Archive for November, 2009

Which Medical Records are Crucial to Evaluate a Medical Malpractice Claim? by Peter Berge Esq.

Monday, November 30th, 2009

Which medical records do you need to screen a case?

Which medical records do you need to screen a case?

Several factors should be considered by a plaintiff’s attorney when deciding which records to request while evaluating a potential medical malpractice claim. They include the likelihood that the attorney will pursue the case, the volume (and potential cost) of the records and the available resources (whether those of the attorney or the client) to pay the cost, and the nature of the information that will be required to establish the viability of the case. Be aware of any state-specific laws that regulate what the provider may charge to supply a copy of the chart.

When a specific deviation or a particular type of deviation is alleged or suspected, the reviewer must be familiar with the materials that will be needed to thoroughly assess the claim. If a failure to screen for colon cancer is alleged, for instance, the chart of the primary care physician may be sufficient to reveal the deviation and—if it contains reports from the surgeon and oncologist—to assess causation and injury as well. In cases of delayed diagnosis of breast cancer or negligence in interpretation of prenatal ultrasound studies, it is likely that original images of the diagnostic study in question (such as mammography, breast ultrasound or fetal ultrasound) will be required.

When in doubt, the reviewer should consult with the expert who will ultimately be asked to certify or otherwise assess the validity of the claim or the expected testifying expert or experts. The facts of each case will determine whether full certified copies of all records are needed, or whether abstracts may be sufficient. Full certified copies of medical records relating to where the alleged medical malpractice occurred are needed to complete an evaluation of the merits of a claim.

Another factor for plaintiff’s counsel to take into account is whether or not there is a short statute of limitations. When there remains less than six months to investigate a claim, it may be prudent to err on the side of a wider scope of record requests rather than requesting them piecemeal, except when the expected testifying expert is very clear about what would be necessary to provide a definitive opinion as to deviation and causation. A liability expert will have limited need to review voluminous medical records for care rendered after the care alleged to be negligent. A discharge summary may suffice.

A host of records may be relevant in a specific case. Depending on the circumstances of the claim the attorney should examine

• hospital, emergency room, or emergency center records where the injury was initially treated,
• emergency medical services records (ambulance or medical intensive care unit/MICU),
• hospital records that relate to treatment and surgery,
• records of physicians and specialists who examined or treated the plaintiff before and after the incident,
• outpatient imaging (x-rays, MRI scans, CT scans, and so forth),
• any outpatient labs where blood work or other tests (EMG, EKG, and so forth) were done,
• inpatient and outpatient rehabilitation records including physical therapy, occupational therapy, and so forth,
• outpatient pain treatment centers,
• the actual radiographs and reports that relate to the injury,
• the actual pathology specimens and reports that relate to the injury,
• billing records,
• visiting nurse home care records,
• mental health, substance abuse records and HIV records,
• autopsy report, and
• nursing home records.

Modified from Patricia Iyer and Jane Barone, “Obtaining and Organizing Medical Records”, and Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press
The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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When Do You Get Medical Records for a Potential Medical Malpractice Case? by Peter Berge Esq.

Wednesday, November 25th, 2009

Attorneys should think twice before ordering medical records

Attorneys should think twice before ordering medical records

Unless a potential client presents with medical records in hand, the plaintiff’s attorney’s office considering obtaining records needs to be aware of the investment in time, money, and space. HIPAA-compliant authorizations must be executed, requests sent (and often re-sent), and fees paid. Some healthcare providers are notoriously slow in responding to requests, which requires the law firm to expend additional resources to follow up. It is therefore inefficient to request records until the potential value of the claim has been assessed.

The point at which a plaintiff’s attorney should request medical records depends greatly on the experience and medical knowledge of the reviewer. The great majority of claims:

1. can be determined to be without merit,
2. present insurmountable difficulties in proving causation, or
3. suggest damages insufficient to justify litigation, all based on historical information provided by the potential client with no, or minimal, documentation at hand.

