Medica Conduct (OPMC). 8 NYC 29.2(a)(5). The defendant physician who saw the patient as a referra noted her use of birth contro pis. However, his documentation did not refect that the patient was instructed to stop taking ora contraceptives. The physician s ack of a thorough assessment and review of medications resuted in faiure to appreciate the risks to the patient. As a resut, he ost the opportunity to intervene on her behaf after she aready took severa months of pis prior to becoming his patient. Faiure to communicate with the PA and insist continued on page 12 6 MLMIC Spring 2018 MLMIC Dateine

7 LEGAL Don t Fumbe a Hand-Off Joint Commission Issues Sentine Event Aert Daye Sace, Paraega Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company On September 12, 2017, the Joint Commission issued a Sentine Event Aert on the topic of inadequate hand-off communication. Hand-offs, or transfers of patient care from one provider to another, are a frequent, persistent probem in heathcare because poor communication of crucia patient information during this deceptivey simpe process puts patient safety and continuity of care at risk, often resuting in patient death or serious injury. As stated in the aert, A study reeased in 2016 estimated that communication faiures in U.S. hospitas and medica practices were responsibe at east in part for 30 percent of a mapractice caims, resuting in 1,744 deaths and $1.7 biion in mapractice costs over five years. The aert contains information about a number of methods and toos that heathcare organizations can utiize in order to standardize and improve hand-off poicies and procedures, incuding the Commission s Targeted Soutions Too (TST) for Hand-Off Communications, to which accredited organizations aready have access. Heathcare organizations and providers are urged to use this too to assess the effectiveness of current hand-off procedures, impement a means to coect interna data on hand-off faiures and probem areas, and deveop forms and processes to standardize the coection and effective communication of crucia patient information. According to the Joint Commission, by using TST to reduce the number of adverse events reated to poor hand-off communication, one hospita reduced its overa incidence of inadequate hand-offs by 58.2%. For assistance with risk management questions regarding the hand-off process, pease ca an attorney at Fager Amser Keer & Schoppmann, LLP, in Syracuse ( or ), Latham ( ) or Long Isand ( ). MLMIC MLMIC Dateine Spring

8 LEGAL The Proper Way to Cose a Practice Donnaine ichman, Esq. Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company When a physician contempates retiring or cosing a practice, there are key steps which must be taken before the practice can be cosed. It is particuary important that a of these steps be competed in a timey manner. The first step is making a firm decision about when you wish to cose the practice or when you have to do so, if the cosing is not due to retirement. This decision wi permit you to carefuy pan the cosure so that you provide sufficient time to notify patients, staff, vendors, and insurance companies. Once you have determined that date, you must notify your patients of your decision. We recommend that you provide at east thirty days notice. This notice shoud be onger if your patients medica conditions justify a onger period. You aso need to consider whether your speciaty is immediatey avaiabe to your patients in your geographica area. This wi permit your patients to transition to another practice without having serious gaps in care. If you practice obstetrics or any surgica speciaty, you wi need to consider when to stop performing such care before the cosing date, since you wi be unabe to perform postpartum or postoperative visits after your practice is cosed. If you have patients who take medications on a reguar basis, you wi have to provide sufficient refis for a reasonabe time unti the patient can make an appointment to see a new physician. However, you must sti compy with the aws and reguations governing prescriptions for controed substances. You aso need to notify the Medica Liabiity Mutua Insurance Company (MLMIC) Underwriting Department of the ast date your office is actuay open, since you wi need to make certain the staff remaining in the office to provide patients with access to their medica records do not provide medica advice to these patients. If you are going to practice at another site or in another part of the state, you wi need to notify MLMIC of that change as we. If another physician wi be assuming your practice, you need to advise your patients of this and encose an authorization with your etter. This permits this new physician to gain access to the records of patients who choose to transfer care to him or her. If there is no person who is assuming your practice, refer your patients to the oca medica society or, as appropriate, hospita referra service or speciaty society to obtain the names of other physicians in the area. If you intend to store your own medica records for the appropriate statutory time periods for aduts and minors, you must be abe to provide copies of the records upon a patient s request in the manner they request, pursuant to HIPAA and HITECH. If you intend to store your records in your home or space you rent, you must store your records in a safe, waterproof, ocked area. Do not give your origina records to the patient, as that wi make it extremey difficut to defend you ater in a medica mapractice case. If you are eaving your records in the possession of another physician or group, the patients shoud be advised where to access these records. Further, we recommend that you enter into a written agreement with that physician or group that aows you to access a copy of these records in the event of a awsuit, investigation, or proceeding by OPMC, Medica/Medicaid, or another governmenta agency. Aternativey, you can arrange to use a medica record storage company to retain the records for the statutory and recommended periods for retention. A of this written information as we as answers to your specific questions can be obtained by contacting an attorney at one of the offices of Fager Amser Keer & continued on page 12 8 MLMIC Spring 2018 MLMIC Dateine

