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In this issue:
Numbers
of Medical Malpractice Claims on the Decline, but Severity
Rises: New Study Released
Physician
Office Records: Are They Complete?
“I
did not know that you did that too!”: Med League's
most frequently requested services
Resistance
to Expert Fact Witness Role Decreasing
From
the President's Desk: What
did I say?
Numbers
of Medical Malpractice Claims on the Decline, but Severity
Rises: New Study Released
 A
study released in October 2005 by Aon and American Society
of Healthcare Risk Management reported on the frequency
and severity of medical malpractice claims. Based on 52,959
non-zero claims representing $4.5 billion of incurred loss
for ten accident years, the data represented 10 percent
of the hospital market ($1 billion of $10 billion) and 15
percent of the alternative (self insured) market ($1 billion
of $6.7 billion.) Both open and closed claims were studied.
Key findings of the study included:
•
Overall the frequency of claims against healthcare facilities
is decreasing. In 2004, there were 3 claims for each 100
acute care bed equivalents, down from 3.3 percent in 1999.
The analysts hypothesize that self-insured healthcare systems
have a greater financial incentive to reduce the cost of
risk, make investments to improve the quality of care, and
reduce medical errors. Consumer attitudes may also be changing
as result of the enormous media attention given to the physician
insurance crisis and how it relates to availability of healthcare
at the local level.
•
The frequency of claims against physicians was also declining,
based on data from the National Practitioner Data Bank.
The frequency of claims against physicians had dropped from
9.3 percent in 1999 to 8.1 percent in 2004.
•
Four states - Texas, Florida, California, and Pennsylvania
- all of which had some form of tort reform, led the frequency
decline.
•
The severity of institutional claims continues to grow from
a low of 102,000 to $172,000 in 2004. (This data excludes
settlements or awards yielding more than $2 million.)
•
Claims against physicians were projected to have a severity
of $146,000 in 2006. The severity per claim has remained
fairly constant over the last ten years.
•
The 2006 loss cost for each physician was projected to be
$12,000, up from $10,200 in 2004. Loss costs for physicians
have remained fairly constant since 1997, when the cost
was $11,200.
•
Based on trends, the loss cost per hospital bed for 2006
was $5,800, up from $2,900 in 1997.
•
Based on solid data, the loss costs were increasing in Tennessee,
North Carolina, Ohio, and Maryland.
•
Allocated loss adjustment expenses (defense legal fees)
were projected to represent 20 percent of the claim costs
in 2006.
•
Using ten years of data, public hospitals were found to
have the highest percentage of claims of more than $1 million,
with 39 percent of the exposure and 43.4 percent of the
total number of large loss counts. Specialty hospitals had
the least number of large loss claims.
References
AON/ASHRM
Hospital Professional Liability and Physician Liability
2005 Benchmark Analysis, released October 24, 2005. The
full study is available for purchase from American
Society of Healthcare Risk Management.
Med League
provides board certified physicians to screen
medical malpractice cases for merit, as well as locates
expert witnesses
for attorneys. Contact
us about how we can assist you with your claim.
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Physician
Office Records: Are They Complete?
 The
following article is modified from Starke, K. and Starke,
G. “Office-based Records”, in Iyer, P., Levin,
B., and Shea, M.A., (Editors) Medical
Legal Aspects of Medical Records, Tucson, Lawyers and
Judges Publishing Company, 2006.
Attorneys
often ask Med League to organize medical records for the
purposes of doing a medical summary or to send to an expert.
The question may arise: Are these records complete? There
are wide differences in how records are kept and supplied
to an attorney. Some physicians’ offices will yield
everything in the file, whereas others will decide what
the attorney (or patient) should receive. Knowing what should
be in the file enables Med League’s nurses to recognize
what is missing.
Office
records may span the lifetime of an individual, although
this is not common with today’s mobile society. Office
medical records are typically not as voluminous as hospital
or nursing home records. The method of organization for
the following sections is variable from office to office.
In addition, some physicians will keep laboratory, radiology,
and correspondence next to the corresponding office visit
note. The following list details components that may be
found within office records.
Initial intake form: This is a document
that is typically filled out by the patient and details
complaints and other illnesses. The intake form summarizes
current medications, allergies, past surgeries, previous
hospitalizations, prior illnesses, vaccination record, social
history, which includes employment, marital status, lifestyle
habits such as smoking, alcohol intake, seat belt usage,
exercise, the presence of advanced directives in place and
power of attorney. Also noted is family history including
the health status of parents and siblings or current illnesses
of these family members, and a check-off list of symptoms
previously or currently experienced.
