South Dakota MGMA 2014

Transcription

1 South Dakota MGMA 2014 Robert S. Thompson RT, JD, MBA, LLM, RPLU, CPCU Director of Education - MMIC 1

2 Topics for Today Risk Management & Malpractice Defined Claims Environment Patient Communication Communication/Teamwork Among the Healthcare Team Patient Orientation Follow-Up Systems Adverse Outcome Disclosure

3 Medical Malpractice Duty Breach of the duty (SOC) Injury caused by breach Damages Malpractice Plus (X Factor) Service Lapses Non-Clinical Issues Plaintiff Atty s Dream 3

4 Today s Environment Claims frequency stable Claims severity on the rise 1 in 4 Jury verdicts exceed $1.2 million The X Factor will continue the severity trend 4

5 Reasons for Today s Malpractice Environment Patient expectations and abilities Societal view of the system Societal view of the $ HIPAA The IOM Report of 1999 Shift in focus from clinical issues to service lapses 5

6 Severity Issues - 1 in 4 jury verdicts exceeds $1.2 million Jury Awards $20.5M for Fatal Liposuction The Legal Intelligencer May 27, 2008 Illinois Mother Settles Med/Mal Lawsuit for $15.35M The Insurance Journal May 28, 2008 New York Jury Awards $17.5M to Patient The Insurance Journal May 29, 2008 The St. Louis County Circuit had 7 cases since the start of 2007 where the plaintiff was awarded $2M or more Daily Record (Kansas City, MO) March 31, 2008

7 Malpractice risk by specialty 7.4% of all physicians face a claim each year 19.1% in neurosurgery 18.9% in thorarcic-cardiovascular surgery 15.3% in general surgery 5.2% in family medicine 3.1% in pediatrics 2.6% in psychiatry 1.6% of claims/year lead to indemnity payment Average indemnity payment was $274,887 By age 65 75% of physicians in low-risk specialties faced a claim 99% of physicians in high-risk specialties faced a claim Jena, A., et al. Malpractice risk according to physician specialty. NEJM August (7):

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9 Malpractice Lawsuits personal consequences Among surgeons studied, Involvement in lawsuit strongly related to Burnout Depression Recent thoughts of suicide Less career satisfaction Less likely to recommend medical career to children Balch, CM, et al. Personal Consequences of Malpractice Lawsuits on American Surgeons. J AM COLL SURG Nov 2011, Vol 213(5):

10 Patient Communication

11 The Most Common Medical Procedure The Face-To-Face Patient interaction 150K-200K in a career Very limited training Limited supervision in early stages of career No specific oversight as with other procedures

12 Patient Communication Single largest contributing factor to medical malpractice claims Simplistic - Patients tend not to sue doctors they can communicate with Involves the entire team Physicians, administration, clinical and non-clinical staff (80:20 Rule)

13 Patient Communication In virtually all specialties, communication errors or barriers are the main factors resulting in medical malpractice claims second only to errors of clinical judgment or technical error (Actual Malpractice) The major national Risk Management and Patient Safety trade organizations (ASHRM, NPSF, NAHQ, AMA, MGMA) have recently focused educational efforts more toward communication and culture, the soft sciences of healthcare

14 What contributes most to OB claims? Substandard Judgment (77%) Miscommunication (36%) Technical Error (26%) Inadequate Documentation (26%) Administrative Failures (23%)

15 What Contributes Most to Surgical Claims? Technical Skill (~67%) Clinical Judgment (~62%) Communication (~33%)

16 Communication and Claims In General Nearly 70% of all sentinel events named communication/teamwork issues as the root cause of the event (Joint Commission) Virtually every medical malpractice claim contains communication and/or teamwork issues

17 Medical Malpractice Claim Sources- Relationship/Communication Issues Caregiver Attitude 35% Lack of or Poor Communication 35% Financial Incentives 10% Media Play 7.5% Jousting 7.5% Unreal Expectations 5%

18 Patient Communication We are seeing more clear indicators that solid physician/pt and provider/pt communication skills lead to More engaged patients Patients involved more in their plan of care Patients willingness to ask questions related to their treatment Patients abiding to their care-plan after leaving the office Satisfaction with care provided Lower costs Increased trust and loyalty Which all in turn lead to better clinical outcomes for our patients which by definition leads to fewer medical malpractice claims

