Disclosures. How To Avoid Malpractice. What is Malpractice? 4/17/2018 RISK MANAGEMENT: AVOIDING MEDICAL MALPRACTICE

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1 RISK MANAGEMENT: AVOIDING MEDICAL MALPRACTICE Pitfalls of Practice: Avoiding Malpractice Wendy Fletcher, DNP, APRN, FNP 2018 Annual Conference of the KY COALITION OF NURSE PRACTITIONERS AND NURSE MIDWIVES Disclosures I have no financial interests or conflicts of interest to disclose. I work as an independent contract expert to defend nurse practitioners in cases involving standards of care and scope of practice I am a past president of KCNPNM and the current Chairperson of the Board of KANPNM Objectives Risk Management: Avoiding Medical Malpractice How To Avoid Malpractice 1. History and burden of malpractice in the U.S. and the significance of risk management 2. Develop strategies for avoiding a malpractice claim 3. Formulate a risk management plan in your own practice Utilize case studies to determine strategies for avoiding the most common pitfalls of practice In 0.54 seconds, Google all returns 347,000 hits In 0.38 seconds, Google news returns 157o hits In 0.49 seconds, Google video returns 26,500 hits You might say, this topic is a little well done but fortunately for you, NP lawsuits are still fairly rare. What is Malpractice? Mal- bad The failure of a professional to exercise a degree of skill and learning commonly applied by the average prudent, reputable member of the profession (Buppert, 2018) Do no harm Mistakes are inevitable OBJECTIVE 1: History, Burden, Significance of Risk Management 1

2 Types of Malpractice Claims MD/DO Claims NEJM (Jena, et al, 2011) 17,000+ Medical Malpractice Claims in U.S. annually Misdiagnosis Failure to refer Mishandling medication Failure to provide preventative care Failure to perform routine screening Telephone Triage Anesthesia Errors (CRNAs) Birth Injuries (CNMs) NEJM (Jena, et al, 2011) NP Claims Chances of Paying Awards According to Buppert, : 62 physicians 1: 563 Pas 1 in 1,016 APRNs (2% incidence) Objective 2: Strategies Avoiding a Claim Starts with Understanding Lawsuits, Elements of A Claim, and the Process of Legal and Board Proceedings Surrounding Malpractice Allegations 2

3 How can I assure that I will never be sued? The question of the hour The Fact Is THERE IS ABSOLUTELY NOTHING YOU CAN DO TO PREVENT SOMEONE FROM FILING A CLAIM AGAINST YOU You can, however, decrease your chances of Being sued Losing your cool and your case Decrease the chances of anyone wanting to sue you Understanding Lawsuits ELEMENTS OF A CLAIM A lawsuit has NO MEANING except that a person states a belief that he/she has been harmed Can name an individual, or a team of care providers based on belief of harm Unless an insurance company reports a damage award against an NP to the National Practitioner Data Bank, a lawsuit may only come to light through a search of county court or insurance records PLAINTIFF MUST PROVE DUTY OWED IN A PROVIDER-PATIENT RELATIONSHIP FAILURE TO MEET THE STANDARD OF CARE NP s CONDUCT CAUSED INJURY PLAINTIFF WAS INDEED INJURED No injury=no malpractice In KY Statutes of Limitations The state directs that malpractice actions be presented to a medical review panel Each party has the right to an appeal, which can result in a trial Either party may then appeal to a higher state court Unlikely that a malpractice case would go to the US Supreme Court Public cannot easily access malpractice information unless there is an appeal Medical malpractice: 1 year Ky. Rev. Stat (1)(e) (2016) Personal injury: 1 year Ky. Rev. Stat (1)(a) (2016) 3

4 Board Involvement What To Do If You Are Sued The board of nursing does not automatically investigate NPs who have lost malpractice suits unless negligence approaches the level of gross negligence, which is intentional failure to perform a professional duty in reckless disregard of the consequences (Buppert, 2018) Call your professional liability insurance company ASAP DO NOT TALK TO ANYONE EXCEPT YOUR ATTORNEY Consider retaining your own attorney if the suit is against a group Never access or change a record after learning about a lawsuit Prepare carefully for deposition Think carefully before agreeing to settle National Practitioner Data Bank Repository for damage awards or payments from professional liability insurance companies on behalf of their clients to injured parties for successful malpractice claims Records actions against providers by licensing boards, hospitals, and professional quality assurance committees US Dept of HHS Hospitals must check NPDB every 2 years before granting clinical privileges General public has no access, but you can check your own file as necessary (Buppert, 2018; NPDB, 2018) OBJECTIVE 3: Formulate a Risk Management Plan Utilize Case Studies to Develop Your Own Strategies PITFALL #1: TELEPHONE TRIAGE Urgent Issues Assure there is a protocol for immediate referral to an ER for cases when appropriate Assure there is a way to record the advice given via phone triage (recording calls is best, immediate documentation also helpful) NEVER leave the decision for when to escalate the referral to a parent of a sick child Telephone triage adds a significant layer of risk to the already difficulty process of making an accurate diagnosis. Urgent issues should be immediately referred: Difficulty breathing Bleeding of any kind Chest pain Loss of consciousness Inability to stand when previously could 4