Initial
history and physical: The physician performs a
detailed history and physical the first time the patient
is being seen.
Problem
list: Once the initial history is obtained, the
physician office will frequently make a separate and continually
updated list of medications, allergies, and vaccinations,
as well as a list of all chronic illnesses or conditions.
These are sometimes consolidated into one summary sheet
and kept highly visible on the left hand side of the patient
file as it is opened.
Physician
office notes of visits: Notes may be dictated and
transcribed, handwritten, documented in the form of reports
to a referring physician, or entered into an electronic
medical record. Data should include weight, blood pressure,
pulse, complaints, examination findings, diagnoses, and
treatment and plan for care, including prescriptions and
advice on when to return to the office. Physician assistants
and nurse practitioners may alternate with the physician
in seeing the patient and recording in the chart. Appointments
missed by the patient may be noted as “NS” (no
show), or “DNKA” (Did Not Keep Appointment.)
Laboratory,
radiology, EKG and other medical procedure results:
Test results should have some notation either on the test
report itself or within the physician office notes that
the results were reviewed by the physician, communicated
to the patient, and that follow-up was given to the patient,
if necessary, to further evaluate the results or monitor
the findings at a specific time interval. This can be accomplished
through a phone call, letter, or follow-up office visit.
Some physicians simply initial the test results. Routine
and normal results may be communicated to the patient by
the office staff following a specified office procedure.
Correspondence:
This section includes letters sent to and from the physician,
consultation notes with other physicians, outpatient services
such as physical therapy, and letters sent to or received
from the patient. It should also include email messages
to and from the patient.
Copies
of hospital records: Included are discharge summaries,
histories and physicals, operative reports, and consultations
from other physicians. Copies of hospital records are not
always included and may be incomplete if present.
Home
health care records: The office records may include
reports from the agency providing care under the direction
of the office. Records typically include the plan of care
and discharge summaries.
Phone
call records. These are frequently noted before
or after office visits to maintain an easily readable time
sequence of events. Phone message slips may be taped or
stapled to office records.
Billing
records: These documents may or may not be kept
within the body of the medical record and should be compared
with the dates of the office visits to see if all visits
are documented in the form of notes.
Prescriptions:
On occasion, copies of prescriptions for medications or
therapeutic treatments will be found within records.
Return
to work or excuse from work/school notes, and disability
records: Copies of these forms are kept in the
records.
Med
League’s legal nurse consultants have been asked to
transcribe difficult to read physician handwriting and to
provide an analysis of records that look
altered. Contact
us for further information about these services. See
also our new products: Detection
of Tampering with Medical Records Toolkit for Plaintiff
Attorneys, Legal Nurse Consultants, and Paralegals,
and Detection
of Tampering with Medical Records Toolkit for Administrators,
Risk Managers, and Defense Attorneys.
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“I
did not know that you did that too!”
Med League's most frequently requested
services
 Screening
a medical malpractice case for merit with services provided
by our board certified physician reviewers to enable the
plaintiff attorney to select the most viable cases
Locating
nurse, physicians, pharmacists, physical therapists, physician
assistants, and others to serve as expert witnesses to save
you time in finding well-qualified people
Transcribing
healthcare provider handwriting to improve understanding
of the content of medical records
Developing
comprehensive summaries of medical records to effectively
communicate to a mediator or jury the details of symptoms
and treatment, and preparing medical summaries and chronologies
to encapsulate the essential details of a case
Identifying
key pieces of information such as blood alcohol levels or
mental competency at the time a will was signed to help
determine legal issues
Assisting
in the preparation of medical illustrations and timelines
to use to communicate with the mediator or jury
See
our Services
section for more information.
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Resistance
to Expert Fact Witness Role Decreasing
 The
decision by Judge Sabatino in Trenton, NJ in May 2002 in
the Heinzerling case has in my experience reduced the objections
to the use of a nurse to explain medical records. In Heinzerling,
which was ultimately settled, a nurse prepared a report
to explain the months of treatment a patient received following
a delayed diagnosis of lung cancer. After the defense filed
a brief to exclude the report of the nurse, Judge Sabatino
determined that it was acceptable to use a nurse to conveniently
and effectively explain medical records. Gerald Stockman
was the attorney in this case.
Although
I was not the nurse in this case, I have been providing
this service since the early 1990s, and have testified in
New Jersey and Pennsylvania in this capacity. Most recently,
in Richemond v. Electrolux Home Products, Inc,
an Essex County jury awarded $5 million to two toddlers
who were burned when a pot of boiling water landed on them.
