Attention Policyholders: For more than 200 case studies and articles, go to the “My NCMIC Login” tab of www.ncmic.com and click on “Case Studies and Articles.” Examiner COMPELLING CASE STUDIES AND PRACTICAL TIPS FOR AVOIDING A MALPRACTICE ALLEGATION Social Media Impacts All Sides in Malpractice Case Anna Gleason, age 52, worked as a sales leader at a major wireless service provider when she presented to Sprattle Chiropractic, P.C., on April 16, 2009, with neck pain she had for two weeks. Anna was overweight and had a history of diabetes, high blood pressure, and low thyroid levels. Anna and two friends decided to go Sprattle Chiropractic, which was owned by Jeffrey Sprattle, D.C., and Terry Jepperson, D.C., when they saw the practice’s Groupon for a hydro massage, X-ray, and exam. Anna believed the hydro massage would help ease her neck pain, and her friends thought it would be a spa-like massage treatment. The Groupon stipulated that to receive the hydro massage, the bearer must submit to the X-ray and exam, which were included in the Groupon price. Anna arrived that day with the Groupon in hand, mostly intent on receiving the 20-minute hydro massage but also because she was “looking for a good chiropractor.” Dr. Sprattle obtained a history, took an X-ray and performed an exam. Anna then returned the next day, April 17, 2009, to receive the hydro massage and learn what the X-ray and exam revealed. Based on the findings, Dr. Sprattle identified Anna’s “spine was misaligned,” and he recommended 18 months of extensive chiropractic care—the maximum allowed by insurance. Perhaps coincidentally, this was the same treatment plan he recommended for Anna’s friends. Treatment Commences Anna signed a consent-to-treat form that simply stated that “procedures performed seldom caused any problems,” and this document was placed in the records. Dr. Sprattle performed a diversified adjustment at C3, C5 and C6 and applied electronic stimulation therapy. Before leaving that day, Anna said her pain was reduced and her symptoms improved. Language Barriers Create New Issues for D.C.s page 8 Electronic Devices Mean New Risks for D.C.s page 10 Family, Friends and Employees as Patients page 12 Can I Be “Too Friendly”? page 16 SUMMER 2014 IN THIS ISSUE continued on page 2
Transcript
Attention Policyholders:For more than 200 case studies andarticles, go to the “My NCMICLogin” tab of www.ncmic.com andclick on “Case Studies and Articles.”
S P R I N G 2 0 1 4 | PA G E 1ExaminerCOMPELLING CASE STUDIES AND PRACTICAL T IPS FOR AVOIDING A MALPRACTICE ALLEGATION
Social Media Impacts All Sidesin Malpractice Case
Anna Gleason, age 52, worked as a sales leader at a major wirelessservice provider when she presentedto Sprattle Chiropractic, P.C., on April16, 2009, with neck pain she had fortwo weeks. Anna was overweight andhad a history of diabetes, high bloodpressure, and low thyroid levels.
Anna and two friends decided to go SprattleChiropractic, which was owned by Jeffrey Sprattle, D.C., and Terry Jepperson, D.C., when they saw the practice’s Groupon for a hydromassage, X-ray, and exam. Anna believed the hydro massage would helpease her neck pain, and her friends thought it would be a spa-like massagetreatment. The Groupon stipulated that to receive the hydro massage, thebearer must submit to the X-ray and exam, which were included in theGroupon price.
Anna arrived that day with the Groupon in hand, mostly intent on receivingthe 20-minute hydro massage but also because she was “looking for agood chiropractor.” Dr. Sprattle obtained a history, took an X-ray and performed an exam.
Anna then returned the next day, April 17, 2009, to receive the hydromassage and learn what the X-ray and exam revealed. Based on the findings, Dr. Sprattle identified Anna’s “spine was misaligned,” and he recommended 18 months of extensive chiropractic care—the maximum allowed by insurance. Perhaps coincidentally, this was the same treatmentplan he recommended for Anna’s friends.
Treatment CommencesAnna signed a consent-to-treat form that simply stated that “procedures
performed seldom caused any problems,” and this document was placed inthe records. Dr. Sprattle performed a diversified adjustment at C3, C5 and C6 and applied electronic stimulation therapy. Before leaving that day, Annasaid her pain was reduced and her symptoms improved.
Language Barriers CreateNew Issues for D.C.spage 8
Electronic Devices MeanNew Risks forD.C.spage 10
Family, Friendsand Employeesas Patientspage 12
Can I Be “TooFriendly”?page 16
SUMMER 2014
IN THIS ISSUE
continued on page 2
S U M M E R 2 0 1 4 | PA G E 2Examiner
On April 22, 2009, Anna had a previously scheduled hysterectomy performed. She never made mention of neck pain from the chiropractic adjustment, either pre- or post-op. Anna later claimed that this was because her symptoms were masked by pain medicine.
