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Chart Review: How Not to Get Sued
Chart Review: How Not to Get Sued
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.
Part 1
A Little Perspective in an Age of Malpractice Hyperbole
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.
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 FacilitiesDOJ:
For every dollar spent by the DOJ 2011, seven were recovered from providers.
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, 2011http://www.statehealthfacts.org
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
Beware Public Sector Chart ReviewsTip 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.
PART 2PART 2
Chart Review and Malpractice Risk Chart Review and Malpractice Risk Management: 20 tipsManagement: 20 tips
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%).
To Err (a lot) is Human
IOM releases report IOM releases report To Err is Human To Err is Human (2000)(2000)• Estimates 44,000 to 98,000 unnecessary deaths each Estimates 44,000 to 98,000 unnecessary deaths each
year due to medical erroryear due to medical error• Estimated 1,000,000 excess injuries due to medical Estimated 1,000,000 excess injuries due to medical
errorerror• More Americans are killed in US hospitals every 6 More Americans are killed in US hospitals every 6
months than died in the entire Vietnam Warmonths than died in the entire Vietnam War– Death rate equivalent to three “jumbo” jet crashing every Death rate equivalent to three “jumbo” jet crashing every
two daystwo daysNote: Numbers were based on the MPS and extrapolated to the Note: Numbers were based on the MPS and extrapolated to the general populationgeneral population
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.
Views of the Public on Medical ErrorsViews of the Public on Medical Errors
Percentage of adults experiencing an error:
– Medication or medical error22%
– Mistake at the physician’s office or hospital10%
– Wrong medication or dose16%
Source- The Commonwealth Fund, Source- The Commonwealth Fund, 20012001
Nine Percent of Physicians Account for Nine Percent of Physicians Account for Fifty Percent of the ComplaintsFifty Percent of the Complaints
0
20
40
60
80
100
30 40 50 60 70 80 90 100
% of Complaints
% of PhysiciansSource – Hickson, 2002
The Vast Majority of Injuries Do Not The Vast Majority of Injuries Do Not Result in a ClaimResult in a Claim
27,179 adverse events due to negligence
26,764 with no malpractice claim (98%)
415 malpractice claims (2%)
14,180 with strong evidence of negligence
12,858 with disability
7462 with disability < 6 mo (58%)
5396 with disability ≥ 6 mo (42%)
Source – Localio, 1991
Reasons Why People Sue Their DoctorsReasons Why People Sue Their Doctors
• Advised to sue by influential otherAdvised to sue by influential other 3232• Needed moneyNeeded money 2424• Believed there was a cover-upBelieved there was a cover-up 2424• Child would have no futureChild would have no future 2323• Needed informationNeeded information 2020• Wanted revenge, licenseWanted revenge, license 1919
Communication-related motivations total 44% Communication-related motivations total 44%
Percent Expressing Percent Expressing ConcernConcern
Source - Hickson, 1992
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.
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.
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.
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
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?)
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.”
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).
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.
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.
Part 3
6 Other Tactics for Avoiding Suit6 Other Tactics for Avoiding Suit
Tactic 1
KNOW THAT BEDSIDE MANNER MAY BE YOUR BEST DEFENSE
DON’T LET YOUR PATIENT FEEL “DIMM”:DesertedIgnoredMisunderstoodMisled
Studies show: If they like you, they won’t likely sue you.
Tactic 2WELCOME 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).
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.
Tactic 4DON’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.
Tactic 5CONSIDER 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”
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.
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”
