Palm Beach County Medical Society

Risk Management

Minimizing the Risk of Embezzlement in a Medical Practice

The Caring Part of Risk Management              

The focus of so many risk management courses for doctors has been about the old standard of document, document, document.  How many CME courses have you sat through drilling you with this defensive motto?  As important and necessary as good documentation is, I want to present another side of the equation, and another motto:  communicate, communicate, communicate. This is a much more patient-friendly, offensive stance and one that the idealists among us may even say would cure the world, but we are just trying to cure a fundamental issue on medical practice turf.  Communication is about doing the right thing for the doctor / patient relationship, not just about making sure you document enough not to avoid lawsuits.  Communication is about making sure that your patient’s voice is heard as clearly yours.  Communication is about making sure fears and expectations are discussed openly and freely between doctors and patients.  Communication is about making the doctor / patient relationship so strong that the legal system is a weak option for patients to resolve any unexpected and unwanted outcomes that inevitably arise in every medical practice.

The fundamental communication with patients needs to be how much you care about them. Sir William Osler, often called the most influential physician in history, put it so eloquently when he said that “Patients don’t care how much you know until they know how much you care.”  This somewhat explains lawsuits against uncaring but superbly trained and brilliant doctors, whom surely document well.  Look at the examples in your everyday business affairs with your most trusted advisors.  Do you stray with them because they are the very best in their industry, or is it more because you know that they care about you.

The top ten patient satisfaction elements are concern, friendliness, patience, sincerity, consideration, availability, technical quality of care, outcome, cost, and practice environment. Almost all of these are benchmarks of caring and those that aren’t can be helped considerably with clear communication and expectation management.  Satisfied patients do not sue their doctors even when they are not satisfied with their health. Many lawyers hear from potential plaintiffs that they do not want to sue one certain member of their team of doctors because they like them. They like them because they feel cared for, which sounds simple and rhetorical, but that is the point.  I truly believe that the vast majority of doctors deeply care about their patients, but way too many do not know how to effectively communicate their caring. 

According to most professional risk management studies, up to seventy-five percent of lawsuits can be attributed to communication issues. The great news about this rather astounding fact is that this is quite fixable.  Think what a difference you can make in your patient’s and your own satisfaction and in decreasing your chance of being sued , by implementing caring, complete, and clear communications.  Implementation of systems that give the everyday structure to great communications is vital for every practice but when it comes down to it just a simple expression to every patient of your sincere caring and concern is a powerful place to start your next risk management efforts.

Terminating Care of High-Risk Patients

As the malpractice insurance crisis deepens in Florida, many doctors’ malpractice insurance coverage is in jeopardy of being non-renewed by their insurance companies. The most important factor for insurance company underwriting departments deciding if they will offer a doctor continuing coverage is the claims experience of each doctor.  In Florida a doctor has a one in five chance of being sued for malpractice in his or her career.  Sound risk management advice stresses communication and documentation as two of the most important areas for doctors to focus on to reduce their exposure to lawsuits.   

As doctors strive for improved communications, sometimes they find nothing is working with a particular patient.  With these patients doctors must admit to themselves that there is a higher risk of being sued and then must determine if the increased risk is worth continuing the care of the patient.  The risk factors are associated with a number of types of patients, including the following:

1. Those who do not follow medical advice.
2. Patients who are argumentative, threatening, or hostile to the treating physician or staff members.
3. Patients who regularly do not pay their bills.
4. Patients who are known to have sued other physicians.
5. Patients who regularly miss their appointments for follow-up treatment.

A doctor in Florida has the right to terminate the patient / doctor relationship by withdrawing from the care of the patient.  Such action needs to be taken very seriously to avoid a lawsuit from a patient alleging abandonment.  Timing of the termination is the first consideration, as each case is different and a wrongly timed withdrawal of care has landed many doctors right in the courtroom they were trying to avoid.  Certainly if the patient needs care at the time the doctor wants to terminate the relationship, it is highly advisable that the patient be given treatment first to stabilize the patient’s condition.  Equally important is the physician’s follow-up with the patient to make sure a new doctor has taken over.  Of course, if the patient’s condition deteriorates before another doctor is found, the physician should continue treatment. 