On May 6, Anna returned to Sprattle Chiropractic with complaints of severe neck pain that radiated down her left arm. At this visit, Anna saw Dr. Jepperson who used a diversified adjustment at C3, C5 and C6. This adjustment was like the one Dr. Sprattle performed without incident.However, she later claimed she felt a pinch between her shoulder bladesduring the cervical adjustment at C5-6.
Dr. Jepperson asked Anna to return that afternoon to assess herprogress, and when she arrived, she was still in severe pain. Consequently,Dr. Jepperson referred Anna for an MRI, which showed a disc herniation at C5-6, with a large disc fragment pressing on the nerve root.
Two weeks after the MRI was taken, on May 20, 2009, Anna underwentan operation for a cervical discectomy and fusion at C5–6. The treating neurosurgeon deemed the surgery a success and speculated that Annawould require little or no care in the future.
Lawsuit Ensues On April 18, 2011, Anna Gleason filed a lawsuit against the Doctors of
Chiropractic, as well as Sprattle Chiropractic, P.C. She alleged the doctorsused excessive force in their adjustments, which caused a disc herniationthat resulted in surgery and ongoing pain. Specifically, Anna claimed that she:
• Was now unable to travel, care for her home or do yard work, or teach her grandson to swim.
• Could no longer color her own hair.• Used to be a scuba diving instructor and avid horseback rider, and
she could no longer do either.• In general, had diminished quality of life due to persistent pain, which
limited her movement.• Was unable to perform her job at a wireless company because her
position pre-injury required her to hold a tablet while showing customers around the sales floor, which she contended she couldn’t do.
Anna Gleason presented documented damages of $60,000, yet she was seeking $1.8 million from Dr. Sprattle, Dr. Jepperson and Sprattle Chiropractic, P.C.
Assessment of the CaseThe NCMIC defense team evaluated the case for both the doctors and
the clinic. Potential negatives for the defense were: • The plaintiff’s attorney was a “big personality” who was well-known
and popular in the community. Consequently, both doctors let down their guard and appeared less than confident during questioning by
Bait and switch refers to advertising a low-priced service but then encouraging the patient to buy a more expensive one.
Fee splitting is the practice of sharing fees in return for being sent referrals.
Problematic Marketing Tactics
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the plaintiff counsel at the deposition. • The Groupon offer could be alleged to be a “bait-and-switch” ploy to
get patients in the door with a heavily discounted price for a hydo massage and then convince them they needed a long-term chiropractic treatment plan. It could also be alleged to be a “fee-splitting” tactic because the Groupon fee was split with the doctor.
• The plaintiff attorney would try to cast doubt about whether the doctors’ treatments were clinically necessary. He could raise suspicions about the need for the full course of care by pointing out that Anna Gleason and her friends received the same treatment plan.
• The “consent to treat” document was vague, giving the plaintiff attorney ammunition to contend that informed consent was not obtained.
Fortunately, for Drs. Sprattle and Jepperson, there were also severalpositives to the case. These included:
• The radiological evidence revealed degenerative changes in Anna Gleason’s neck and back, supporting the need for chiropractic care. Also, nothing in the patient’s history, written assessment or radiologic findings indicated that chiropractic care was contraindicated.
• Both D.C.s’ records were complete, accurate and legible. They effectively told the story of Anna’s course of treatment.
• The fact that Anna Gleason told Dr. Sprattle at her initial visit that she was “looking for a good chiropractor” meant she was interested in receiving chiropractic care, as well as the hydro massage. This argument could be used to mitigate any “bait-and-switch” argument.
• There appeared to be at least some discussion with the patient about the benefits and risks of chiropractic care that could be used to counter allegations that the patient’s informed consent was not obtained.
Experts Weigh inThe case went to trial and began with the plaintiff attorney calling several
witnesses to testify.The first witness to provide testimony for the plaintiff was a chiropractic
expert who opined that, according to the Rand study, the doctors breachedthe standard of care in terms of frequency of adjustments and failure torefer. However, the NCMIC-retained defense attorney was able to point outthat the Rand study is used primarily for auto accident cases and was outof date, having been first published in 1991.*
The plaintiff herself was called to testify about her contention that shecould no longer hold a tablet while standing on the sales floor at her job.During cross examination by the NCMIC-retained defense attorney, it wasrevealed that Anna had been promoted and was traveling as part of her position—she no longer needed to be on the sales floor anyway. Therefore,she was not harmed professionally in any way.
Various witnesses, including Anna Gleason herself, testified that she had Minimum finance amount is $4,000 – maximum $25,000 per table.A one-time $75 documentation fee is required. Equipment loans are subject to credit approval.
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not been able to swim, go horseback riding, travel, mow the lawn or scubadive since her injury. Much of this testimony was extremely emotional, especially when Anna’s daughter started sobbing on the witness stand.Through her tears, she reminisced about how her mother taught her how to swim, but now she won’t be able to do the same with her grandson.