My role involved explaining the medical records and the
details of burn treatment to the jury. One of the children
was horribly disfigured by the incident with burns on her
scalp, shoulders, and back. Other portions of her body were
used for skin grafting donor sites. This was the 10th in
the top 20 personal injury awards of the year, according
to New Jersey Law Journal, September 19, 2005. The attorney
was Kenneth Cohen of Jacoby and Meyers.
In
a trial held in the electronic courtroom in New Brunwick,
NJ in September, 2005, the judge was fully supportive of
my role in explaining the medical treatment and responses
of William Levine, a man who was hit by a car. Mr. Levine
lived for about 21 days after the injury. My testimony was
augmented by Powerpoint slides created from the exhibits
in my report. The majority of the testimony focused on the
first portion of his admission when he was alert, talking,
and aware of his injuries before he was sedated to reduce
his awareness. Although the jury found that the defendant
was negligent, they did not find that the negligence was
the proximate cause of the patient’s injuries. This
case was tried by Morris Brown and Michael Barrett of Wilentz
Goldman and Spitzer.
In
a workplace accident case, Hector Valentin was a new employee
who was pulled face first into a lathe. The impact crushed
portions of his forehead and face and removed his eye. Hector
suffered brain trauma, emotional scars, and disfigurement.
His tendency to form keloid scars meant that reconstructive
plastic surgery was not effective in erasing the effects
of the trauma. My report included scanned photos of the
patient, and a summary of the voluminous medical records
generated during the course of his acute care admission
and subsequent rehabilitation stay. The case was settled
by Marc Saperstein of Davis, Saperstein, and Salomon for
$4 million.
Use
of a nurse to explain medical records is effective when
records are voluminous and the injuries are significant.
The report may incorporate timelines, medical illustrations
of injuries, lists of major problems, graphics showing medication
that was required, scanned portions of medical records,
and other exhibits. This presentation uncovers the information
in the medical record in a way that helps the layperson
understand what happened to the patient. 
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From
the President's Desk: What
did I say?
The Joint Commission for the Accreditation of Healthcare
Organizations has found that a deficit in communication
is the number one reason medical errors are made. Treatments
are missed, steps are omitted, wrong operations are performed,
orders are heard incorrectly, and patients are misidentified
or misunderstood. Distractions, lapses, accents, noise,
fatigue, stress- all play a role in communication barriers.
I often say that one of the hardest aspects of life is delivering
and receiving accurate communication. Communication barriers
affect trial attorneys in their roles from the moment a
client is first seen to the time the jury delivers their
verdict, and beyond.
What
can you do to improve communication at the office? Consider
these ten suggestions.
1.
Recognize that we talk at 125 words per minute, but can
listen at 900 words per minute. Active listening requires
us to concentrate and not use the excess time to think of
other things.
2. Hold
discussions in an environment that is as quiet and non-distracting
as possible. Close the door to your office, hold calls,
and focus on the person or people in front of you.
3. Speak
the same language as your listener. Use examples and words
that will be easily understood by your listener. While this
is readily understood as a skill needed when communicating
with the jury, it is equally valuable in the office.
4. Acknowledge
the role of intimidation in communication. Your ability
to receive another’s message is affected by how you
feel about that person and his or her authority. Similarly,
your employees must feel comfortable and respected by you
in order to hear your messages. A hierarchical, autocratic
management style shuts down communication.
5. Time
constraints affect our ability to receive information. Being
rushed and feeling out of control and pressured leads to
errors in communication and performance. Checklists that
are followed in these situations help to ensure that errors
are not made. For example, have a checklist that directs
what needs to be taken to a mediation or deposition so critical
documents are available.
6. Assign
a team leader to a project. One person should coordinate
all of the steps needed to complete the assignment. For
example, if you are redesigning your marketing campaign,
make one person in charge.
7. Design
structures to deal with handoffs or the turning over of
responsibility for a file to another person. What information
needs to be conveyed to the person who is accepting the
responsibility? For example, when the associate is sent
to attend a deposition, what needs to be understood?
8. Be
aware that lack of communication, or a withdrawal from another
person may be interpreted as a lack of interest, concern,
knowledge, leadership, or respect.
9. Periodically
ask the listener to rephrase or repeat what you’ve
said to ensure that the message has been understood. Some
people will outwardly indicate they understand, while inwardly
feeling confused about the message.
10.
Hold regular staff meetings to discuss plans, performance,
and problems. At Med League, we start each day in a brief
session. We prioritize the activities for the day, discuss
any systems issues, and keep focused on long term projects,
such as getting ready for an exhibit or seminar. This daily
planning session has reduced interruptions over the course
of the day and last minute rushes and has improved our communication.
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