Copyright 2013 MMIC • All rights reserved
South Dakota MGMA 2014
Robert S. Thompson
RT, JD, MBA, LLM, RPLU, CPCU
Director of Education - MMIC
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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
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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
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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
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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
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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
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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 2011. 365(7):629-636.
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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): 657-667.
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Patient Communication
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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
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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)
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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
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What contributes most to OB claims?
• Substandard Judgment (77%)
• Miscommunication (36%)
• Technical Error (26%)
• Inadequate Documentation (26%)
• Administrative Failures (23%)
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What Contributes Most to Surgical Claims?
• Technical Skill (~67%)
• Clinical Judgment (~62%)
• Communication (~33%)
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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
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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%
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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
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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
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Steps for Establishing Quality Patient
Communication Skills
• Build Rapport/Set the Tone
• Elicit Concerns
• Set the Agenda
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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
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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
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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?”
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Communication:
Elicit Concerns
• Listen with quiet curiosity
– ALLOW YOUR PATIENTS TO TALK!!!!!!
– Beckman HB, Frankel RM-Ann Intern Med. 1984 Nov;101
– “How long on average does a physician allow a patient to
talk before first interrupting?”
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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
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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
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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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Quality of Teamwork Across 25 Organizations:
Differences Between Physicians and Nurses
1
2
3
4
5
Nurse rates Physician Physician rates Nurse
Qu
ali
ty o
f T
eam
work
Sca
le (
1=
ver
y l
ow
to 5
=ver
y h
igh
)
Slide courtesy of Michael Leonard, MD
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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
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United 173 - Portland
• DC-8 Plane Crash December 28, 1978
• 10 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
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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
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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!!
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Communication Between Providers
• JOUSTING
– Intentional
– Unintentional
– Non-verbal
• Creates patient doubt
• Dissention in medical community
• Interferes with trust relationship
• Causes malpractice claims
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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.”
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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
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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
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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?
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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
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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
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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
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The Key Steps: Follow-up System Cycle
Test
ORDERED
Patient
RETURNS
for follow-up
Appointment
Follow-Up
APPOINTMENT
scheduled
DOCUMENTATION of
notification and instructions to
patient
Results
REVIEWED
For clinical decision
Results RECEIVED
Test DONE Patient
ASSESSED
Patient NOTIFIED
and given
instructions
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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
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Follow-Up Systems: Key Steps
# 1 – Timely Receipt of Results
# 2 – Timely Review
# 3 – Timely Notification
# 4 – Tracking No Shows and Cancels
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Follow-Up Systems
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
# 1 – Timely Receipt of Results
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Follow-Up Systems
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
# 2 – Timely Review
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Follow-Up Systems
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
# 3 – Timely Notification
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Follow-Up Systems
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
# 4 – Tracking No Shows and Cancels
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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
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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?
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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
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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
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
Copyright 2013 MMIC • All rights reserved 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
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
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“Full disclosure is the right thing to do. It is
not an option; it is an ethical imperative.”
Lucian Leape
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K. Mazor, Health Plan Members' Views about
Disclosure of Medical Errors
Annals of Internal Medicine, March 16, 2004
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
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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
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Liability Claims and Costs Before and
After Error Disclosure Program,
Kachalia, Ann Intern Med.
2010;153213-221.
Data from the UMHS Program 1995-2007 • 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: 2.13/100 000 pt encounters
– After Program: 0.75/100 000 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
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Adverse Outcomes
• Unanticipated, adverse event
• May be risk of procedure (IC)
• Rarely valid malpractice claim
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Medical Errors
• Iatrogenic injuries
• Clear mistakes: retained objects, overdoses, wrong
site/side surgeries
• Liability issues
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“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
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When Do You Disclose?
• Adverse outcome, no errors
• Error without adverse sequelae
• Error leading to temporary, correctable condition
• Error leading to permanent disability, death
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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?
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When is Disclosure Inappropriate?
• When it is premature
• When explanation is half-hearted
• When practitioner discloses to shift blame (Jousting)
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What Do Patients Want From Disclosure?
• Acknowledgement of the event or error
• An explanation
• An apology
• An assurance it will not happen again
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How to Disclose/Apologize-Planning
• Style
• Sincerity
• Timing
• Setting
• Who is present
• Who actually does the speaking
• Manner presented
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Style counts!
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
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Shows you care!
Style counts • Valuable qualities:
– Transparent
– Organized
– Thoughtful
– Remorseful
– Empathic
– Forthright
• These qualities are powerful tools
– Helps to repair the broken trust
– Are trainable skills
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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
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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
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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
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How to Apologize
• Acknowledge harm
• Express regret
• Accept responsibility
• Offer amends
• Ask for understanding
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How NOT to Apologize
“It’s disappointing to me to realize how
human I sometimes am.”
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How NOT to Apologize
“I’m sorry you waited so long to see me
because I could have saved you earlier.”
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What to Document
• Met with the patient/family
• Explained the result
• Described treatment and action plan
• Expressed commitment to continuing care
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Do NOT Document
• Called my attorney
• Called and talked to malpractice carrier
• Discussed at QA meeting
• Nurses reprimanded for error
• I smell a lawsuit
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Your Role
• Remain calm
• Be honest
• Be objective
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• Don’t guess or speculate
• Be sincere
• Get advice
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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
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Questions???
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