This testimony set up a major break for the defense, courtesy of Facebook. Anna Gleason and these witnesses had posted numerous photos and frequent comments about Anna’s trips, horseback riding, swimming, and scuba diving. A photo showed Anna in the pool holding her grandson after the alleged injury had taken place.
Another witness for the plaintiff was a co-worker who mowed for her on a “handshake basis.” The plaintiff contended that she couldn’t do thisherself anymore, and the man testified that he did mow the plaintiff’s lawnregularly. However, when the man was shown an invoice for his mowingservices, he denied generating the invoice. This further undermined AnnaGleason’s credibility because she apparently fabricated the invoice.
Also, the plaintiff’s neurosurgeon’s testimony ended up being favorable to the defense. He could not say whether chiropractic care caused the discinjury—it could have resulted from a multitude of events.
Defense Witnesses TestifyOn the defense side, there was strong testimony from expert witnesses. The defense’s chiropractic expert was a highly experienced D.C. who
was also a professor at a chiropractic college. This expert stated that it washis professional opinion that both doctors met the standard of care. Henoted that the diagnostic tests and treatment seemed to be appropriate forthe situation. Given Anna Gleason’s curvature of her spine and severe degenerative changes in her neck, she probably had pre-existing
Special “deals” with marketing.Even when legal, using these deals may damage a doctor’s credibility and perception as a professional. The potentialallegations of “bait and switch” and “feesplitting” can also be huge factors inboard actions and malpractice allegations.Check with your state board for guidance/guidelines.
Informed consent. This is a processthat requires time, patience, and understanding by both the doctor and the patient. The benefits and risks of care must be clearly comprehended by the patient—simply having the patientsign a form does not constitute providinginformed consent.
Documentation reigns supreme.This means taking thorough notes about
What Can We Learn?By Jennifer Herlihy, Boston, Massachusetts, and Providence, Rhode Island
continued on page 5
What Occurred During Testimony What Facebook Revealed
The plaintiff’s daughter cried when she alleged her motherwasn’t able to teach her grandson to swim the way she hadtaught her.
Photos posted by Anna Gleason showing her in the pool holding her grandson. In addition, she was shown teaching another family member to scuba dive.
Anna Gleason’s friends and sister testified that the plaintiffhad not ridden a horse since before the alleged injury.
Numerous comments on a Facebook post by Anna Gleasonabout a recent horseback riding outing—including comments by the sister and two friends who had testified tothe contrary.
The plaintiff herself, as well as her mother, sisters, physicianbrother, cousin and friends, all testified that Anna Gleasonwas not able to travel long distances due to neck pain.
Posts and comments by the plaintiff and those testifying thatAnna Gleason had taken numerous cross-country trips bothfor work and vacation.
S U M M E R 2 0 1 4 | PA G E 5Examiner
asymptomatic disc herniation when she sought chiropractic care.This expert also testified that it was his opinion that a cervical herniation
would not occur if proper technique was used. He further testified that evenif a ruptured disc did occur as a result of improper technique, the patientwould have been in such pain that she “probably would not be able to getoff the table.” In all, he believed both doctors used the amount of forcetaught in the chiropractic colleges, didn’t deviate from the standard of careand did not herniate Anna Gleason’s disc.
This expert also testified the doctors’ advertising claims would not be aconcern as long as the advertisement made no claims for a cure or “trickedthe patient into doing something.”
NCMIC also brought in a neurosurgeon as an expert witness who testified:• There were no bone fragments in the cervical region.• The patient had a focal injury that was treated and resolved in 2010.• Some of the alleged medical issues and expenses were not related
to the disc herniation.
Because the doctors lacked certainty during certain lines of questioningat the deposition, the defense initially was concerned about their testifyingat trial. Fortunately, Dr. Sprattle and Dr. Jepperson were dedicated to defending their case. After trial preparation, they were both excellent witnesses who were firm in their testimony that their treatments did not rupture the plaintiff’s cervical disc. Further, Dr. Jepperson reaffirmed thatAnna Gleason didn’t mention anything about a pinching sensation in her mid-back—her comments were consistent with what anyone would have said after an adjustment.
The case was tried the week before Christmas, which is considered by many attorneys to be the worst time to try a case since jury members would be impatient to get home for the holidays. Consequently, they mightnot give their full attention to the facts of the case, especially to the defensetestimony at the end of the trial. Therefore, the defense team had to be especially perceptive for signs of jury fatigue and to keep the jury focused as the trial neared its conclusion.
The jury came back with a decision on Friday, December 20, 2013. In spite of the trial taking place the week before Christmas and long daysspanning from 7 a.m. to 10 p.m., the defense prevailed—$0 was awarded to the plaintiff. NCMIC spent more than $250,000 in defense costs.
