Washington Healthcare Access Alliance September 20, 2013 – Port Angeles, WA

1. Washington Healthcare Access AllianceSeptember 20, 2013 – Port Angeles, WA Understanding Professional Liability & Implementing Risk Management Presented by: Maggie Provine, Account Executive Cathy Reunanen, ARM, CPHRM, Sr. Healthcare Risk Management Consultant

2. What we’ll cover today • A little bit about Physicians Insurance and why we are here • Medical professional liability • Risk management essentials • Confidentiality of protected health information (PHI)

3. Physicians Insurance – who we are & why you might need us • History • Since 1982 • NW based mutual company • Physician owned & directed • More than 6,900 physicians, clinics, and hospitals in Oregon, Washington, and Idaho • Largest insurer of private practice physicians in the Pacific Northwest • Practicing physicians are on the Board of Directors & on all committees

4. What Physicians Insurance provides • Claims • Risk management • Sales, marketing, customer support • Agency

5. Volunteer providers & MPL coverage • Volunteer Retired Provider Program (VRP) • Employed and volunteering • Be sure to verify that outside activities are covered • Hospital employed • Hospital may or may not extend coverage

6. Professional liability coverage • Claims-made coverage • Covered services & acts • We will cover you for bodily injury or property damage arising out of direct patient treatment. • Limits of liability $1 million/$5 million

7. Conditions of coverage VRP • Notify us of incidents that may lead to a claim or a notice of a claim or lawsuit. • Cooperate in all matters pertaining to this insurance.

8. Proposed entity coverage for WHAA • What is it? • Acts or omissions • Vicarious liability of non-treating provider • Vetting of the employees • Coverage is on a shared-limit basis for all clinics named as additional insureds • Covers supervision of non-employees

9. Legal elements of malpractice • Duty • Provider/patient relationship • Negligence • Breach in the standard of care • Injury to patient • Proximate cause • Relationship between alleged negligence and injury sustained

10. Claims and lawsuits • Claim: A verbal or written demand for compensation for an injury related to alleged negligence from medical treatment. • Lawsuit: A written demand for compensation for an injury related to alleged negligence from medical treatment filed with the courts.

11. Reporting a claim or lawsuit • Contact your insurer immediately. We have in-take specialists who will obtain all of the pertinent information, walk through the process, and answer all initial questions.

12. Common malpractice themes • Clinical judgment in diagnosis or treatment • Procedure technique • Diagnostic delay • Failure to follow-up • Communication with patient • Coordination of care • System issues

13. What else to report? • Bad outcome: • Neurologic injury • Death • Blindness • Amputation/wrong procedure/wrong site • Delayed or missed diagnosis • Records request (out of ordinary) • It just doesn’t feel right . . .

14. Statute of limitations and repose • Effective in 2006, subject to some exceptions, a civil action for injury from health care must be commenced: • Within three years of the act causing injury • Within one year of the time that the patient discovered the injury or should have discovered the injury, whichever is later, but • No more than eight years after the act causing the injury

15. What happens when a claim is made? • Contact your carrier. If it ‘s Physicians Insurance, we will help you through the process. • A claims representative will review the circumstances and manage the claim. • Managing the claim may include settlement. • Settlement with insured’s consent • The insured must cooperate in the defense of the claim.

16. Evaluation of a claim • Medical records review • Plaintiff • Defendant • Inflammatory facts • Attorneys

17. What to expect when a claim is reported • Admonitions reviewed (what to do & not do) • Claims representative (CR) assigned case • Defense counsel assigned case if lawsuit • Litigation support arranged if a lawsuit or indicated • Acknowledgement letter confirming the above • CR and defense counsel will arrange to meet with the insured as soon as possible, generally after related records are received & reviewed.