19 Patient Communication Increasing in importance patients are (think they are): More prepared through research More medically savvy More challenging of medical opinions More consumer than patient

20 Steps for Establishing Quality Patient Communication Skills Build Rapport/Set the Tone Elicit Concerns Set the Agenda

21 Communication: Build Rapport/Set the Tone Be prepared Greet the Patient Make eye contact Shake hands Introduce yourself (to everyone in the room) Use the patient s (parent s) name Learn everyone s role Smile and be pleasant Make small talk

22 Communication: Build Rapport/Set the Tone Attend to the patient s comfort Acknowledge the wait, if any Convey knowledge of patient history (personal chart notes) Sit down (sit/stand studies) Maintain eye contact Explain EHR/Typing needs

23 Elicit Concerns Ask with a beginner s mind - ILS I for Invite what can we address today? L for Listen with QUIET curiosity S for Summarize & Check your chest pain started a week ago, and is worse when lying down. Have I got that correct?

24 Communication: Elicit Concerns Listen with quiet curiosity ALLOW YOUR PATIENTS TO TALK!!!!!! Beckman HB, Frankel RM-Ann Intern Med Nov;101 How long on average does a physician allow a patient to talk before first interrupting?

25 Communication: Elicit the Full Spectrum of PT Concerns On average a patient will present with 3-4 concerns in the outpatient setting Getting all of these out and on the table early Allows for correct prioritization Avoids the crushing chest pain complaint as one final thing Actually makes you MORE efficient

26 Communication-Set the Agenda Avoid premature diving Ask what else? Summarize the list of patient concerns Establish the patient s priorities Introduce your own agenda items State your clinical concerns Offer a plan

27 Teamwork & Communication Between Physicians and Staff The nurses and other staff are the best risk management tools in the medical office (also your biggest exposure) Open dialog/relationship between physicians and staff often simply overlooked Physician perception of his/her approachability is often different than that of nursing and other staff MD-RN have differing communication styles that can result in roadblocks Use no pride and 3 D s to break down these barriers Dumb, different or dangerous!!

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29 Quality of Teamwork Scale (1=very low to 5=very high) Quality of Teamwork Across 25 Organizations: Differences Between Physicians and Nurses 5 Slide courtesy of Michael Leonard, MD Nurse rates Physician Physician rates Nurse

30 Quality of Teamwork Across 25 Organizations: Differences Between Physicians & Nurses Quality of teamwork across 25 organizations-facilities where BOTH ratings were 4+ ICU discharge return rates were 5% vs. 16% where either rating was below 4 Critical Mortality Rates-chance of survival doubled

31 United Portland DC-8 Plane Crash December 28, killed 23 seriously injured Very experienced captain w/over 28,000 HRS Two Issues- Overly focused on relatively minor landing gear issue-ran out of fuel Other flight crew were afraid to question him on fuel levels

32 Correlation To Medicine Nearly 40% of nurses on a Safety Attitude Questionnaire said they would be hesitant to speak up if they saw a physician making a mistake

33 IMPLEMENT A CRITICAL LANGUAGE POLICY IN YOUR PRACTICE!! One key word conveys the importance and gravity of the situation Example key word is Clarity Allows staff to overcome barriers traditionally difficult to breach Eliminates the Phenomenon of Hint and Hope Malcolm Gladwell wrote of this in Outliers use no pride and 3 D s here Dumb, different or dangerous!!

34 Communication Between Providers JOUSTING Intentional Unintentional Non-verbal Creates patient doubt Dissention in medical community Interferes with trust relationship Causes malpractice claims

35 Intentional Jousting Dr. Jones was called repeatedly and, as usual, he ignored every page. Despite the best efforts of the nursing staff, the patient survived. Barely.

36 Orienting Your Patients The most overlooked risk management tool Few patients are able to evaluate clinical skills Quality of care is judged on personal interactions Most patients don t understand how a medical office operates Office procedure is taken for granted by physicians and staff For most patients the process seems chaotic

37 Orienting Your Patients - Tips Orienting your patients is the responsibility of the entire staff Explain the basic office flow Tell your patients what to expect and how long it should take Monitor patient waiting times and give updates when appropriate-it s not the wait but the not knowing Use staff brochures in waiting room Supply directions to your office

38 Follow-Up Systems If you send a patient for a mammogram, how do you know if the patient doesn t go to have the study? Is it possible to work-around tickler systems or indicators that studies are available for review? Do you ever open a chart and find labs or imaging studies you haven t seen before? If a patient Cancels a follow-up appointment for discussion of important test results do you notice?

