Chart Review: How Not to Get Sued

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Chart Review How Not to Get Sued
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Disclosures

• I have a financial interest in and am Chief Legal
  Officer for PrimeCare Direct LLC.
• PrimeCare Direct is a private sector, for-profit
  limited liability company providing direct
  primary care and cost containment services to
  employers and other payors.

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Part 1

• A Little Perspective in an Age
• of Malpractice Hyperbole

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Pop Quiz Who is/was the worlds most successful
medico-legal plaintiff ever?

• Answer The Federal Government! Chart review
  isnt just about medical malpractice lawsuits.
• 2011 The Department of Justice announced a total
  of 4.1 BILLION in fraud abuse settlements
  and recoveries.
• 2012 The DOJ announced 4.2 BILLION.
• 2009-2012 The Feds have returned to taxpayers
  around 15 BILLION, up 6.7 BILLION over the
  prior four years.

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Alleging fraud abuse is an extremelylucrative
business
Compare the top 3 most profitable industries
against actions brought by the Department of
Justice (DOJ)
INDUSTRY 1 Network and Other Communications
Equipment 20.4 2 Internet Services and
Retailing 19.4 3 Pharmaceuticals 19.3 FYI
34 Health Care Medical Facilities DOJ For
every dollar spent by the DOJ 2011, seven were
recovered from providers.
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What was the national total for all med-mal
payouts in 2011?
Answer 3.1 Billion. The Feds have everyone beat
by over a billion dollars.
What was the total in Utah?
Answer 26,655,500
What was the average Utah pay-out?
Answer 256,303
Source Kaiser Family Foundation,
2011 http//www.statehealthfacts.org
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Last Question Whats worth more, a med-mal
dollar or a fraud abuse dollar?
Answer A fraud abuse dollar Fraud and Abuse
payouts Med-Mal payouts come out
of your pocket are frequently
insured 4.2 billion
3.1 billion
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Beware Public Sector Chart Reviews
Tip 1 Everyone (right down to the solo
practitioner) should have a written compliance
plan. Tip 2 That written plan should be
well-worn. Shrink wrap is not your friend in an
audit situation. Tip 3 It is simply no longer
true that the Feds only go after big guys
(hospital systems, etc.). Tip 4 Dont think
lack of bad intent is a defense (e.g., the
Reverse False Claim). Tip 5 Fear the
disgruntled employee as much as you fear the
disgruntled or grieving patient/family. Qui tam
actions can be VERY profitable for the
whistleblower.
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PART 2Chart Review and Malpractice Risk
Management 20 tips
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First a Few Stats

• About 93 of all medical malpractice cases are
  resolved before trial (U.S. Bureau of Justice
  Statistics).
• Average injured patient waits 16.5 months before
  filing a lawsuit. It takes an average of 27.5
  months to reach resolution.
• Most common allegation for in-patient cases
  surgical error (34)
• Most common allegation or out-patient cases
  diagnosis (46)
• NEJM 2006 Obstetrician-gynecologists most
  frequently sued physicians (19), general
  surgeons (17) and primary care physicians (16).

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To Err (a lot) is Human

• IOM releases report To Err is Human (2000)
• Estimates 44,000 to 98,000 unnecessary deaths
  each year due to medical error
• Estimated 1,000,000 excess injuries due to
  medical error
• More Americans are killed in US hospitals every 6
  months than died in the entire Vietnam War
• Death rate equivalent to three jumbo jet
  crashing every two days
• Note Numbers were based on the MPS and
  extrapolated to the general population

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10 years later . . .

• 2008 National Healthcare Quality Report (AHRQ,
  2009) from the Agency for Healthcare Research and
  Quality (AHRQ)
• The report noted that patient safety had actually
  gotten worse instead of better.
• One in seven hospitalized Medicare patients
  experienced one or more adverse events, and
  thousands of patients develop central-line-associa
  ted blood stream infections each year.

