robert s. thompson south dakota mgma 2014 rt, jd, mba, llm ... · title: patient and team...

Copyright 2013 MMIC • All rights reserved

South Dakota MGMA 2014

Robert S. Thompson

RT, JD, MBA, LLM, RPLU, CPCU

Director of Education - MMIC

1


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


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

3


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

4


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

5


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


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.


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.


Patient Communication


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



• 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)



• 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


What contributes most to OB claims?

• Substandard Judgment (77%)

• Miscommunication (36%)

• Technical Error (26%)

• Inadequate Documentation (26%)

• Administrative Failures (23%)


What Contributes Most to Surgical Claims?

• Technical Skill (~67%)

• Clinical Judgment (~62%)

• Communication (~33%)


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


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%



• 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



• Increasing in importance – patients are (think they

are):

• More prepared through research

• More medically savvy

• More challenging of medical opinions

• More “consumer” than patient


Steps for Establishing Quality Patient

Communication Skills

• Build Rapport/Set the Tone

• Elicit Concerns

• Set the Agenda


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


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


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?”


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?”


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


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


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!!


Quality of Teamwork Across 25 Organizations:

Differences Between Physicians and Nurses

1

2

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4

5

Nurse rates Physician Physician rates Nurse

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Slide courtesy of Michael Leonard, MD


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


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


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


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!!


Communication Between Providers

• JOUSTING

– Intentional

– Unintentional

– Non-verbal

• Creates patient doubt

• Dissention in medical community

• Interferes with trust relationship

• Causes malpractice claims


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.”


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


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


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?


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



• 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



• 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


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


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


Follow-Up Systems: Key Steps

# 1 – Timely Receipt of Results

# 2 – Timely Review

# 3 – Timely Notification

# 4 – Tracking No Shows and Cancels


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


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


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


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


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


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?


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


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


“Full disclosure is the right thing to do. It is

not an option; it is an ethical imperative.”

Lucian Leape


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


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


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


Adverse Outcomes

• Unanticipated, adverse event

• May be risk of procedure (IC)

• Rarely valid malpractice claim

58


Medical Errors

• Iatrogenic injuries

• Clear mistakes: retained objects, overdoses, wrong

site/side surgeries

• Liability issues

59


“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

60


When Do You Disclose?

• Adverse outcome, no errors

• Error without adverse sequelae

• Error leading to temporary, correctable condition

• Error leading to permanent disability, death

61


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?


When is Disclosure Inappropriate?

• When it is premature

• When explanation is half-hearted

• When practitioner discloses to shift blame (Jousting)

63


What Do Patients Want From Disclosure?

• Acknowledgement of the event or error

• An explanation

• An apology

• An assurance it will not happen again

64


How to Disclose/Apologize-Planning

• Style

• Sincerity

• Timing

• Setting

• Who is present

• Who actually does the speaking

• Manner presented

65


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


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


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

68


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

69


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

70


How to Apologize

• Acknowledge harm

• Express regret

• Accept responsibility

• Offer amends

• Ask for understanding

72


How NOT to Apologize

“It’s disappointing to me to realize how

human I sometimes am.”

73


How NOT to Apologize

“I’m sorry you waited so long to see me

because I could have saved you earlier.”

74


What to Document

• Met with the patient/family

• Explained the result

• Described treatment and action plan

• Expressed commitment to continuing care

75


Do NOT Document

• Called my attorney

• Called and talked to malpractice carrier

• Discussed at QA meeting

• Nurses reprimanded for error

• I smell a lawsuit

76


Your Role

• Remain calm

• Be honest

• Be objective

77

• Don’t guess or speculate

• Be sincere

• Get advice


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

78


Questions???

79

robert s. thompson south dakota mgma 2014 rt, jd, mba, llm ... · title: patient and team...

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