9 ecent Insovencies Speak to the isks of Insuring with an G A Mercado, Esq. Fager Amser Keer & Schoppmann, LLP Counse to Medica Liabiity Mutua Insurance Company Among the risks of insuring with risk retention groups (Gs) is a ack of insovency protection for poicyhoders. Since Gs are not icensed in NYS, they are not eigibe for protection by the NYS Property/ Casuaty Insurance Security Fund and their poicyhoders are not protected by the state s guaranty fund when such an G becomes insovent. Unfortunatey, physicians in NYS wi experience this and others risks if insured by an G that is decared insovent. As a service to our poicyhoders, we are providing information that describes what to expect if your G is decared insovent. In genera, when an G is decared insovent, it wi be paced into iquidation by the insurance commissioner of its domicie state. Liquidation is a type of receivership and is simiar to bankruptcy. The insurance commissioner wi be charged with tasks that incude taking possession of the assets of the insovent G, conducting its business, and winding-up the affairs of the insovent G, a under court supervision for the protection of the poicyhoders, creditors and the genera pubic. The effect of iquidation on a poicyhoder creates a series of probems, distractions and disruptions. Foremost is that existing insurance coverage wi, at worst, cease to exist before the poicy expiration date or, at best, provide far ess financia protection than originay agreed to and purchased. Poicyhoders wi be faced with immediatey procuring repacement coverage and the accompanying business disruption. For those poicyhoders activey engaged in mapractice itigation, there wi be even more financia uncertainty because they wi then be responsibe for paying some or a of their defense costs and indemnity payments. Beyond these increased financia obigations, the itigation process wi be stayed for an extended period of time, meaning that the awsuit wi remain open for an extended period of time. In a insovency events, the outcome is cear: the insovent G wi not have sufficient remaining assets to satisfy its obigations to its poicyhoders, creditors or the genera pubic, and a poicyhoder wi be subject to greater financia exposure couped with a the attendant distracting professiona and business disruption. MLMIC urges physicians in New York to famiiarize themseves with a the risks before opting for coverage from an G. In many cases, Gs fai due to pricing practices that cannot bear the weight of the company s responsibiity to protect its poicyhoders. Utimatey, what appears to physicians to be a more cost-effective option can ead to additiona and even higher costs and greater financia risk. MLMIC MLMIC Dateine Spring

10 Eectronic Heath ecords continued from page 1 Metadata incudes a fie s name, ocation, format, and size, but it can aso incude the dates and times of its creation and modification, as we as the dates and times of users access. Simiary, the software and hardware of EH systems aso automaticay generate this type of information, which is not readiy seen by the user, but is sti maintained by the system. In fact, both the state and federa reguations dictate what type of metadata must be maintained when an EH system is used. 1 These reguations require medica centers to have certain technica capabiities within their technoogy to ensure security and confidentiaity. The reguations require the assignment of a unique identifier, usuay the username, and the user must certify in writing that the account is confidentia and accessibe ony to the authorized person. 2 These provisions ensure that any activity is performed by the assigned individua and aows for the tracking of a particuar individua s activity. 3 This authentication is aso meant to prevent unauthorized ateration or destruction of protected heath information. 4 The act of sharing usernames is not ony a vioation of a medica center s poicies, but it impedes the purpose of these reguations. Within New York s reguation for the authentication of medica records, the state requires each eectronic entry, order, or authentication to be recorded in the medica record as to: (1) date, (2) time, (3) category of practitioner, (4) mode of transmission, and (5) point of origin. 5 Likewise, the federa reguation imposes the use of hardware or software that records activity in the information system. 6 The federa audit og must contain: (1) the exact date and time of the access event and the exit event, (2) [u]nique identification of the patient, (3) [u]nique identification of the user of the heath information system, (4) specific inquiry, any changes made, and a deete specification, and (5) [s] pecific category of data content, such as demographics, pharmacy data, test resuts, and transcribed notes type. 7 This mandatory metadata is recorded in an audit og, which is required to be accessibe by the medica center. As attorneys, administrators, and reguators become increasingy aware of the existence of an audit og, this information is paying a arger roe in ega proceedings. When a user ogs into the medica record system, neary every action is recorded, as we as the ocation of the access, e.g., residence, hospita, or office. This means that any ateration of an EH is recorded in detai and no information can be deeted permanenty. Some of the ogged data that is ess conspicuous incudes the ength of time of a user s activity or the areas of the record that were accessed. In ega proceedings, audit ogs can be used to authenticate a medica record. 8 For exampe, this information coud be used to verify or disprove a user s testimony regarding the time he or she was present at the hospita or the time the ab resuts were viewed. In one medica mapractice action, the audit og was used to quantify the eve of invovement of the emergency department physician in a paintiff s care. 9 Users shoud be aware that their memories of events can be verified or nuified with more than just the EH; the 10 MLMIC Spring 2018 MLMIC Dateine