Therefore, a thorough assessment of the above factors should be made before considering requesting medical records.

Ideally, the client interview should reveal whether or not the allegations, if supported by records, would present an actionable claim, and the potential scope of damages. At that point, it is reasonable to request records. In fact, however, several scenarios may exist:

1. First, the initial evaluation presents facts so clear that the attorney feels confident that the case is likely to go forward.
2. Second, the information at hand sounds promising, but specific records are needed to determine the extent to which deviation or causation can be proven.
3. Finally, some cases appear to be a “long shot,” where it seems unlikely that the necessary elements will be proven, but the injury is so serious (and, proportionately, the damages so large) as to justify the investment in requesting and reviewing the records. The reviewer should keep these scenarios in mind when deciding the scope of the initial request for records.

Read more about establishing damages and claims of frivolous lawsuits.

Modified from Peter Berg′e, Esq, “Attorney Use of Medical Records in a Medical Malpractice Case”, Patricia Iyer and Barbara Levin (Editors), Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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Johns Hopkins: Doing it Right by Pat Iyer

Monday, November 23rd, 2009

Johns Hopkins in Baltimore

Johns Hopkins in Baltimore

After 22 years of working on medical and nursing malpractice cases, I’ve learned that that you should take every opportunity to stack the odds in your favor.

My husband’s Medicare card permits him to get medical care anywhere in the country. (For those of you younger than 65, remember the days of free choice when you could select any doctor and see any specialist you wished without a referral? If you live long enough to get Medicare, you’ll get that choice again.) Given that he could have a triple bypass operation anywhere in the country, we choose Johns Hopkins in Baltimore for his surgery on September 23. Johns Hopkins has been identified as the number one hospital for the 19th consecutive time.

This is what I observed from my patient safety/standard of care seat/spouse sea:

Communication
We received clear explanations from Johns Hopkins staff of what to expect during the preoperative, intraoperative, and postoperative period. I received an hourly call from either the surgical waiting room receptionist or the operating room nurse while Raj underwent his 4 hour long surgery. The calls gave me an update on what part of the surgery was being done at that time. (The cardiac surgeon had previously assured me –without me asking- that he would perform the operation, not his residents or interns.) After the surgery, the cardiac surgeon found me to discuss the triple bypass and to tell me where to position myself so I could see my husband as he was wheeled out of the OR and into the ICU. I knew what to expect- a brief visit in the ICU after they settled him in, and removal of the ventilator by 8 PM that night.

Attentive communication was available electronically as well. Both before and after surgery, he has had ready access to his doctors who promptly responded to his emails.

Integration of best practices
My husband received two packages of Chlorhexidine soaked washcloths to use to clean his skin the night before and the morning of the surgery. (From having researched IV catheter related infections for programs I teach to clinical staff and risk managers, I knew Chlorhexidine reduces the risk of infection when used prior to insertion of an IV, as well as for daily care of an IV site.) Each package had a sticker which we peeled off and applied to a paper that we handed to the OR staff the morning of surgery. They used this system to verify the patient followed the instruction.

Many facilities struggle with the issue of getting people to wash their hands before and after patient contact. JH was clearly aware of this issue and reinforced the hand washing message. The OR nurse handed me a sheet explaining my need to wash hands when I visited my husband. The hallways of the hospitals were filled with posters about hand washing. Skin cleaning solutions were dispended from canisters outside of each unit to remind people to clean their hands before entering the unit. (I compared this with another hospital’s emergency room I visited in 2008 which had only one sink to serve 30 bays.)

Technology
The staff used computers to document at the bedside. After surgery Raj had a drain in his leg where his vein had been removed, two chest tubes, pacemaker wires in his heart, cardiac monitor leads, a jugular intravenous line in his neck, an arterial line in his wrist, and a Foley catheter in his bladder. He got out of bed the next day and did well. His chest incision was glued together, which meant that he did not have to undergo the painful removal of sutures. After he got home Raj’s local cardiologist admired his incision.