The best way to handle a patient termination is to first discuss with the patient the fact that you need to withdraw from the relationship.   A certified, return receipt letter, with a copy sent regular mail, needs to follow to officially notify the patient of your decision and give them ample time to find a new doctor. 

With the state of our present malpractice insurance market in Florida, every physician is increasingly too vulnerable to serious coverage issues resulting from just one claim.  Now is the time to make the sometimes difficult decision to terminate those patients who clearly present a high risk to the treating physician.  Physicians train too long and work too hard in their practices to find their careers threatened by patients they knew they should have withdrawn treatment from years ago.  This need for doctors to terminate care for high-risk patients is another symptom of the legal system that doctors are caught-up in, so doctors should not feel any guilt about protecting themselves and their practices.

New Network Improves Patient Safety

 Medical liability protection requires that physicians are well-informed about patient safety issues quickly and reliably.  The Health Care Notification Network (HCNN) is a new network to deliver drug safety alerts online to U.S. physicians and was recently launched to replace the decades-old system based upon paper and U.S. mail. Funding for the HCNN comes from the healthcare manufacturers who currently pay for these same FDA alerts to be sent on paper via US Mail –  the HCNN is free to all licensed U.S. physicians, and is solely used for patient safety alerts that are product-related and mandated by the FDA. It ensures the most rapid and effective delivery of important alerts to physicians, thereby improving patient safety and office efficiency while reducing liability and paperwork. It may also be used to notify physicians in the event of national public health emergencies or bio-terror events.

Why Should Physicians Register for the HCNN?
The HCNN is good for providers and for patients because it improves the speed and efficacy of patient safety alert delivery. U.S. liability carriers, medical societies, health plans, government officials and other healthcare leaders are asking all physicians to register for HCNN because it improves patient safety, reduces physician liability, and ensures the fast and convenient delivery of patient safety alerts. The HCNN also stores and files alerts and can send them automatically to other members of the practice staff. HCNN benefits include:

• Improved patient safety
   
• Reduced professional liability
   
• Immediate receipt of important clinical information
   
• Increased convenience for practices
   
• The ability to have patient safety alerts also sent to other members of your office staff
   
• Reduction in office paperwork and mail
   
• The ability to get more information about a specific patient safety alert
   
• The ability to enter into a discussion area with other providers who have received an alert
  
  For more information please visit www.hcnn.net.

Electronic Communications

RISK & LIABILITY ISSUES ASSOCIATED WITH ELECTRONIC PHYSICIAN/PATIENT COMMUNICATION
By Cliff Rapp, LHRM
Vice President, Risk Management
First Professionals Insurance Company

Written and verbal communications have traditionally been the primary method of communicating healthcare information. The evolution of the internet and electronic mail (e-mail) has created new avenues for providing such information and communicating with patients.  E-mail has become recognized as another communications alternative with a number of potential benefits.  Recent data reveals that there is a growing demand by patients for specific healthcare information and directives. Along with that demand is an increasing expectation for online interactivity.  

The benefits of electronic communications must be viewed and weighed in conjunction with legal concerns and an increase in liability exposure which are inherent with this method of communication. To date, the legal waters of electronic communications are largely untested. Consequently, it is important for those who communicate electronically to address the key risk management issues when developing office policies and procedures for internet­ based communications. Careful attention should be given to addressing patient privacy, confidentiality of protected health information, and internet security.  Safeguards such as data encryption, consent agreements, and disclaimers should be considered and implemented where appropriate.

ONLINE ADVANTAGES
There are numerous advantages in communicating electronically with patients. Inherently, electronic transmission of information is faster than traditional modalities, and in some cases, instantaneous. Along with meeting growing expectations for quick and precise information exchange, electronic communications have these advantages:

• Informs and educates patients
• Enhances informed consent and patient compliance
• Documents sequence of communication
• Confirms delivery of communication/ information
• exchange
• Provides a means for  automated follow-up
• Provides for more efficient use of office staff

INHERENT RISKS

There are inherent risks in utilizing electronic communications.  These risks include:

• Online malpractice exposure
• Extension of the physician/patient relationship
• Inadvertent creation of the physician/patient relationship
• Inappropriate disclosure of confidential patient information

RECORDS BECOME EVIDENCE

It is important to remember that seemingly intangible electronic communication becomes part of the patient's medical records, and as such could become evidence in a malpractice claim. Consider all forms of communication as potential evidence. In this context, will the communication support a defense or facilitate a claim?

