Cyber eMD Coverage Included in Your OMIC Policy
Ray Fontenot, VP Underwriting You’ve likely seen headlines announcing massive data breaches of sensitive data maintained by large banks or credit card companies and wondered if there really is any way to keep your personal information completely “safe” in an age of almost universal electronic and online data transactions. Well don’t look now, but health care is quickly following suit with much of our sensitive health information moving to EHRs and communication between physicians and practices being conducted often by email on PDA devices or portable computers.
Don’t make the mistake of thinking that the information you maintain electronically is not at risk. In the past 6 months alone, OMIC has recorded claims related to unauthorized access to EMRs, lost laptops with health and financial records, destruction of health files, and theft of information by disgruntled employees.
See the following articles that discuss:
eMD “Cyber Liability” Coverage added to our malpractice policy
Tips on what you should do to secure your electronic data
OMIC Resources:
What You Should Do Now To Protect Your Patient’s Eye Health Information
EMR Data Breach: Who Ya Gonna Call?
AMA Guide on Data Encryption:
Patient’s Anger Could Land You in Court
By Michael R. Redmond, MD
Argus, July, 1991
Why do patients become angry? When people enter into medical treatment they are under stress. Having surrendered some of their independence and control to the medical team, they develop certain expectations of the physician or hospital. If these expectations are not met or if the medical outcome is disappointing, the patient may become frustrated by a perceived lack of empathy and concern from the physician, the office staff or even the hospital.
Communication with the patient from the first visit is absolutely essential to build a rapport of openness, confidence and trust. Pertinent family members should be included in discussions about the patient’s disease process, planned medical treatment or surgery. Personally introduce any consultants or partners who will participate in the patient’s care. Effective communication on the part of the physician conveys a message of caring, especially when a complication occurs, and goes a long way towards preventing surprises. The quality of the “service” received as perceived by the patient is of ultimate importance in preventing a lawsuit.
When a complication does occur, explain the situation to the patient and family immediately and candidly. Don’t give them any reason to believe you are avoiding the issue, i.e., avoiding a “mistake.” Empathy and sensitivity are especially important in these situations. Give the patient and family members the opportunity to express their feelings and concern. Allow more than the usual appointment time or schedule a special appointment.
Extra check-ups or visits may be helpful, even if they are not absolutely necessary for the patient’s care. One colleague whose patient developed a postoperative endophthalmitis following cataract surgery visited that patient every day in the hospital, even though another physician was now treating the endophthalmitis and the surgeon was on vacation from the office. The patient and family knew the surgeon was on vacation and that expression of concern and caring, genuine as it was, went a long way towards preventing a lawsuit in a case with a less than optimal outcome.
Whether to reduce or eliminate an angry patient’s bill is a question that comes up often and is answered in different ways. Often such action can be the best thing, especially with simple dissatisfaction or anger over an office encounter. By eliminating the fee, the doctor does not admit guilt, although it can be misrepresented and misconstrued as such in a courtroom.
Care must be exercised in pursuing an unpaid bill even if the physician feels 100 percent in the right. Aggressive bill collection can sometimes aggravate an angry patient and the threat of a malpractice suit is often used to stop collection proceedings.
While a good sound office collection policy will generally suffice, problem cases require individual attention and perhaps consultation with your legal representative or malpractice carrier.
Accurate and appropriate documentation, without emotion or editorialization, is critical in the office and hospital record. Include the patient’s medical course and any confrontations arising from patient dissatisfaction or anger. As always, it is critically important to document initial discussions with the patient, preoperative discussions, the elements of informed consent and lastly, discussions concerning “surprises” and efforts to resolve them.
On some occasions, the patient’s anger cannot be defused and a new treating physician may be in everyone’s best interest. Avoid any hint of abandonment with an orderly transition of the patient’s care.
Prevention is the key. But when problems do occur, make every attempt to resolve them openly and promptly to everyone’s satisfaction.
Advertising for Medical Services
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Summer/Fall 2004
Allegations related to physician advertising are surfacing with increasing regularity in medical malpractice claims. In addition to alleging lack of informed consent, patients are using state consumer protection laws to claim that the physician defrauded them. This exposes the physician to punitive damages and other uninsured risks.
Physician advertising is regulated by state law as well as by the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) under provisions of the Food, Drug, and Cosmetic Act and the Federal Trade Commission Act (FTCA). The American Academy of Ophthalmology (AAO) and the American Society of Cataract and Refractive Surgery (ASCRS) have issued guidelines to advise their members on relevant ethical and professional standards.
Advertising “includes any oral or written communication to the public made by or on behalf of an ophthalmologist that is intended to directly or indirectly request or encourage the use of the ophthalmologist’s professional medical services … for reimbursement” (ASCRS Guidelines). These guidelines therefore apply to print, radio, and television advertisements as well as to informational brochures, seminars, videos, and the Internet.