Examiner case studies are derived from the NCMIC claims files. All names used in Examiner case studies are fictitious to protect patient and doctor privacy.
* The official name of the Rand study is “The Appropriateness of Spinal Manipulation for Low-Back Pain.”
the exam, patient history, report offindings, informed consent process, pointof care and patient response to treatment.In this case, the notes were very helpful to the defense.
Facebook can be a double-edgedsword. Although Facebook was used todamage the plaintiff’s case, it could havejust have easily damaged the defense. With devices that can photograph/videotape instantaneously, violations of privacy and personal information arerampant. Ask yourself: “Would I be okay if this appeared on the front page of anewspaper?”
X-rays and treatment timeframesshould not be mandated. No standard of care supports a mandatory X-ray requirement as a condition of being examined and treated. Also, cookie-cuttertreatment timeframes are not based uponsound evidence. Make sure you are performing and documenting your re-examinations. These activities go to a doctor’s credibility and can impact theoutcome of a trial.
Credibility issues affect the plaintiff,too. The jury determines and weighs thecredibility of all witnesses. In this case,Anna Gleason damaged her own credibilitywhen her tearful tale of incapacity was instark contrast to her Facebook images andposts. In addition, the plaintiff becameeven less believable when it became clearthat she fabricated a lawn mowing invoice.
What Can We Learn? cont.
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EMPLOYEE SPOTLIGHT
S U M M E R 2 0 1 4 | PA G E 6Examiner
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Through Lesley’s experience with NCMIC,she has become knowledgeable about theproducts and services offered. As part of herrole with the NCMIC Insurance Client ServiceCenter, Lesley fields web requests and online chat inquiries.
Whether you are an existing policyholder, a doctor interested in becomingan NCMIC policyholder, or have questions regarding additional products andservices, such as long term disability insurance, Lesley can answer yourquestions.
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Communication gaps often occur in ahealthcare setting when patients who are notproficient in English are too embarrassed orintimidated to ask for help. The problem canbe compounded if a doctor assumes a patient’s lack of questions means the person understood the discussion.
Other times the doctor may recognize the patient is less-than-proficientin English and seek the help of a patient’s family member. However, eventhat approach can affect patient safety. Consider the following scenario:
Mary Santos, age 81, was seen at the request of her daughter, a regularpatient of Dr. Potter’s chiropractic practice. Mary was in town visiting familyand had developed a backache and shortness of breath. She was accompanied to the office by her 14-year-old granddaughter.
After being taken to an exam room for intake and H&P, it was evident to theCA that Mary spoke only broken English and had difficulty understandingit. At times, her granddaughter answered the CA’s questions when the patient seemed to hesitate. Ultimately, the CA was able to get the informationshe needed through this process.
When Dr. Potter arrived and examined the patient, his interaction withthe patient was the same, but he got by with the help of the granddaughterand was able to complete his questioning and examination. He told Maryshe had a lumbar strain, and the shortness of breath was secondary. Headvised stretching exercises and ice packs.
The next day, Mary was found on the bathroom floor by her daughter.She was doubled over with severe back pain. She was taken to the ER byambulance. Upon further questioning by the ER’s Spanish interpreter, itwas determined that the woman had exercised excessively for an 81 yearold and had eaten the ice rather than applied it to her lumbar spine.
Mary was following what she thought were Dr. Potter’s orders but endedup in the hospital for three days. Though Mary suffered no long-term effectsfrom this episode, she filed a malpractice suit against Dr. Potter and hispractice. The lawsuit faulted Dr. Potter for failing to recognize that neitherMary nor her granddaughter had the language skills to understand his instructions regarding exercise and ice therapy and for neglecting to offerher the services of an interpreter.
In this case, a family member, especially a minor, should not have beenconsidered an appropriate translator.
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Legal RequirementsBeyond being part of good clinical care, the need to ensure effective
doctor/patient communication and patient comprehension is a legal issue.Under Title VI of the Civil Rights Act of 1964, all healthcare facilities and providers receiving federal financial assistance (e.g., Medicaid andCHIP) from the Department of Health and Human Services (HHS) mustprovide their patients with equal access to services. The following HHSstandards specifically target language access in healthcare organizations:
• Must offer and provide language assistance services, including bilingual staff and interpreter services, at no cost to each patient/ consumer with limited English proficiency at all points of contact, in a timely manner during all hours of operation.
• Must provide to patients in their preferred language both verbal offers and written notices informing them of their right to receive language assistance services.
• Must assure the competence of language assistance provided to patients with limited English proficiency by interpreters and bilingual staff. Family and friends should not be used to provide interpretation services (except when patients request it).
• Must make available easily understood patient-related materials and post signage in the languages of the commonly encountered groups and/or groups represented in the service area. (D.C.s should consult with legal counsel about responsibilities.)