5 PITFALL #2: PRACTICE GUIDELINES PITFALL #3: RELATIONSHIPS When required by law, and as a general good practice, establish practice protocols or guidelines and FOLLOW THEM Make sure to use a legal decision tree to determine your scope of practice if ever in doubt before carrying out any particular skill AHRQ and National Guideline Clearinghouse provide evidence-based clinical practice guidelines Always document exceptions, if any, that apply to your particular patient(s) Use Caution in establishing Patient-Provider Relationships Social Media Curbside Consults Caring for team members within same setting Caring for team member family members within the same setting Accepting patients you believe are beyond your scope of expertise or ability Addiction, Chronic Pain, High Risk OB, Multiple Co-Morbidities, Advanced Age, Neonates, High Risk requiring Specialty Care PITFALL #4: TAKE YOUR TIME PITFALL #5: MALPRACTICE INSURANCE RESEARCH SHOWS THAT PRIMARY CARE DOCTORS WITH 2 OR MORE MALPRACTICE CLAIMS SPENT 15 MINUTES WITH EACH PATIENT, WHEREAS THOSE WITH NO MALPRACTICE CLAIMS SPENT 18.3 MINUTES WITH EACH PATIENT GOOD PROVIDER-PATIENT COMMUNICATION MEANS BETTER OUTCOMES AND HIGHER PATIENT SATISFACTION SATISFIED PATIENTS USUALLY DO NOT SUE DO I NEED TO HAVE MY OWN POLICY EVEN IF MY EMPLOYER COVERS ME? CYOA AM I MORE LIKELY TO BE SUED IF I HAVE MALPRACTICE INSURANCE? SHOULD I GET A CLAIMS MADE OR OCCURRENCE POLICY? OCCURRENCE ALWAYS! WHICH COMPANY IS BEST? U.S., >10 YEARS, STABLE FINANCIAL RATING LIABILITY OF COLLABORATING PHYSICIAN Pros and Cons of Malpractice General Rules Pros: Protection of the patient and the public Holds one liable for own actions Holds practitioners to common standards Cons: Fear of being sued, emotional impact Vindictive patients Raises Cost: over-prescribing, over-testing, financial burden of policy coverage When in doubt, take a conservative approach If you re going to err, always do so on the side of caution Rule out the worst diagnoses early on Know the limits of your training and your expertise and don t breach your boundaries Know the law in your state Be a member of a professional practice organization Always follow up 5

6 SPEND MORE TIME WITH YOUR PATIENTS CASE 1: PRBPR SHARE THE STATISTICS WITH YOUR ADMINISTRATOR DON T LET TIME CONSTRAINTS GET IN THE WAY OF YOUR BEST CARE USE MOTIVATIONAL INTERVIEWING SKILLS WHEN GUIDING PATIENT BEHAVIORAL CHANGES TO INCLUDE THE PATIENT IN HIS/HER OWN CARE GIVE WRITTEN INSTRUCTIONS BEFORE THEY LEAVE AND EXPLAIN ANY NEW PLANS THOROUGHLY 41 YEAR OLD FEMALE WITH CC: bright red blood when wiping after BM for 2 weeks 5 3, 190#, HX ANXIETY WITH DEPRESSION, CONSTIPATION; SINGLE MOTHER of 3, RECENTLY DIVORCED, CMA/SECRETARY IN OFFICE ABOVE NP s CLINIC NO FAMILY HX OF COLORECTAL CANCER EXAM: NORMAL HEENT, CHEST, HEART/LUNG, ABDOMEN, EXTREMITY, SKIN, NEURO/PSYCH EXAM DX: RECTAL BLEEDING PLAN: HIGH FIBER DIET, INCREASE H2O INTAKE, F/U IN 2 WEEKS, REFER FOR C-SCOPY IF NO IMPROVEMENT CASE #1 CONTINUED Pitfalls IN CASE #1 Pt calls 2 weeks later, cancels appointment Clerk records reason for cancellation as problem resolved Pt returns to clinic 3 months later for f/u of anxiety and reports no GI related symptoms, NP documents this as (-) GI on ROS Pt returns to clinic for pelvic pain 3 months later, undergoes U/S and gets referred to GYN for ovarian cyst (-) GI ROS reported on OB-GYN and pre-op anesthesia records Pt undergoes laparoscopy 3 weeks later, open and close case due to extensive intestinal cancer later diagnosed as spindle cell Pt files suit 4 months before she dies, estate pursues case Plaintiff s attorney argues that NP was negligent in failing to follow the standard of care because she did not complete a rectal exam on initial visit to diagnose hemorrhoids, no FOBT done or sent home with patient, no explanation of future plan to patient, and failure to follow-up to allow early diagnosis resulted in the patient s pain, suffering, and subsequent demise OUTCOME OF CASE 1 AVOIDED PITFALLS NP found NOT GUILTY of MALPRACTICE Was able to prove through an audit of the electronic medical record and telephone logs that patient accessed her own chart more than 100 times during the year of care involving the case, that printed information about rectal bleeding and advice on when further care would be needed was given the day of service, that patient denied to 3 providers that her symptoms had resolved after the initial visit, and that spindle cell type cancer growing on the outside of the bowel would not have been detectable by colonoscopy even if it had been carried out 2 weeks later as planned. Good documentation and understanding of audit tools in the EMR and protocol for office documentation in phone logs helped prove NP s care and patient s lack of personal responsibility for her own care in cancelling follow-up appointment Quick referral to specialist when new problem (ovarian cyst) was diagnosed which was outside her scope of practice NP followed well-recognized guidelines and standards of care for planning colonoscopy, even in this low-risk patient without family history 6