Such evidence could include:

• Notes you author
• Records made by others
• Correspondence
• Insurance & billing statements
• Staff notations and messages
• E-mail transmissions
• Answering service records

ELECTRONIC COMMUNICATIONS SYSTEMS

Electronic communications systems encountered in the healthcare delivery system include:

• Practice based internet web pages
• Electronic prescribing systems
• Wireless personal data
• Drug formularies, allergies and potential conflicts
• Electronic/hard copy email transmission
• Internal intranet web pages

RISK MANAGEMENT GUIDELINES FOR ELECTRONIC COMMUNICATIONS

Electronic communications should never be allowed to usurp human interaction.  E-mail and other means of electronic communications should be used to enhance and supplement the physician patient relationship. 

The American Medical Association (AMA) has published the following recommendations:

1. For those physicians who choose to utilize e-mail for selected patient and medical practice communications, the following guidelines should be adopted.
   
   Communication Guidelines:
   Establish turnaround time for messages. Exercise caution when using e-mail for urgent matters.
   Inform patient about privacy issues.
   Patients should know who besides addressee processes messages during addressee’s usual business hours and during addressee’s vacation or illness.
   Whenever possible and appropriate, physicians should retain electronic and/or paper copies of e-mails communications with patients.
   Establish types of transactions (prescription refill, appointment scheduling, etc.) and sensitivity of subject matter (HIV, mental health, etc.) permitted over e-mail.
   Instruct patients to put the category of transaction in the subject line of the message for filtering: prescription, appointment, medical advice, billing question.
   Request that patients put their name and patient identification number in the body of the message.
   Configure automatic reply to acknowledge receipt of messages.
   Send a new message to inform patient of completion of request.
   Request that patients use auto-reply feature to acknowledge reading clinicians message.
   Develop archival and retrieval mechanisms.
   Maintain a mailing list of patients, but do not send group mailings where recipients are visible to each other. Use blind copy feature in software.
   Avoid anger, sarcasm, harsh criticism, and libelous references to third parties in messages.
   Append a standard block of text to the end of e-mail messages to patients, which contains the physician’s full name, contact information, and reminders about security and the importance of alternative forms of communication for emergencies.
   Explain to patients that their messages should be concise.
   When e-mail messages become too lengthy or the correspondence is prolonged, notify patients to come in to discuss or call them.
   Remind patients when they do not adhere to the guidelines.
   For patients who repeatedly do not adhere to the guidelines, it is acceptable to terminate the e-mail relationship.
   
   Medicolegal and Administrative Guidelines:
   Develop a patient-clinician agreement for the informed consent for the use of e-mail. This should be discussed with and signed by the patient and documented in the medical record. Provide patients with a copy of the agreement.   The agreement should contain the following:
   Terms in communication guidelines (stated above).
   Provide instructions for when and how to convert to phone calls and office visits.
   Describe security mechanisms in place.
   Hold harmless the health care institution for information loss due to technical failures.
   Waive encryption requirement, if any, at patient’s insistence.
   Describe security mechanisms in place including:
   Using a password-protected screen saver for all desktop workstations in the office, hospital, and at home.
   Never forwarding patient-identifiable information to a third party without the patient’s express permission.
   Never using patient’s e-mail address in a marketing scheme.
   Not sharing professional e-mail accounts with family members.
   Not using unencrypted wireless communications with patient-identifiable information.
   Double-checking all "To" fields prior to sending messages.
   Perform at least weekly backups of e-mail onto long-term storage. Define long-term as the term applicable to paper records.
   Commit policy decisions to writing and electronic form.
2. The policies and procedures for e-mail should be communicated to all patients who desire to communicate electronically.
3. The policies and procedures for e-mail should be applied to facsimile communications, where appropriate.

Other Related Information

Lunch n' Learn Risk Management Series:

Documentation

Do's and Don'ts

Relationships