The FTCA prohibits deceptive or unfair practices related to commerce and “prohibits the dissemination of any false advertisement to induce the purchase of any food, drug, or device.” The FTCA and the professional guidelines state unequivocally that advertising for medical and surgical services must be truthful and accurate. It cannot be deceptive or misleading because of (1) a failure to disclose materials facts, or (2) an inability to substantiate claims – for efficacy, safety, permanence, predictability, success, or lack of pain – made explicitly or implicitly by the advertisement. It must balance the promotion of the benefits with a disclosure of the risks and be consistent with material included in the informed consent discussion and documents.
Lack of Informed Consent Allegations
When not carefully crafted, advertising runs the risk of overstating the possible benefits of a procedure and potentially misleading patients into agreeing to undergo surgery without fully understanding or appreciating the consequences and alternatives.
In a sense, an advertisement becomes a ghost-like appendage to boiler-plate informed consent forms. If an advertisement overstates the benefits, misrepresents any facts, or conflicts with other consent documentation or patient education material, it can potentially make a jury believe the physician may have overstepped the line of ethical propriety by creating unrealistic patient expectations. Legally, such a scenario might allow a jury to conclude the patient was not given a full and fair disclosure of the information needed to make a truly informed decision.
Punitive Damages and Other Uninsured Risks
Another pitfall for the ophthalmologist who markets medical services are state laws that may allow the plaintiff to ask for punitive damages, which could double or treble the amount of money awarded to the patient by the jury. Physicians should be particularly concerned about such allegations since most professional liability insurance policies, including OMIC’s, do not pay for such damages.
OMIC’s underwriting guidelines state that advertisements and marketing materials must not be misleading, false, or deceptive and must not make statements that guarantee results or cause unrealistic expectations. In addition, insureds are required to abide by FDA- and FTC-mandated guidelines and state law. OMIC has specific policy language limiting its professional liability coverage to defense costs for claims related to misleading advertisements. No payment of indemnity will be made.
Therefore, if a plaintiff is alleging medical malpractice and has an added allegation of fraud, your OMIC policy will provide defense for both the allegation of malpractice and fraud but would limit any indemnity payment to awards related to the medical malpractice allegation of the lawsuit.
2021: Updated advertising medical services
Advance Directives and Surrogate Decision Makers
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Fall 2010
A policyholder called for advice about a mentally handicapped patient who resided in a state-run home. As the patient had never had decision-making capacity, power of attorney (POA) for medical decisions had been granted to a relative. The relative was now 90 years old, lived in another state, and was no longer able to travel. Meanwhile, the patient had developed visually significant cataracts that, given his disability, were having a profound impact on his ability to take care of himself and participate in activities of daily living.
Q A state representative accompanied the patient and said the state is applying for guardianship. What is involved? Do I have to wait until this process is complete?
A This patient has been determined by a judge to be incompetent to make medical decisions. While it is likely that a judge will approve the state’s application to assume POA duties, the state does not currently have the authority to make medical decisions on the patient’s behalf. However, this patient would benefit from prompt surgery, so waiting is not advisable either. Arrange a conference call with the patient, the relative with the authority to make medical decisions, the state’s representative, and someone from the ambulatory surgery center where the procedure will be performed. If the relative and state’s representative agree that the surgery is appropriate, and the ASC is comfortable with the consent process, obtain the signature of the relative and proof of POA status, document the conference call, and proceed with surgery.
Q I’m on call and have a patient who is unconscious but needs repair of a ruptured open globe. May I proceed without consent?
A Possibly. Quickly check to see if the patient has an advance directive in his or her belongings or in the medical record. Advance directives address the kinds of decisions a patient would like someone to make if he or she is unable to participate in a consent discussion. If there is no available advance directive or person with POA, and you feel the patient requires emergent treatment, ask the ER physician and/or OR nurse to determine the facility’s process for emergency exceptions to informed consent. Some hospitals require a second physician to agree that the care needs to be provided without delay. Both you and the second physician should document the need for emergent treatment and attempts to reach the patient’s family. Direct a hospital staff member to continue attempts to contact a family member or friend, as consent for additional non-emergent treatment will need to be obtained from a surrogate.
Q How should I proceed if there is time to try to find a surrogate decision maker?
A The ideal surrogate is one who understands the patient’s health care values and goals and will respect them during the decision-making process. Each state has a system for determining who may act as the surrogate decision maker and ranks them in decreasing order of authority. The top two are usually the individual who has been granted POA in an advance directive or a legal guardian with POA for medical decisions. Next come spouses, adult children, parents, and adult siblings. Adult children and siblings who do not have POA are able to act as surrogates only if they are in agreement. Many hospitals ask members of an Ethics Committee for guidance when these family members have different opinions on whether to proceed with treatment.