Efficiency and customer service
From the moment of the first encounters with the hospital staff, we knew what to expect and events moved according to schedule. Yet, there was not an impersonal feel to the care. Efficiency and organization prevailed. I’ve noticed this on other visits to the hospital. The walls in the outpatient areas are painted different colors, so it is easy for the staff to give directions such as “Go to the desk by the green wall.” There is a desk next to the elevator on each floor containing outpatient departments. A person is specifically assigned to help a person find the right department. The hospital staff clearly understands customer service.

Some examples:
The day before Raj went home after surgery, I heated up water in the microwave for his tea. I lost my grip on the Styrofoam cup as I removed it from a microwave that was over my head. The scalding water spilled over my hands and left second degree burns on my right hand. (I now know what it means when I read medical records that quote patients having a “burning pain”.) The intense pain lasted for hours. The staff supplied me with ice packs and ice and offered to take me to the emergency department, which I declined.The stoic traits took over.

After Raj got home and his pain medication was getting low, the staff Fed Exed him a prescription so he could get his medication renewed.

Perhaps the most touching example of customer service occurred when we went back for a postoperative check. Raj needed a chest x-ray. I sat on a low hard bench in the radiology department using my laptop computer while he had a chest x-ray. An employee of the radiology department came over to me and said, “You look uncomfortable. There is a soft chair with a good light and an outlet around the corner. Would you like me to help you move your things?”

Johns Hopkins does it right.

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Saying “NO” by Guest Author Natalie Gahrmann

Wednesday, November 18th, 2009

Just say "no"In all the years I’ve been operating my own business (since 1997) one thing that’s been a consistent challenge for my coaching clients and audiences is saying no. I recently presented an updated program on Boundary-Setting and, of course, once again we tackled the issues around saying no. As a result, I’ve revised an article I was working on so that I can share it with audience members. Here I share part of it with you. If you’d like the complete article, please email me at natalie@theprioritypro.com and ask for the “Saying No” article.

Saying “no” enables you to say “yes” to what matters most in your life.

“No” is one the most powerful two-letter words in the English language! However, saying “no” doesn’t come naturally for most people. We are conditioned to say “yes”, be agreeable and easy to work with. If you’re one of those people who normally says “yes” when asked to do something or take responsibility for a new work project, sit on another school or church committee, become scout leader, be the baseball coach, or bake cookies for the local fundraiser or anything that will likely require more time than you realistically have available, than you need to first understand why you are prone to say yes so quickly and then learn more effective ways to say no.

We typically say yes because we:
…are afraid to say no;
…want to be liked;
…need to feel accepted;
…desire to please others;
…don’t want to hurt someone else’s feelings;
…feel guilty when we say no;
…believe we can “do it all”.

If any of the reasons above describe you, saying no will undoubtedly make you feel uncomfortable or inadequate. There may be other reasons in addition to those listed, so be sure to recognize what prompts you to say yes, or avoid saying no. When you begin feeling totally overwhelmed, exhausted, resentful, and taken advantage of your attitude and productivity will likely suffer. If your life is overrun with responsibilities, jobs and commitments there’s little time left for your own tasks, fun and relaxation. One way to pare down your schedule is to get good at saying no to new commitments.

If you want more than ten super techniques to help you say no, remember to email me at natalie@theprioritypro.com!

Saying no helps reduce stress levels and gives you time for what’s really important. Even though it may be difficult, at some point you need to stand your own ground and look out for yourself, because no one else is going to look out for you if you don’t! Regardless of why you choose to say no, the keys to declining requests include:
+ maintain eye contact;
+ be firm, honest direct and convincing;
+ keep your explanation simple and succinct;
+ use a sympathetic but firm tone;
+ repeat your statement, change the subject or walk away, if necessary;
+ and, avoid making excuses (especially lengthy ones!).