39 Follow-Up Systems Errors One of the major focuses of plaintiff attorneys when pursuing service-lapse type claims In a study performed by one of the nations largest malpractice insurance providers assessing risks leading to patient injury in the medical office setting, the single greatest concern was ineffective tracking for diagnostic tests/consults (follow-up systems) To date, EHR has done little to stem follow-up system errors, injuries and professional liability claims

40 Follow-Up Systems Errors Most frequent failure is loss after return of study results Most often seen with lab and radiology reports Unrelated to clinical practice-deals with office procedure Patient education/orientation on test results delivery methodology is necessary

41 Follow-Up Systems Errors Define then convey your policy on delivery of test results No news is NO NEWS Right patient/right test verified multiple times during visit Staff engagement and responsibility is imperative

42 The Key Steps: Follow-up System Cycle Patient ASSESSED Test ORDERED Test DONE Patient RETURNS for follow-up Appointment Results RECEIVED Follow-Up APPOINTMENT scheduled Results REVIEWED For clinical decision DOCUMENTATION of notification and instructions to patient Patient NOTIFIED and given instructions

43 The Key Steps: Follow-Up System Cycle The effectiveness of a follow-up system depends on the integrity of each step A weakness at any point in the process may end up in a patient injury and subsequent malpractice claim

44 Follow-Up Systems: Key Steps # 1 Timely Receipt of Results # 2 Timely Review # 3 Timely Notification # 4 Tracking No Shows and Cancels

45 Follow-Up Systems # 1 Timely Receipt of Results CASE EXAMPLE: 57-year-old female sent for mammogram and subsequent biopsy of a breast mass Mammogram is abnormal Result is mistakenly sent to wrong clinic Ordering physician never followed up Patient believed no news is good news and did not get the biopsy

46 Follow-Up Systems # 2 Timely Review CASE EXAMPLE: Teen boy has mole removed by family doctor Family doctor sends for pathology Patient returns 9 months later for something unrelated Pathology report (and subsequent reminders) finding malignant melanoma had been worked-around/ignored in the EHR

47 Follow-Up Systems # 3 Timely Notification CASE EXAMPLE: Family doctor asks M.A. to report to patient that pap smear was abnormal M.A. leaves a message Patient never calls back and never returns Patient dies from cervical cancer No documentation in Patient s chart of doctor s instructions or M.A. s efforts to contact

48 Follow-Up Systems # 4 Tracking No Shows and Cancels CASE EXAMPLE: 52-year-old man seen for rectal bleeding Colonoscopy finds adenocarcinoma Patient instructed to come back for follow up Patient travels internationally for work cancels, reschedules, no-shows Finally comes in 10 months later Claims he wasn t told the severity of his condition and need for follow-up

49 Follow-Up Systems # 4 Tracking Missed and Canceled Appointments No show or cancel without reschedule Documentation to provider and in chart Provider or designee reviews for decision Determines no follow-up needed Contact to patient with instructions Document efforts and instructions

50 Follow-Up Systems OFFICE AUDIT: Do you have a system for tracking ordered tests, imaging, and consultations? Do you have a system for tracking provider reviews? Do you have a back-up plan if the ordering provider is absent? Do you have a system for notifying patients of results? Do you have a system for tracking cancelations and no-shows? Is a provider making the decisions about how hard to push? Is there a process to convey to patients high risk results? Are you documenting your efforts and instructions?

51 Adverse Outcome Disclosure Movement in medicine over the past 10 years or so Always been the right thing to do morally and ethically. Monetary concerns were traditionally a stumbling block Ironic that MPLI providers fanned the flames Admit to nothing, deny everything and make counter-accusations

52 Physicians in USA and Canada 92% of the physicians had been involved with a near miss, minor or serious error The greater the severity of the error, the more likely the physician is impacted Gallagher, T. The Emotional Impact of Medical Errors on Practicing Physicians in the US and Canada, Joint Commission Journal on Quality and Patient Safety, August 2007

53 Impact of an adverse event Only 18% received disclosure and apology education or training Only 10% agreed that health care organizations adequately supported them in coping with error-related stress Gallagher, T. The Emotional Impact of Medical Errors on Practicing Physicians in the US and Canada, Joint Commission Journal on Quality and Patient Safety, August 2007