18. Litigation support • Lawsuits can be traumatizing for a physician • Over 15 years ago, Physicians Insurance created a support program to help • The Director of Physician Affairs contacts the defendant at the start of a lawsuit. It is a protected and confidential way a physician defendant can deal with the emotional impact. • A supported defendant is a better self-advocate

19. Risk Management

20. Why patients become plaintiffs

21. The reasons patients sue • Dissatisfaction with treatment • Patient / family anger • Lack of communication • Health care bills • Provider attitude • Control or revenge

23. MD to JD - what they want you to know • A large percentage of cases are won or lost on the basis (quality) of the medical record • Document patient instructions and patient non-compliance • Alteration of the medical record WILL be discovered and is ALWAYS fatal to your defense Medical Economics April 4, 2008 Doctors who become lawyers: What they want you to know Mark Crane

24. MD to JD - what they want you to know • Document patient refusal of recommended care (informed refusal) • Labs, consults, x-rays and other studies must be reviewed and marked - have a system • Document provider/patient notification of study results and recommended follow-up Medical Economics April 4, 2008 Doctors who become lawyers: What they want you to know Mark Crane

25. Medical record documentation

26. Importance of documentation • Plan for patient care • Often the most important evidence allowing successful defense of a malpractice claim or lawsuit • Poor records are the most often cited reason for settlement • 35 to 40% of lawsuits are compromised by the medical record

27. Charting issues in malpractice • Illegible handwriting • Insufficient information • Medication issues • Incomplete or missing entries • Phone calls not charted

28. Charting issues in malpractice • Patient instructions not documented • Delayed charting • Patient noncompliance not charted • No documentation of informed consent and patient education

29. Rules of charting If it isn’t in the chart, it didn’t happen.

30. Clinical charting techniques • Entries should be comprehensive enough to demonstrate clinical rationale for treatment • Document so that in your absence a colleague could provide immediate, appropriate treatment with only your chart for assistance

31. Clinical charting techniques • Keep in mind that the medical record is an objective record of facts, impressions, clinical judgment and treatment • Avoid pejorative, insulting or overly subjective remarks

32. Good example It is better to document that “the patient reports taking 30 Tylenol #3’s per day” rather than “the patient is a drug abuser.”

33. Not so good example “Apparently your brother’s accusations are true. You are a malicious liar and a drug addict.”

34. Corrections and additions to the chart Never alter the existing record in an attempt to deceive - it will be discovered and it is always fatal to your defense!

35. Looks like a normal blood pressure

36. Or is it normal ? or high stage 2 170/90 ?

37. Good words of advice “A chart with poor documentation is always better than an altered chart. An altered chart is worse than having no chart.”

38. Electronic medical records

39. Electronic medical records • Benefits • Allows for more detailed and complete documentation • Has ability to prompt the provider regarding necessary follow-up • Capacity for preventive medicine screening • Provides audit trail

40. Electronic medical records • Downsides • Can interfere with provider/patient communication • Templates and preformatted text • Date and time stamp feature

41. Electronic discovery • The electronic medical record is discoverable • Courts generally grant production of the native files for forensic examination of the computer system • Metadata • Data about the data • Shows what was viewed, created, changed and when • iPhone and Blackberry

43. EMR and the electronic trail From a risk management perspective it is wise to interpret the “E” in EMR as “eternal”. Remember that all access, changes, edits, or modifications to the patient record are recorded.

44. Privacy & confidentiality

45. Privacy rules • Uniform Health Care Information Act • UHCIA (1991) • Health Insurance Portability and Accountability Act • HIPAA (2003) • Health Information Technology for Economic and Clinical Health Act • HITECH Act (2009) • Final Omnibus HIPAA Rule (2013)

46. HITECH Act – Final Omnibus HIPAA Rule • New provisions • Business associates to comply with HIPAA • Increased monetary penalties • Criminal penalties for individuals • Patients share in fines collected • Breach notification rules • Nondisclosure of self-pay services • Patients can request electronic copy of PHI

47. Need to know

48. Need to know versus curiosity • Headlines in the news • “Everett Clinic fires 13 for looking at patient records” • “3 Fired for Snooping on Electronic Health Records (EHR) of College Football Players” • “It Was Just Me Being Nosy,” Claims Snooping Employee in UCLA Medical Privacy Breach

49. Bottom line If you need to know the information to do your job, you can access the information. If you don’t, STAY AWAY FROM IT!

50. Physicians Insurance A Mutual Company Minors and disclosure • Parents may access those records regarding general medical care. • Parents may not access those records dealing with confidential treatment consented to by the minor unless the minor so authorizes.