HHS issued guidelines to assist facilities and providers with compliance.These guidelines were relaxed in 2003to encourage voluntary compliance byproviders. However, they do not relievedoctors of their responsibilities to provide meaningful access to patientswith limited English proficiency.
Language services may be provided to these patients through oral interpretation by an in-person interpreter, by using telephone or video services, through written translation, or through a combination of methods.Doctors have some flexibility in determining the appropriate mix of the language services they provide.
Language barriers are one part of a larger problem of health illiteracy.Along with the dynamics of the population becoming more diverse, this is a growing area of concern for healthcare practitioners. Consequently, D.C.s should address, if they haven’t already, how language barriers will impact their practices now and in the future.
For additional guidance, go to www.languageline.com
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HIPAA Security Standards require every health-care practitioner and practice to protect the privacy of patient health information (PHI). However, patient privacy can easily bejeopardized through electronic devices.
D.C.s are not excluded from this complex andoften confusing legislation. The penalties for violations of patient privacyand confidentiality are substantial. A legal challenge is costly, time consuming, challenging, destructive and disruptive to the functioning of the practice. High-profile institutions have been highlighted in the headlines. However, the risk for smaller practices and entities is growing.
Email Communications with PatientsJust as you ask patients for their contact information, ask them whether
the practice may communicate with them via email. These preferencesshould be checked regularly to ensure the patient’s email address or communication preferences have not changed. Make sure to add a disclaimer to your emails stating that patients shouldn’t communicateabout time-sensitive matters via email.
It can be helpful to address:• The person who will be designated to: communicate with the patient
via email; monitor the practice’s email account; route the emails; ensure patient emails are answered within the practice’s turnaround time; and archive emails to and from the patient.
• The timing for answering emails (e.g., within 24 hours and during normal office hours).
• The manner of obtaining and storing patient consent to communicate via email, and how this information will be retained in the patient’s healthcare record.
• The systems needed to protect confidentiality and security of PHI (e.g., passwords, encryption and patient authentication).
• The issues which may or may not be addressed via email.
• Instructions for what the patient should do in an emergency or in another situation requiring a prompt response.
• The consequences if a staff member or patient doesn’t comply with the practice’s email policies and procedures.
Limitations with Texting
Although using texting for appointment reminders, preventive health notices, andother health information may be beneficial,there are limitations and potential risks toconsider. These include:
• A lack of encryption when sending and receiving messages can result in PHIbreaches and HIPAA violations.
• Unlike emails, there is no retrievablerecord of a text message exchange toenter into the patient’s record.
• There is an inherent expectation that text messages are read and responded to promptly.
• Text messaging is not secure—with theright technical ability, messages can beintercepted and read during transmission.
• Size restrictions make it difficult to include sufficient clinical information.
• The use of abbreviations may be misinterpreted.
• Texting is inherently casual and personal.
• Spellcheck and auto-correct features cancreate problems.
S U M M E R 2 0 1 4 | PA G E 1 1Examiner
Smart Phones/Electronic DevicesA recent study by the Pew Research Center and the California Health
Care Foundation* reported that the use of cell phones to obtain health information is expected to grow rapidly. As the use of these devices becomes more common, so does the potential for breaching patient confidentiality and violating HIPAA regulations. The most obvious threat is associated with the physical loss or theft.
The National Institute of Standards and Technology considers cellphones at “high risk for loss, theft, disposal and unauthorized access.”Once lost or stolen, patient confidentiality is at risk if these devices containPHI and encryption is not in place. This can result in a HIPAA violation.
Make sure to keep devices that are not in use but contain PHI under lockand key. Employee policies regarding these devices should include what todo in case of loss or theft of any device that contains PHI. In addition, thereare security risks when personal devices are brought into the practice. Assuch, it can be helpful to address:
• Are policies in place to safeguard patient privacy? This should include policies to secure the device (i.e., password/access numbers are enforced).
• Are devices protected against viruses, hacking and malware?• Do devices have encryption features if PHI is accessed and
transmitted?• Can data be wiped remotely if a device containing PHI is lost or
stolen?
Many D.C.s have embraced texting as an easy way to communicate with colleagues and staff. Texting has obvious appeal in that it is fast, easy and inexpensive. Unlike email, text messages are typically read by the recipient and responded to quickly (often within minutes of receipt).And, text messages are viewed as much less obtrusive than a phone call. However, texting is not without risk and limitations. (See sidebar on previous page.)
Risk vs. RewardAlthough patient privacy can easily be jeopardized through electronic
devices, they are the wave of the future. Now is the time to address howthey will be used to ensure PHI remains secure, and patient care is uncompromised.
For more information about HIPAA compliance, go towww.ncmic.com/prc/office-staff/practice-procedures/hipaa-compliance.aspx.
* Pew Internet/CHCF Health Surveys. Mobile Health 2012. November 8, 2012.