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4 More Tips to Boost Sales by Guest Author Caryn Kopp

Monday, November 16th, 2009

guyonphonesm1. Look through your files and make a list of prospect decision-makers you’ve met, but have not closed sales with. Call to schedule meetings to discuss what is new since you last spoke, and whether there is an opportunity to work together now. Projects can come off hold and prospects can misplace your contact information. Make the most of the time you already invested in developing business. Stay in touch and be top-of-mind so when the dollars are on the table, you will be there to collect.

2. Look through your pending proposals and identify 3 strategy ideas which will move each proposal closer to a close. Choose the best one for each and execute! Here are a few suggestions. You can email the decision maker a direct question, “I want to be sure I am providing you with the support you need. Is the proposal, as outlined, exactly what you are looking for?” Another idea is to contact your prospect via email or phone noting that you would like to stop in to discuss a slight adjustment to the current proposal which provides additional benefits. Or, perhaps you can discuss a new opportunity. These strategies will help elicit a response and move your sale toward a close. (HINT: Ask for a follow up date and time when the decision-maker initially asks you for the proposal. That is when the proposal is MOST important to your client/prospect. At that moment, securing a next step is easy. Trying to get someone back on the phone to discuss it later can be time consuming and sometimes futile.)

3. Half-day HOORAY! Make calls after 2 pm on the Friday before a holiday weekend, and you will reach those hard-to-reach decision-makers without their gatekeepers answering the phone. Office staff usually goes home at 2 pm, leaving your decision-maker at the desk, relaxed and ready for your call! Were you thinking of leaving early that day? So is your competition. Don’t miss this valuable opportunity!

4. Prospect Purge. Delete prospects that don’t belong on your list. If they are not “A’s”, “B’s” or “C’s”, they aren’t worth your valuable time. This is true for referrals, as well. Just because you were given a referral doesn’t mean you should call. Spend your time on prospects you WANT to do business with. Check against your criteria and move on if it doesn’t fit. This will streamline your new business efforts with less stress and more financial success!

See this for more ideas.

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So You Want to be Published: Tips From an Experienced Author by Pat Iyer

Wednesday, November 11th, 2009

typing On October 15, 2009, I was interviewed by Dick Bruso, the chair of the National Speakers Association Writers and Publishers Professional Expert Group, for a teleseminar. I have written, coauthored, or edited over 120 books, online courses, chapters, case studies and articles.

Here are my top ten tips for having an article published.
1. Think about the purpose of getting published. Is it to present yourself as an expert? Is it to obtain speaking opportunities? Is it to share knowledge with other colleagues? Is it for career advancement? What is motivating you? This motivation will help you stay focused as you work on an article.
2. Determine where you want to get published. There are opportunities to have articles published on ezine sites and in traditional print journals.
3. If you decide to target a print journal, study past issues. Look at the target market of the readership. Look at the length and style of the journal.
4. Determine the publisher’s guidelines for formatting the manuscript and follow them exactly. For example, they may specify length of manuscript, or not placing your name on certain pages so as to conceal your identity from a reviewer.
5. Pick a subject that really interests you. If the article is successful and achieves the outcomes you specified in point 1 above, you may be living with subject matter for a long time.
6. Develop an outline for your material from the sources you have gathered.
7. At the top of each source you have collected (articles, book chapters, printed internet sites), write the letter that corresponds with the point in the outline.
8. Gather all of the sources that deal with the first point on your outline. Write that section, then move onto the second point. Work your way through the sources.
9. Submit the article to the publisher, and wait for reactions. Peer reviewed journals will use reviewers to go through your submission and make recommendations for publishing or changing the content. Learn from their feedback and resubmit.
10. Don’t expect to get rich off any article submission fee that may be paid to you. The doors that open will be the reward.
Learn more

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Presentation v. Conversation by Guest Author Stephanie Scotti

Monday, November 9th, 2009

Why overcoming nerves may be as simple as a shift in perspective
Do you sometimes doubt your ability to present well? The truth is, there’s not much difference between a presentation and a conversation. A presentation is nothing more than a conversation on a larger scale – perhaps with more purpose, more clarity, and some preparation, but a conversation nonetheless.