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Views of the Public on Medical Errors

• Percentage of adults experiencing an error
• Medication or medical error
• 22
• Mistake at the physicians office or hospital
• 10
• Wrong medication or dose
• 16
• Source- The Commonwealth Fund, 2001

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Nine Percent of Physicians Account for Fifty
Percent of the Complaints
of Complaints
Source Hickson, 2002
of Physicians
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The Vast Majority of Injuries Do Not Result in a
Claim
27,179 adverse events due to negligence
415 malpractice claims (2)
26,764 with no malpractice claim (98)
14,180 with strong evidence of negligence
12,858 with disability
5396 with disability 6 mo (42)
7462 with disability lt 6 mo (58)
Source Localio, 1991
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Reasons Why People Sue Their Doctors

• Advised to sue by influential other 32
• Needed money 24
• Believed there was a cover-up 24
• Child would have no future 23
• Needed information 20
• Wanted revenge, license 19
• Communication-related motivations total 44

Percent Expressing Concern
Source - Hickson, 1992
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The Great Paradox
The medical chart is the single most important
component in providing continuity of care. The
medical chart is the single most important piece
of evidence in a medical malpractice action.
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The Golden Rule

• Tip 1 If you didnt write it down, you didnt
  do it.
• Plaintiffs lawyers AND juries usually believe the
  chart represents exactly what happened. The whole
  truth.
• Verbal testimony to the contrary almost never
  prevails.
• Your clear recollection almost never prevails.

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• Tip 2 Connect all dots. Dont leave smoking
  guns
• An ordered test, but no test results in the chart
• A lab value outside of range, but no explanation
• A medication prescribed, but never written off
  (verified)
• Avoid reading nurses notes at your own peril
• Tip 3 Notwithstanding the first 2 tips, treat
  the patient, not the chart.
• Providing appropriate care is a more effective
  defense than ordering every test under the sun.
• Defensive medicine sets you up for perjury You
  either lie that you ordered clinically
  unnecessary tests/services simply to protect
  yourself, or you admit your tainted motivation
  and lose credibility.

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• Tip 4 Use abbreviations at your peril.
• If you use abbreviations, make sure all medical
  providers know exactly what the abbreviation
  means (not just personnel in the same setting).
• You cannot assume you understand another
  providers abbreviation you cannot assume
  another provider understands yours
• When in doubt, pick up the phone
• Tip 5 Clearly document your prelim and
  differential diagnosis
• Document both what you did and why you did it.
• Document why you chose one modality over another.
• Surgeons ensure operative notes adequately
  explain your inter-operative findings and why you
  took specific actions/inactions

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• Tip 6 Document all discussions with other
  providers
• If youre a resident, this is the GOLDEN RULE
• Document discussions even if they do not occur in
  a setting where the chart is readily available
  (e.g., cafeteria, water cooler, your yacht,
  etc.).
• Tip 7 Document all discussions with patients
• Discussions regarding potential
  risks/complications are key
• Discussions regarding patient responsibilities
  are key
• ALWAYS document the presence of a witness (e.g.,
  nurse).
• Tip 8 Document phone conversations (is there a
  specific field in your EMR?)

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• Tip 9 Timing is important.
• Dont wait until the end of your shift to make
  chart entries
• Timely make all entries (or as timely as
  possible) not only date the entries, but enter
  the time as well.
• Make entries in chronological order and do NOT
  leave large spaces as someone may later enter a
  note out of chron order.
• Always dictate/enter discharge notes on the
  day/night of discharge.
• Tip 10 Your own observations only. But if you
  enter someone elses observations (e.g., spouse
  of patient) carefully document the source.
• Tip 11 Chart objectively, never subjectively.
  Patient stated she drank a bottle of tequila,
  not Patient drank a bottle of tequila.

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• Tip 12 No personal or derogatory statements.
• Yes Patients mother stated you are a freaking
  crazy!
• No Patients mother is a royal pain in the
  rectum.
• Tip 13 Print out (scan in) any emails/letters
  you write or receive regarding the case (as
  evidence of effective communication).
• Tip 14 ALWAYS back up paper or electronic files
  and assure the backups are readily accessible
  (remember the Golden Rule).