HIPAA regulations require you to ensure the confidentiality, integrity andavailability of all electronic protectedhealth information (PHI) you collect, receive, maintain or transmit againstreasonably anticipated threats or hazards to the security or integrity of such information. You are required to make an analysis of the risks and vulnerabilities to the PHI in your possession and implement securitymeasures sufficient to reduce thoserisks and vulnerabilities to a reasonableand appropriate level.
As you may know, Microsoft ended support of its Windows XP operatingsystem on April 8, 2014. This version ofWindows will no longer receive softwareupdates, including security updates thathelp protect PCs from viruses, spywareand other malicious software.
But all practices, whether using Windows XP or not, should conduct arisk analysis to be certain the operatingsystem in use in your practice is currently supported by the vendor, andthat all updates have been applied.Windows, Mac, Linux and other vendorshave differing support timelines and versions.
If you are using a version thatis out of support, you need tomigrate to a new version.
Older Computer Operating Systems Put D.C.s at Risk forHIPAA Noncompliance
Family, Friends and Employees as PatientsBe Aware of the Pitfalls
Doctors periodically provide clinical care outside of chiropractic maintenance care to their family members, friends and employees. Good intentions motivate these actions, but difficulties may arise. Consider the following:
Scenario 1—Grandchild as PatientRob Sutere, D.C., was on vacation in the Caribbean with his
daughter and grandson. His daughter came in from the beach carryingher two-year-old son, Toby, who was crying. She told her father that Tobyhad been unable to settle down for the last hour, and she thought he mightbe getting an ear infection.
Dr. Sutere took a look, and saw no redness or swelling of the eardrum,so he didn’t think it was an ear infection. Instead, Dr. Sutere believed Tobyprobably got seawater in his ear and was overtired. The child was put tobed and stopped crying within 15 minutes. Later that night, Dr. Sutere’sdaughter went to check on Toby. She found he had vomited, was shakingand could not be aroused. She called her father who noticed the childwas also having difficulty breathing and was feverish.
They called 911 and Toby was taken by ambulance to the local hospital.Upon arrival, the child suffered a seizure, and the ER doctor found a largered and inflamed welt on the back of Toby’s right ear.
Toby had been stung by a jellyfish and had an allergic reaction to the venom. After receiving prompt treatment, Toby recovered with no permanent auricular damage.
In this scenario, the doctor did his best considering he was out of hisrealm and close to the situation.
Scenario 2—Employee as Patient32-year-old Sara Johnson was at work as a CA when she told Derrick
Anatole, D.C., she had been having sharp abdominal pain on her left side,as well as nausea off and on for the last 36 hours.
Dr. Anatole asked Sara some routine questions and determined that her last menstrual period was 7 weeks earlier, but that she had alwaysbeen irregular. He had her lie down on an exam table and palpated herabdomen but was not able to evoke a specific pain response.
Dr. Anatole told Sara that she probably had a gastrointestinal bug. He sent her home, telling her to force fluids and get some rest. The nextmorning, Sara did not report to work or call in sick.
After several attempts to reach Sara by phone, the office manager
With our policy, full-time D.C.s can get a 5% discount
(2.5% discount for part-time D.C.s) for three consecutive years by
attending a qualifying 8-hour seminar. See page 6 of this issue or
called her sister—Sara’s designated emergency contact—and told herthat the office had been trying to reach Sara but had been unable to do so.
Unfortunately, when her sister went to check on her, she found Saradead in her bed. An autopsy revealed a ruptured ectopic pregnancy.
Dr. Anatole didn’t view this as a patient encounter—just as helping anemployee. However, it became apparent that Sara perceived Dr. Anatole’ssuggestions as clinical advice, and his actions would not have been able to be defended in the event of a malpractice lawsuit.
Issues with Family Members and Friends• A doctor treating a family member/friend may find it difficult to
maintain professional objectivity and clear clinical judgment.• The personal relationship may make it challenging to obtain a good
history and perform a complete exam (e.g., asking sensitive questions about sexual topics, domestic abuse or drug/alcohol use). This can produce a doctor/patient encounter that does not meet the standard of care.
• Past clinical records, medication lists, and other information may not be available or reviewed. Proper documentation of a clinical encounter between a doctor and a family member/friend is rarely present.
• Doctors may attempt to render care outside of the chiropractic standard of care in their quest to help.
• Due to the personal relationship, a relative/friend may be reluctant to question the doctor’s recommendations or ask for another opinion.
Issues with Employees• Employees may be hesitant to share sensitive information, be
reluctant to question the doctor’s treatment recommendations or ask for another practitioner’s opinion.
• If a doctor decides NOT to document sensitive information to protect it from being discovered by other employees, the note would be incomplete.
• Hasty hallway consultations could establish a doctor/patient relationship that may not meet the acceptable standard of care.