You… shy?
I work out with a fantastic personal trainer. He comes across as smart, entertaining, perceptive and very motivating. (I actually look forward to our sessions!) I asked him recently if he ever thought about building his business by making presentations within companies that want to promote health and fitness to their employees. He looked at me as if I had just suggested we head to McDonald’s for a healthy snack. Turns out he’s petrified of public speaking.

How could someone who’s so great at conversation lack the confidence to talk to more than one person at a time? Too often, people fail to appreciate their own strengths or see a broader use for the things they do well.

What skills do you use?
Think about it. When you’re having a conversation – with a friend, colleague, spouse, about something serious or frivolous – you use the same skills that make people good presenters, without thinking about it consciously.

You use words to communicate your thoughts
You use a tone that matches the subject (light, heavy, funny, sad, etc.)
You make sure the person can hear you
You use your hands, body and facial expressions for emphasis
You look directly at who you’re talking to

Sounds like what you do when making a presentation, doesn’t it? Of course it does! Think about that the next time you doubt your abilities.

Expanding the conversation

Yes, there are of course some differences between having a conversation and giving a presentation:

Proximity: Generally you’re much closer to your “audience” when having a conversation.
Pace: Most presentations are given at a slower pace than when speaking to a friend.
Tools: Rarely do we have conversations that involve a microphone!
Structure: Conversations are generally much less structured in language and format than more formal presentations.

But upon close examination, the similarities far outweigh the differences.

With a slight shift in thinking, it’s easy to start viewing a presentation as an enlarged and directed conversation…one that you’ve had the time to practice and prepare for. As for my trainer, we had a conversation about it and now he’s starting to look at public speaking from a slightly different perspective.

If similar fears have been holding you back, maybe it’s time you shift your perspective.

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Why risk tampering with medical records? By Pat Iyer

Wednesday, November 4th, 2009

Altering medical records has huge consequences

Altering medical records has huge consequences

A physician gets a notice that he is being sued. He gives into the temptation to review his office records. He decides to change an entry to 1. More completely describe events 2. Make it look as if he did something that he did not. But it is way too late. The plaintiff attorney and her legal nurse consultant already have the record and spot the change when they receive a second set of medical records. A charge of spoliation of evidence is added to the suit.

What is the impact on the person who tampers with medical records?

1. Insurance coverage
A medical malpractice claim that includes an allegation of alteration of records may not be covered by a commercial professional or individual’s liability policy. The insurer may reserve its rights to not pay any judgment that might be entered against the provider. Institutional providers participating in self-insured trusts may have similar coverage limitations. Some states recognize a separate cause of action for alteration of medical records, whereas other states deal with it as a jury charge. If the provider admits that he or she has made the alteration, the policy may be completely voided, including coverage for the medical negligence, depending on the state law. An individual who has his or her own insurance policy may find the carrier refusing to renew the policy the following year after the insured was found to have altered records or on whose behalf a settlement was paid in a case involving alleged alterations.

2. Regulatory agencies and privileges
Some state regulatory or licensing boards may investigate the healthcare provider. Disciplinary action may follow. The healthcare system that has provided privileges to the healthcare provider may be reluctant to allow that individual to continue on the staff. Those who falsify medical records risk more than just the loss of a malpractice case. Medical boards have been known to suspend or revoke the licenses of healthcare professionals caught tampering with records. In January 2009, a physician in London lost his license to practice for a year after a disciplinary inquiry showed that he engaged in a sexual relationship with a patient, tampered with and or improperly caused inaccurate changes to be made in her records, and failed to keep accurate records. He also failed to record details of her visits, medical condition, and results of medical examinations, and failed to maintain patient confidentiality by improperly disclosing to his lover confidential information related to the care of two patients.