11 audit og behind the record can aso be used. It is safe to assume that every action taken on an EH from access to exit is recorded and, thus, capabe of being produced. Accordingy, users of EHs shoud approach their access to these systems with the acknowedgment that their actions can be examined. Any abuse or inappropriate access can be recaed by the medica records system. To avoid actions being wrongy attributed to him or her, a user shoud never eave a work station without ogging out and shoud never share password information. ENDNOTES 1. See 45 C.F ; (The objective of the Heath Information Technoogy for Economic and Cinica Heath Act is to protect eectronic heath information) and 10 N.Y.C (c)(3-4). 2. See 10 N.Y.C (c)(4)(i-ii); see aso 45 C.F (d). 3. See id. 4. See 45 C.F (c)(1-3). 5. See 10 N.Y.C (c)(3). 6. See 45 C.F (b). 7. See 45 C.F (e)(1)(i). 8. See Vargas v. Lee, 2015 N.Y. Sip Op (U) (June 10, 2015); Gibert v. Highand Hosp., 52 Misc. 3d 555 (Sup. Ct. Monroe Cty. Mar. 24, 2016)) 9. See Gibert, 52 Misc. 3d 555. MLMIC Physicians and Surgeons Professiona Liabiity Coverage for Dispensing Medica Marijuana in Accordance with Law MLMIC insured physicians and extenders who meet NYS DOH requirements set forth in New York Codes, ues and eguations 10 NYC (a), which addresses practitioners seeking to issue certifications for their patients to receive medica marijuana products, and who so prescribe such in compiance thereof, can rest assured that their medica mapractice coverage (known in the industry as Medica Professiona Liabiity Insurance or MPLI ) through MLMIC is appicabe for such activity under the terms and conditions of their poicy. Whie our Physicians and Surgeons Professiona Liabiity (PSE) poicy contains an excusion for Unapproved Drugs, Substances or Medica Devices, in part and parce for iabiity arising from the use or prescription of drugs, substances or medica devices which have not been approved by the U.S. Food & Drug Administration for any use, recent egisation as referenced above now approves the use of medica marijuana for certain severe, debiitating or ife threatening conditions as further described therein. Consequenty, this poicy excusion as appied against the above criteria woud not be appicabe and therefore coverage, under the provisions of the MLMIC PSE poicy for the rendering of such professiona services is otherwise afforded to our Insureds. reguations/medica_marijuana/ practitioner/ MLMIC MLMIC Dateine Spring