• Employees should not receive special treatment. They should be seen during regular office hours when they are off-duty and be afforded the same HIPAA protection as the practice’s general population.
• Be careful about providing care for on-the-job injuries. Should the employee file a workers’ compensation insurance claim, the doctor’s treatment may be considered a conflict of interest. In these cases, it’s best to refer the employee to a trusted colleague.
In general, it is best to avoid informal consults with family, friends or employees (as well as colleagues). Politely advise them that you cannotprovide optimum care without a complete history and a physical examination.If appropriate, ask the person to schedule an appointment at your office.
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Assistant Vice Presidents:Barb Clark OperationsTraci Galligan Human ResourcesKeith Henaman ClaimsPaul Luckman Underwriting Mike Whitmer Corporate RelationsDavid Siebert Professional Liability
ProgramA.J. Simpson Customer ServiceJoseph S. Soda Insurance Services
Examiner is published quarterly for policyholdersof NCMIC’s Malpractice Insurance Plan. Articlesmay not be reprinted, in part or in whole, withoutthe prior, express written consent of NCMIC. Information provided in the Examiner is offeredsolely for general information and educational purposes. It is not offered as, nor does it represent,legal advice. Neither does Examiner constitute aguideline, practice parameter or standard of care.You should not act or rely upon this informationwithout seeking the advice of an attorney. If thereis a discrepancy between Examiner and the policy,the policy will prevail.
“We Take Care of Our Own” is a registered service mark of NCMIC Group, Inc. and NCMIC Risk Retention Group, Inc.
You may not use an NCMIC Group trademark orany other NCMIC Group owned graphic symbol,logo, icon, or company name in a manner thatwould imply NCMIC Group’s affiliation with or endorsement or sponsorship of a third-party product or service.
Louis Sportelli, D.C., PresidentJohn J. DeMatte IV, D.C.Claire Johnson, D.C., MSEdMatthew H. Kowalski, D.C.Vincent P. Lucido, D.C.Mary Selly-Navarro, R.D., D.C.Marino R. Passero, D.C.Wayne C. Wolfson, D.C.
Also, serving on the NCMIC Risk Retention Group, Inc. board are: Louis Sportelli, D.C.; Wayne C. Wolfson, D.C.; Vincent P. Lucido, D.C.; Russel A. Young, Esq., Vermont Director; Patrick E. McNerney, Director; Roger L. Schlueter, Director; and Jacqueline Anderson, Director.
Examiner 2014Send inquiries, address changes,
and correspondence to:
NCMIC Examiner P.O. Box 9118, Des Moines, IA 50306-9118 1-800-769-2000, ext. 3945
NCMIC Insurance Company is a subsidiary of National Chiropractic Mutual Holding Company
National Chiropractic Mutual HoldingCompany Directors
WHAT’S NEW AT NCMIC AND IN CHIROPRACTIC
Drs. Kowalski, Passero and Wolfson Re-elected Matthew H. Kowalski, D.C., D.A.B.C.O., Marino R. Passero, D.C., and
Wayne C. Wolfson, D.C., were re-elected to the Board of Directors of National Chiropractic Mutual Holding Company during the annual meeting on April 21, 2014, in Clive, Iowa. For more information about the board, go to www.ncmic.com/about-ncmic/ncmic-management.aspx.
Robert Mootz, D.C., Receives 2014 McAndrews’ Award
The NCMIC Foundation awarded Robert Mootz,D.C., with the Jerome F. McAndrews, D.C., MemorialResearch Fund Award on March 21, 2014, at the Association of Chiropractic Colleges EducationalConference and Research Agenda Conference(ACC-RAC).
As a recipient of the McAndrews’ Award, Dr. Mootz was recognized for his drive to educate, elevate, and influence others, specifically thepublic, healthcare providers, and policymakers. Dr. Mootz currently serves as theAssociate Medical Director for Chiropractic at the Department of Labor and Industriesfor the State of Washington. Examples of his work include:
• Co-investigator on Washington State’s “Occupational Health Services Project” • Agency lead for “Occupational Health Conservative Care Best Practices
Resources” • Project lead for numerous evidence-based health policy, guidelines and
coverage decision efforts These efforts have a system-wide impact on improving healthcare to injured workers,
providing an evidenced-based approach to healthcare, and developing a level playingfield for all healthcare providers, including Doctors of Chiropractic.