Q Our ASC suspends “do not resuscitate” and advance directives during surgery. My patient is quite upset and insists that her wishes be honored. How should we proceed?
A Your patient brings up a difficult issue that most ASCs and ORs have not addressed, even though all ask patients if they have advance directives. While you could simply try to find an ASC that will honor the patient’s wishes, it would be worthwhile to discuss this problem with the facility’s leadership team. The American Society of Anesthesiologists (ASA) has stated that “automatic suspension of DNR orders… may not address a patient’s right to self-determination in a responsible and ethical manner.”1 Instead, the ASA suggests asking an anesthesiologist to review possible options with the patient. First, the patient may choose full resuscitation, thereby suspending DNR orders and other directives during anesthesia and the immediate postoperative period. Second, the patient could choose a limited attempt at resuscitation defined with regard to specific procedures. The anesthesiologist and surgeon would inform the patient of procedures that are essential to the success of the planned anesthesia and procedure. The patient consents to these but refuses any procedures that are not essential. Finally, the patient may opt for a limited resuscitation defined with regard to the patient’s goals and values. The patient and family, after a discussion with anesthesia, agree to allow the anesthesiologist to use professional judgment. Full resuscitation procedures will be used to manage adverse clinical events that are quickly and easily reversible. The patient will not be treated for conditions that are likely to result in permanent neurological impairment or unwanted dependence on life-sustaining technology.
Medical Record Corrections and Alternations
By Kimberly Wittchow, JD, OMIC Staff Attorney, and Anne M. Menke, RN, PhD, OMIC Risk Manager
The medical record serves many purposes: it promotes patient safety and continuity of care by providing a comprehensive account of the patient’s diagnosis and treatment, provides evidence that can be used to defend—or possibly assail— the ophthalmologist’s care during the course of a claim or lawsuit, serves as the basis for coding and billing decisions, and supports medical research. Entries in the medical record should be objective, signed (or initialed), and dated; subjective comments, speculation, blame, and references to incident reports, legal actions, attorneys, or risk management activities should not, therefore, be included.
Policyholders often learn of the importance of the medical record when they are notified of a claim. Faced with a potential lawsuit, a few are so worried that they are tempted to alter or add to their documentation. While it is never proper to alter records deceptively or fraudulently, there are times when you may need to make a correction or addition to a medical record. OMIC’s policy differentiates between these two circumstances to protect you when you make a legitimate change, but also to protect the rest of the policyholders and the company if you make an improper alteration. This article will elaborate on these differences.
Policy Terms
As with all of the terms and conditions of the policy, coverage is contingent upon insureds complying with section Viii.9.e of the policy, which states that: “the Insured must not create, alter, modify, or destroy medical records with the intent to defraud or deceive or otherwise misrepresent or conceal facts pertinent to any professional services incident or Claim.” In other words, records alterations that are not mere corrections are prohibited. Section Viii.9.e continues, however: “this does not preclude coverage where a proper correction or addendum to a medical record has been made, the original entry remains legible, and the correction or addendum is dated and initialed by the insured.”
Corrections to the Medical Record
It is common when documenting care to make “data entry errors.” Correcting these errors as soon as possible when they are discovered improves the accuracy of the medical record and promotes safe care. For example, after noting a new medication order he received over the telephone from the ophthalmologist, the technician realized he had written the wrong dosage in the chart. He crossed out the incorrect number once, making sure it was still legible. Over it, he noted the correct one and added his initials and the date.
Similarly, dictated reports such as operative notes and consultation letters should be reviewed and corrected as needed before being placed in the medical record or sent to referring physicians. Such corrections should always be related to ongoing care and made with the intention of contributing to that care. The former entry should always remain in the record; as a general rule, information should never be deleted. Corrections removed in time from the event, made after learning of poor outcomes or after receiving notice of a claim, are always subject to scrutiny and viewed as self-serving if not fraudulent, and should be avoided.
Addenda to the Medical Record
An addendum should be created when additional information not available at the time of documentation but necessary for ongoing care is received. For example, a surgeon dictated her operative report, noting the absence of complications during the cataract procedure. Minutes after completing the dictation, the nurse clearing out the instruments informed the surgeon that one of the sterility indicators had not changed, alerting the ophthalmologist that the instruments may not have been properly sterilized. After instructing the nurse to sequester the instruments, the physician met with the patient, explained the situation and the possible increased risk of endophthalmitis if the instruments weren’t sterile, advised the patient of symptoms to watch for and report, and later dictated an addendum to the operative report, in which she accurately noted the time sequence of events.
Addenda should begin with an explanation of why one is necessary. Designed to ensure that accurate and timely information is available to properly care for the patient, they should not be used to justify former decisions or actions. Just as with corrections, the timing and motivation behind the addendum will be carefully evaluated in the event of a claim.
When in doubt, contact our Risk Management Hotline for advice before correcting or adding to a record.