12 Proper Way to Cose continued from page 8 Schoppmann, LLP (FAKS). For instance, there are: memoranda containing guideines for the cosure of a practice and the retention of records; a tempate etter for notification of patients; and a tempate agreement for retention of your records by another physician or group which shoud be reviewed by your business counse before proceeding with it. If the office cosure is due to an unanticipated heath condition or the death of a physician, FAKS can aso provide additiona advice about cosing the office. Finay, you wi need to contact your business counse about how to notify a medica insurers with whom you participate, your premises iabiity insurer, and any other reevant carriers, as we as what your responsibiities are with respect to your empoyees and office. C ase Study continued from page 6 that this contraindicated prescription be discontinued resuted in the PA s additiona renewa, foowed by the amputation one month ater. Many other factors compromised the defense of this awsuit. The patient stated at her deposition that she was not informed by either the PA or physician that smoking whie on birth contro pis increased her risk for bood cots, or that she shoud discontinue one or the other. The PA documented a discussion of the risks and benefits of ora contraceptives, but the physician s chart acked any reference to addressing this very issue with the patient. His documentation aso faied to address that the patient was tod to stop smoking. The physician s note simpy stated that he suggested this to the patient. Athough the patient s credibiity was certainy questionabe, entries in the physician s medica records were too patry to unequivocay refute the patient s assertion regarding ack of informed consent. The physician s consutation etter, which was dated with each of the patient s two visits to his office, aso presented many difficuties for the defense. This etter was absent from the PA s records, and the PA denied receiving it, which added to the specuation as to when it was actuay written. These circumstances were strongy suggestive of professiona misconduct by the physician based on a fasified medica record. In addition, he was working under a non-discipinary Order of Conditions during the time he treated the patient. Since the physician was aready under investigation by the OPMC for reasons unreated to this patient s treatment, it was too dangerous to put him on the stand in his own defense at a tria. The physician wrongy presumed that the patient was no onger his responsibiity when he, in fact, had a non-deegabe duty to manage her care. eferring her back to the PA, a mideve practitioner, was further indication that he faied to appreciate the potentia dire consequences of the patient s treatment regimen. As the more senior and experienced medica professiona, it was his obigation to take contro, manage the patient s course of treatment, and make appropriate referras. The physician was responsibe for reviewing, continuing, and/or changing the treatment pan that was initiated by the PA. Athough the PA handed the origina pan of care, the physician had the ast cear chance to ater the course of events. His ack of any communication with the PA, inadequate and/or ack of discussions with the patient, insufficient and questionabe documentation, and attempt to shift responsibiity of the patient s care to the PA, resuted in a settement soey on his behaf, without any monetary contribution by the other defendants. Lack of support from any defense experts who reviewed the case, and the physician s difficuty in finding his records, couped with his icensure issues, contributed to the concusion that settement was the ony avaiabe option. 12 MLMIC Spring 2018 MLMIC Dateine

13 EVENT Caendar 2018 In 2018, MLMIC wi be participating in the foowing events throughout New York State. For more information on MLMIC s invovement in these events and others, pease contact Pastor Jorge, Manager, Marketing Services, at March Apri 11 Apri Apri Apri 28 May 2 May 3 June 1 June 2 June 7-8 June June September 21 MSSNY House of Deegates - Buffao Monroe County Medica Society Ask The Carrier Event - ochester New York State Osteopathic Society - egiona Osteopathic Convention - Hauppauge New York State Pain Society Annua Meeting and Scientific Sessions - West Harrison MSSNY-MSCK New York Heath Information Technoogy Symposium and Expo - Brookyn Monroe County Medica Society 197th Annua Meeting - Pittsford Westchester County Medica Society Networking Event - Emsford ACOG District II 2018 egiona Meeting - ochester New York Chapter American Coege of Physicians Annua Scientific Meeting - ye Brook New York MGMA 2018 State Conference - Syracuse New York State Academy of Famiy Physician s Annua Congress of Deegates - Troy HANYS Annua Membership Conference - Saratoga Springs New York State Ophthamoogica Society Annua Meeting - Garden City September New York State Bones Conference - Saratoga Springs September 22 October 3 October December 7-11 New York State Society of Orthopaedic Surgeons Annua Meeting - ochester Westchester Academy of Medicine Annua Gof Outing and Fundraiser - ye ACOG District II Annua Meeting - New York City New York State Society of Anesthesioogists Post Graduate Assemby in Anesthesioogy (PGA) - New York City MLMIC MLMIC Dateine Spring