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• Tip 15 NEVER EVER alter a medical record.
• Paper Record Errors Draw a single line through
  the error, enter correction above/below and
  date/time.
• EMR Know the system and follow the rules.
• Tip 16 Conduct and clearly document a thorough
  P/E.
• Your notes should portray you as conscientious,
  detailed and professional.
• Understand that good P/E notes of a first
  encounter frequently either dissuade or persuade
  a med-mal attorney to move forward.
• Tip 17 Avoid using charts to indict others.
• Dont lay blame Psych consults office staff
  are morons. You may be starting an action into
  which you may be drawn.
• Never use words like incompetent, negligent,
  etc.

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• Tip 18 Pretend your 30th patient of the day is
  your first.
• Plaintiffs attorneys know full well youre
  overworked and they want to prove it.
• Dont let your level of detail slide towards the
  end of the day.
• Tip 19 Shes a patient, not a chief complaint.
• Create chart entries that dispel any allegation
  that you do not value your patients. Miss
  Cornblatt stated the hospital makes her feel like
  a number. I responded, . . . . and otherwise
  assured . . . .
• Document and respond to patients concerns to
  dispel any allegation that you do not take her
  concerns into consideration
• Tip 20 Complete and document follow-ups.
• You must be sure the patient received the
  diagnosis, result, etc.
• Create entries that dispel any allegation of
  abandonment.

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Part 3
6 Other Tactics for Avoiding Suit
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Tactic 1
KNOW THAT BEDSIDE MANNER MAY BE YOUR BEST
DEFENSE DONT LET YOUR PATIENT FEEL
DIMM Deserted Ignored Misunde
rstood Misled Studies show If they like
you, they wont likely sue you.
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Tactic 2

• WELCOME AND DOCUMENT INFORMATION FROM OTHER
  PROVIDERS AND STAFF
• Make liberal attempts to garner other opinions
  dispel any allegation that you are a lone,
  arrogant wolf with a god complex.
• Ask the attending and other members of the
  medical team if there is anything else you should
  know that might affect your consult or
  recommendation.
• Actually read intake forms and questionnaires
  (fertile ground for surgery-related lawsuits).

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Tactic 3

• FOLLOW UP TENACIOUSLY, EVEN AT THE RISK OF
  ANNOYING PATIENTS AND STAFF
• Understand that evidence of lack of
  follow-through is a plaintiff attorneys bread
  and butter.
• You/your staff MUST confirm every Rx prescribed
  is administered.
• You/your staff MUST confirm every time-sensitive
  test, procedure, lab value and radiographic study
  are, in fact, timely performed.
• Dont discharge or let the patient go until all
  orders are completed or explained away.

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Tactic 4

• DONT UNDERESTIMATE THE VALUE OF A THOROUGH
  CONSENTING PROCESS (NOT FORM)
• Include what the patient must expect
  post-procedure.
• Consider affirmatively asking the patient what
  she expects
• When you get to the form, underline/highlight
  elements that are important to the particular
  patient
• Employ witnesses, particularly where higher risk
  is expected
• Whenever possible, dont leave the consenting
  process until the last moment (e.g., pre-op) use
  an office setting where possible.

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Tactic 5

• CONSIDER THE VALUE OF THE MEDICAL APOLOGY BUT
  EMPLOY ONLY AFTER TRAINING AND COORDINATION
• Know the law
• Consider attending a medical apology lecture or
  seminar
• Dont leave your medical malpractice carrier out
  of the picture!
• Dont hang yourself using words like fault or
  cause

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Tactic 6

• DO WHATEVER YOU CAN TO LIVE WITH
• A SMALLER PATIENT PANEL
• Plaintiffs lawyers and juries wont give you a
  pass because youre busy and overworked.
• Studies show that the more time spent with
  patients the lower the incidence of med-mal
  claims
• PCPs Plaintiffs attorneys have read the studies
  that show a PCP with a patient pane of 2,500
  would have to work 21.7 hours per day to provide
  needed (recommended) care.

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Read
I KNOW YOUR BUSY BUT . . . Physician Protect
Thyself Alan G. Williams, J.D. Margol
Publishing, 2007 A very short, concise and
accessible risk management primer. 7 Simple Ways
NOT to Get Sued for Medical Malpractice
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Question I Couldnt Answer at the Time? Tad
Linn Tlinn_at_PrimeCareUtah.com [phone] cell