The Jerome F. McAndrews, D.C., Memorial Research Fund was created by contri-butions to the NCMIC Foundation special fund from the McAndrews family and othercolleagues of Dr. McAndrews who wanted to show their respect and appreciation tohonor his long-standing contributions to the research and advancement of the profes-sion. It provides an award each year to a worthy research recipient. This award recog-nizes an individual or a group who has demonstrated exceptional ability to:
1. Advance research and the exchange of scientific information 2. Promote high ethical standards in research and/or practice3. Contribute to practical applications to chiropractic practice4. Interact professionally with other individuals and groups involved in relevant
research and applicationPast recipients of this award are: James Whedon, D.C., M.S. (2013), Pierre Côté,
1. A patient or other visitor slips and is injured at your practice. _____
2. An employee trips over a cord in your practice _____
3. A former employee files a lawsuit for wrongful termination. _____
4. An employee is in an auto accident while driving a personal carto the bank to make the daily deposit for the practice. _____
5. You must appear before your state licensing board on anallegation made about your practice. _____
CORRECT Answers1. B Your general liability policy typically provides coverage if someone (patient, visitor or just a passerby) is injured on your premises.2. C Workers’ compensation insurance provides benefits if an employee suffers a work-related injury or illness.3. D Employment practices liability insurance provides coverage for a wide range of employee lawsuits including wrongful termination,
sexual harassment, discrimination and more.4. E A hired/non-owned auto endorsement provides coverage for your practice when vehicles that are owned by employees are used on behalf
of the company. 5. A An NCMIC malpractice insurance policy contains a legal defense supplement that provides coverage for your defense costs for appearances
before a state licensing board.
NCMIC Insurance Services is a licensed, full-service insurance agency. Insurance coverage is underwritten through some of the industry’s leading insurance carriers.CA license #OB84564. Coverage subject to policy’s stated Limits of Liability.
Insurance Services
Take
Thi
s
Does Your Insurance Provide the Right Coverage?Growing a successful practice requires a significant investment of time, planning and money. It’s important to protect what you’ve work so hard to build. When the unexpected happens, make sure you have the right insurance coverage.
Take this short quiz to see how well you understand some of the basic policiesneeded by many D.C.s.
What insurance policy provides coverage if:
A. Malpractice
B. General Liability
C. Workers’ Compensation
D. Employment PracticesLiability
E. Hired/Non-Owned Auto
Choose from one of these insurance policies:
Sometimes it’s important to know what ISN’T covered as wellas what IS covered in your insurance policy.
If you have questions about your current coverage, contact a licensed insurance agent at NCMIC by calling 800-990-7002, ext. 8275 or by email at [email protected].
YOUR QUESTIONS
S U M M E R 2 0 1 4 | PA G E 1 6Examiner
Can I Be “Too Friendly”?
Though your personable nature is generally a positive for yourpractice’s risk management, you are on the right track to keep iton a professional level. Here are some tips:
Know your patient. While many patients will appreciate your casual demeanor, others will prefer a more serious approach. This doesn’t meanyou need to completely change your personality, but instead modify yourapproach based on what you observe in your patient’s body language.Most patients will react when their personal space is violated.
The best surprise is no surprise. Whether in examinations or treatments,always tell the patient in advance what you are going to do and why. A patient’s first visit to your office is an especially critical time for clearly andeffectively communicating and establishing expectations. It is also importantto explain the specific types of treatments performed. For example, explainto someone with low back pain that you are moving down the waistline ofhis or her pants to apply electronic stimulation therapy.
Along these same lines, explain all tests and obtain patients’ permission before performing them. This usually requires explaining the clinical necessity of examinations. A patient’s consent and permissionis especially important for exams involving any private areas.
Give explicit instructions regarding any articles of clothing to be removed. Example: “Please remove your shoes, socks, pants, and shirt, butdo not remove any of your undergarments. Wear the gown with the openingin the back. Be sure and close the gown using the Velcro or ties on theback.” The patient should then be instructed to slightly open the examinationroom door when they are finished gowning. By opening the door, the patient initiates the examination process and maintains more control.
Avoid “off-the-cuff” comments. For example, what you perceive as aninnocent remark about a patient’s undergarment could be misconstrued.
Be cautious when texting, blogging and posting to social networksas comments made on social media may be more apt to be misconstrueddue to their casual nature. (You must also protect patient confidentiality onsocial media to avoid a HIPAA violation.)
For more detailed guidance on “Defining the Limits of Personal Responsibility,” go to www.ncmic.com/prc/risk-management/professional-boundaries/default.aspx.
I’m a chiropractor with a friendly, easy-going nature that at
times has been misconstrued by my patients as flirtatious.
What are some tips that might help me avoid an allegation
of a boundary violation?
Related to your patient communications, be aware some states mandate that their doctors implement an informed consent process with all patients. Consult with your state licensing board regarding the form and substance of its informed consent requirements.
What Does Your State Require?
The Benefit D.C.s Rely on to Avoid Claims
Worried about a touchy situation?Just need advice? Call NCMIC’s confidential Claims Advice Hotline at 1-800-242-4052 to talk with aprofessional claims representativeabout any concern or situationyou’re not sure how to handle.
See Q & A for an example of howNCMIC’s Claims Advice Hotline has helped D.C.s like you.