14 Tip #23: Managing Patient Noncompiance The isk: Patient noncompiance is one of the most difficut chaenges for heathcare providers. Noncompiance may incude missed appointments and the faiure to foow a pan of care, take medications as prescribed, or obtain recommended tests or consutations. The reasons given by patients for noncompiance vary from the denia that there is a heath probem to the cost of treatment, the fear of the procedure or diagnosis, or not understanding the need for care. Physicians and other heathcare providers need to identify the reasons for noncompiance and document their efforts to resove the underying issues. Documentation of noncompiance heps to protect providers in the event of an untoward outcome and aegations of negigence in treating the patient. ecommendations: 1. Estabish an office poicy to notify providers prompty of a missed and canceed appointments. We recommend that this be done on a daiy basis. 2. Formaize a process for foow up with patients who have missed or canceed appointments, tests, or procedures. This process shoud incude recognition of the nature and severity of the patient s cinica condition to determine how vigorous foow up shoud be. a. Consider having the physician make a teephone ca to the patient as a first step when the patient s condition is serious. b. If the patient s cinica condition is stabe or uncompicated, staff shoud ca the patient to ascertain the reason for the missed or canceed appointment. c. A attempts to contact the patient must be documented in the medica record. d. If no response or compiance resuts, send a etter by certificate of maiing outining the ramifications of continued noncompiance. 3. During patient visits, emphasize the importance of foowing the pan of care, taking medications as prescribed, and obtaining tests or consutations. 4. Seek the patient s input when estabishing a pan of care and medication regimen. Socioeconomic factors may contribute to the patient s noncompiance. 5. To reinforce patient education, provide simpe written instructions regarding the pan of care. Use the teach-back method to confirm that patients understand the information and instructions provided. 6. With the patient s permission, incude famiy members when discussing the pan of care and subsequent patient education in order to reinforce the importance of compiance. 7. When there is continued noncompiance, patient discharge from the practice may be necessary. The attorneys at Fager Amser Keer & Schoppmann, LLC are avaiabe to discuss patient noncompiance and the discharge of a patient. 14 MLMIC Spring 2018 MLMIC Dateine

15 Spring 2018 Update The MLMIC esearch Library s services are avaiabe to a poicyhoders on a compimentary basis. Poicyhoders may submit a research request at the ibrary ink on MLMIC.com s homepage. Listed beow are some of the customized services avaiabe to answer your research request according to your speciaty, faciity and practice type: Literature and Internet Searches Medica Textbooks Docine etrieva Service LocatorPus Book Loans Standard of Care/Practice Guideine resources Aong with offering research services, MLMIC owns a arge coection of medica mapractice risk management book and DVD tites avaiabe to borrow for a five week oan. Pease visit the MLMIC esearch Library onine to earn more about newy added tites, process a oan request or send your risk management research question using Ask the Librarian at the website. To contact the Library directy, pease contact Judi Kroft, Library Administrator, at ext or jkroft@mmic.com. ecent Additions: The EMTALA answer book Jeffrey C. Moffat. Woters Kuwer; (Medicoega ). Guideines for perioperative practice. Association of Operating oom Nurses, Inc.; (Surgery ). HIPAA compiance handbook Patricia I. Carter. Aspen Pubishers, Inc.; (Medicoega ). HIPAA for managers: Meeting your responsibiities under the aw. Kantoa Training Soutions; (DVD ). Lega manua for New York physicians. Patrick Formanto, Joe M. Greenberg & Donad. Moy. New York State Bar Association; (Medicoega v.1 & 2). THE MLMIC esearch Library Obstetrica risk management paybook; American Hospita Association; ( M ). MLMIC Offices New York City 2 Park Avenue New York, New York (212) (800) Syracuse 2 Cinton Square Syracuse, New York (315) (800) Long Isand 90 Merrick Avenue East Meadow, New York (516) (877) Latham 8 British American Bouevard Latham, New York (518) (800) Buffao 300 Internationa Drive, Suite 100 Wiiamsvie, New York (716) The attorneys at Fager Amser Keer & Schoppmann, LLP are avaiabe during norma business hours to assist MLMIC insureds with a wide range of ega services, incuding, but not imited to, advisory opinions concerning heathcare iabiity issues, iabiity itigation activities, ecture programs, and consuting services. Heathcare aw, reguations, and practices are continuay evoving. The information presented in MLMIC Dateine is accurate when pubished. Before reying upon the content of a MLMIC Dateine artice, you shoud aways verify that it refects the most up-to-date information avaiabe. MLMIC MLMIC Dateine Spring

16 PESOT STANDAD U.S. POSTAGE PAID PEMIT #1174 NEW YOK, NY Medica Liabiity Mutua Insurance Company 2 Park Avenue New York, NY MLMIC.com The MLMIC.com Bog For the atest company news and insights into hot topics in the industry affecting physicians today, sign up for the MLMIC bog. See what the bog can do for you. Visit mmic.com/bog Bog MA 1 Case Studies Highight Importance of Veracity, Communication and Detaied Medica Histories The March 2018 edition of MLMIC s Case eview incudes case studies highighting the importance of veracity, communication and detaied medica histories. FEB 28 CMS to Enforce Hand Hygiene Guideines in Ambuatory Surgery Centers Infection transmission in heathcare faciities is strongy associated with poor hand hygiene. Starting this year, CMS surveyors wi issue citations when they observe any ambuatory surgery center empoyee faiing to foow proper hand hygiene protoco.