3. Shame and embarrassment
Loss of reputation, shame, guilt, and being exposed as a wrong doer can all have a profound impact on the individual who altered medical records. A British physician hid her error for 16 years before confessing. When she was 26-years-old and working as a junior physician, she made a medication error that resulted in the patient’s death within an hour. She changed her chart entry to make it appear she had prescribed a smaller dose of the medication than had been ordered. She was questioned by police and later gave evidence at an inquest but did not tell anyone what she had done. In 2001, she could not live with her guilt any longer and wrote a letter to the patient’s family confessing her mistake. After an investigation and a formal written warning, the General Medical Council decided to allow her to continue practicing.

4. Criminal/civil offenses
In many states, falsification of medical records is also a criminal offense punishable by fines and incarceration, see e.g., California Penal Code §471.5. The Healthcare Insurance Portability and Accountability Act was used to put a Pennsylvania nurse in prison who altered nursing home records.

Most healthcare providers who tamper with medical records have a mistaken belief that their actions cannot be detected. The guilt or fear of being found negligent swamps their good judgment.

Med League assists attorneys who suspect tampering with medical records by performing chronologies and timelines that identify discrepancies. Please note that our ethical codes prohibit us from working with people who have not yet retained an attorney.

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Hospital Professional Liability Claims on the Rise by Pat Iyer

Monday, November 2nd, 2009

A retained clamp is a never event

A retained clamp is a never event

This is from Business Insurance, October 20, 2009.

According to the 10th annual Hospital Professional Liability and Physician Liability Benchmark Analysis, the number of hospital professional liability claims is increasing and is expected to increase by 1% per year. The study, released by Aon Corp. and the American Society for Healthcare Risk Management, both based in Chicago, polled more than 1,500 facilities to examine trends in claims and loss costs related to hospital and physician professional liability. The study attributes the rise in claims to the economic downturn, less public sympathy toward health care providers, and a 2008 rule that prevents the Baltimore-based Centers for Medicare and Medicaid Services from reimbursing hospitals for certain errors known as “never events” because they are considered preventable and should never happen.

“Worsening economic conditions in 2008 may have influenced individuals to assert claims against hospital systems,” Erik Johnson, health care practice leader for Aon’s Actuarial and Analytics Practice and author of the analysis, said in a statement. The frequency of hospital liability claims had been decreasing for about a decade before this year, the study said. Claims severity, which includes indemnity and defense costs, is now projected to increase 4% per year. Hospital loss costs per occupied bed, which is a major part of the total cost of risk, is anticipated to rise 5% in 2010, according to the study.

One-quarter of all claims and about 24% of hospitals’ professional liability costs are connected to hospital-acquired conditions such as infections, medication errors, objects left in the body after surgery and pressure ulcers, the study said. The market for health care industry professional liability coverage likely will remain stable for the rest of the year, but pricing is expected to increase in 2010, Aon said.

Pat says:
The AON study points out that ¼ of claims are related to “never events”. The never events defined by CMS are deemed outcomes that should not occur. The unwillingness of public and private payors to pay for what is defined as bad care leading to a bad outcome puts financial teeth behind efforts to improve patient safety and care. The definition of these outcomes clarifies concepts of liability. It becomes easy for the medical malpractice attorney to argue that there was a deviation from the standard of care when such an outcome occurs. Who could argue that operating on the wrong limb is acceptable or that leaving a clamp behind is okay? The AON study is important in that it shows the shifting trends. Those in hospitals who are reluctant to implement change, or take a strong position with recalcitrant staff who don’t want to change, need to know that the financial consequences of unsafe patient care will continue. The AON study confirms what we see in the nursing and medical malpractice world-seriously injured people wanting answers to questions and for the system to change so that someone else is not hurt.

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