54 Full disclosure is the right thing to do. It is not an option; it is an ethical imperative. Lucian Leape

55 Full disclosure after a medical error: Reduces likelihood that patient will switch physicians Improves patient satisfaction Increases trust in the physician Results in a more positive emotional response Probably reduces patients seeking a legal remedy K. Mazor, Health Plan Members' Views about Disclosure of Medical Errors Annals of Internal Medicine, March 16, 2004

56 Doing the right thing-financially!! Organizations are discovering the power of transparency Lexington VA hospital/va hospitals 1987 adopted a robust A & D program Mean settlement: $15K vs $98K Mean duration: 2-4 months vs 2-4 years Defense cost: $35K vs $65K University of Michigan 2001 adopted an Apology and Disclosure Program

57 Data from the UMHS Program Paid claims/yr (average) Before Program: 53.2 After Program: 31.7 Lawsuits/year Before Program: 38.7 After Program: 17.0 Lawsuit rates (monthly) Before Program: 2.13/ pt encounters After Program: 0.75/ pt encounters Legal expenses (mean) decreased by ~ 61% Time to claim resolution Before Program: 1.36 yrs After Program: 0.95 yr Cost per lawsuit (average) Before Program: $405,921 After Program: $228,308 Monthly cost rates (average) decreased for total liability Liability Claims and Costs Before and After Error Disclosure Program, Kachalia, Ann Intern Med. 2010;

58 Adverse Outcomes Unanticipated, adverse event May be risk of procedure (IC) Rarely valid malpractice claim 58

59 Medical Errors Iatrogenic injuries Clear mistakes: retained objects, overdoses, wrong site/side surgeries Liability issues 59

60 Near Mistakes No clear definition and never a valid claim-no injury When to explain Enter patient care environment When do you report to QA 60

61 When Do You Disclose? Adverse outcome, no errors Error without adverse sequelae Error leading to temporary, correctable condition Error leading to permanent disability, death 61

62 Ask yourself 3 Questions Was there harm? Would most patients and/or this patient want to know? Would having this information help the patient and family recover physically and emotionally?

63 When is Disclosure Inappropriate? When it is premature When explanation is half-hearted When practitioner discloses to shift blame (Jousting) 63

64 What Do Patients Want From Disclosure? Acknowledgement of the event or error An explanation An apology An assurance it will not happen again 64

65 How to Disclose/Apologize-Planning Style Sincerity Timing Setting Who is present Who actually does the speaking Manner presented 65

66 Style Style influences perception Patients who felt positive about the communication described the adverse event as an honest mistake Those who felt the process did not go well, due to poor communication, described the event as an error implying negligence Style counts!

67 Style counts Valuable qualities: Transparent Organized Thoughtful Remorseful Empathic Forthright These qualities are powerful tools Helps to repair the broken trust Are trainable skills Shows you care!

68 Recipe for a Lawsuit After an adverse outcome/error: Avoid the patient Blame others (Jousting) Refuse to answer questions Refuse to apologize Refuse to let patient vent Send your bill as usual 68

69 Apology vs. Admission Apology does not equal admission of negligence Admitting error might not be breach of standard of care In clear liability cases, may be nothing to lose 69

70 Apology vs. Admission It is appropriate to apologize for the experience the patient/family has had to endure Apology avoids Repetition Phenomenon Many states specifically removes expressions of sympathy from admission into evidence 70

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72 How to Apologize Acknowledge harm Express regret Accept responsibility Offer amends Ask for understanding 72

73 How NOT to Apologize It s disappointing to me to realize how human I sometimes am. 73

74 How NOT to Apologize I m sorry you waited so long to see me because I could have saved you earlier. 74

75 What to Document Met with the patient/family Explained the result Described treatment and action plan Expressed commitment to continuing care 75

76 Do NOT Document Called my attorney Called and talked to malpractice carrier Discussed at QA meeting Nurses reprimanded for error I smell a lawsuit 76

77 Your Role Remain calm Be honest Be objective Don t guess or speculate Be sincere Get advice 77

78 The Second Victim-Impact of an Adverse Event on Caregivers 66% increase in anxiety over future errors 51% noted loss of confidence 48% indicated decreased job satisfaction 48% experienced sleep difficulties 15% noted harm to reputation 81% reported at least one of the above 78

79 Questions??? 79

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