7 CASE #2: Possible Flu Case #2 continued NP receives call at midnight from her neighbor, who also happens to be her own child s teacher, concerning a 5 year-old in the neighbor s care with possible flu. Reports child fell asleep in her car on the way home from school; teacher had reported child did not eat much lunch, complained of nausea for 2 days but never vomited, and there had been no fevers. Child s mother was a friend of the family, and was working swing shift in a local factory and was unable to pick the child up, but neighbor concerned the child hasn t eaten or taken in any fluids for nearly 8 hours. States flu going around in child s classroom. NP advises that neighbor wake the child, see if he can tolerate a few sips of water or ginger ale, and call her back if the mother desires an appointment when the clinic opens in the morning. Neighbor agrees to call back as discussed. At 4 a.m. when mother arrives to pick up child, he is lifeless, and 911 is called. Child dies 4 hours later in the ER when attempts to reverse his diabetic ketoacidosis are unsuccessful. AVOIDABLE PITFALLS of CASE #2 OUTCOME CASE #2 NP had no established relationship with this child, and knew no medical history and had no permission from the mother for treatment, but advised a plan of action, which then established her duty to care for him. NP failed to refer the neighbor with the child immediately to the local ER despite urgent symptoms that were both worrisome and inconsistent with the flu NPs attempt to be helpful to her neighbor resulted in inappropriate phone triage encounter with a dire outcome NP is sued by the child s mother for failure to follow standards of care for her 5 year old child by failing to obtain her consent for treatment, poor advice in an urgent situation, and assuming care for a child she was not acquainted with instead of asking for and notifying the child s pediatrician. The case was settled for an undisclosed amount and reported to the NPDB. The NP was subsequently disciplined by her licensure board for failure to meet standards of care during phone triage. After the emotional toll of the case, the NP surrendered her license and is no longer practicing. Good Samaritan: No Loopholes Curbside Consults Find A Way Out You are not being a Good Samaritan when you are acting in a manner more consistent with your duties as an NP than as a normal everyday passerby Diagnosis and Planning surrounding specific symptoms are beyond the protection of the run-of-the-mill Good Samaritan When faced with the inevitable social media, grocery store, office hallway, or curbside consult: Be polite, use a disclaimer, and excuse yourself While I m not the child s care provider, as a mother myself, I d be worried enough to call his mother and take him on in to the ER. Since I m not able to comment on patient care that is not my own, I d suggest you contact whomever you are seeing for that right away. I d be happy to see you in the office if you d like to establish care for those concerns. Here s my card. The KBN (the office, the hospital, my employer.) has a policy against addressing health related concerns on social media, by text of by phone. I m going to need you to make an appointment for that. While I understand it seems a convenient way to communicate, social media is not at all a private or safe way to discuss your personal healthcare issues. Please contact me at the office when we open. 7

8 References IF You ve Got Questions, I ve Got Answers let s see if they match! Buppert, C. (2018). Nurse Practitioners Business Practice and Legal Guide, (6 th ed.). Jones & Bartlett Learning: Burlington, MA. CBS News (2017). Malpractice 101: Which doctors get sued the most. Accessed on-line at cbsnews.com/pictures/malpractice-101- which-doctors-get-sued-most/ Jena, A., Seabury, S., Lakdawalla, D., & Chandra, A. (2011). Malpractice risk according to physician specialty. New England Journal of Medicine, 365: National Provider Data Bank (2018). About Us: How the NPDB Works. Accessed on-line at Wendy Fletcher, DNP, APRN, FNP wendyfletcherdnp@gmail.com THANK YOU FOR THE OPPORTUNITY TO SPEAK TODAY. ENJOY YOUR DAY, YOUR CONFERENCE, AND PLEASE, AVOID THE PITFALLS! 8