Analysis of investigations and prosecutions by the New York State Office for Professional Medical Conduct (OPMC) and the New York State Office for Professional Discipline (OPD) reveals simple lessons that can reduce the risk that physicians and other licensed healthcare practitioners will become the subject of professional conduct investigation or prosecution.
Incorporating these lessons into your professional practice can also enhance the quality of care rendered to your patients and enhance your ability to defend against professional liability claims:
Document the patient's chief complaint(s) or reason for the visit clearly in the medical record. Unfortunately, it is very common to open a practitioner's medical record and to be unable to grasp the reason for the patient's visit from a review of the notes. Because the chief complaint or reason for the evaluation can vary from visit to visit, the documentation should be updated in the progress note for each visit. Documentation of the chief complaint or reason for the visit then becomes an organizing foundation for the evaluation of the patient and the corresponding medical record documentation including with respect to the appropriate history, physical examination, diagnostic tests, treatments, procedures and follow-up.
Request authorization from the patient to obtain copies of relevant medical records from the patient's other healthcare providers and maintain communication with these healthcare providers. Important information relevant to management of the patient can be obtained by adhering to this practice.
Document in a clear manner all medications prescribed by you including dosages, frequency, and mode of administration. Also document all medications prescribed by other healthcare providers as well as all non-prescription medications being taken by the patient. It is helpful for the medical record to distinguish which medications you prescribed so that you do not inadvertently make it appear that you have prescribed medications that have, in fact, been prescribed by other healthcare providers.
Licensing authorities and the third party payers expect you to be able to justify the medical necessity of the services you provide to patients. Document in the patient's medical record the clinical basis for all patient management decisions including diagnostic tests, treatments, and prescriptions you order. If you can't think of a reason, that should be a red flag to you.
Plans for patient follow-up should be clearly documented at the end of each note. If the patient has completed evaluation and treatment that should be documented. If a patient does not follow-up as recommended, you should reach out to the patient as appropriate by phone inquiries and letters. Be sure that all patient contacts respect the confidentiality of the patient as required by state and federal law (HIPAA). All attempts at patient contact should be clearly documented in the patient's medical record.
When ordering diagnostic tests, be sure to follow up on the results and to take action, as appropriate, with respect to any results of concern.
It is essential to document discussions with the patient, including those relating to informed consent. Obtain written informed consent when appropriate.
Be sure that you are able to document your current clinical competence with respect to all treatment rendered to patients. Avoid providing evaluation and treatment that you are not qualified to provide. Consider the use of consultants when appropriate and follow up on their reports.
Finally, please note that the list of issues that can cause practice risk management problems is exhaustive, continuously expanding and beyond the scope of this article. When you encounter a problem for which your peers can not provide a basic, time-tested and common sense solution, it may be appropriate to seek the guidance of experienced legal counsel.
Note: This article is written for educational purposes only and does not constitute legal advice. You should consult with your legal counsel prior to acting on any of the educational information provided herein.
Alan Lambert, MD, Esq. is an attorney whose practice is dedicated to healthcare law. Dr. Lambert is admitted to practice law in New York and he is of counsel to the law firm of Butzel, Long, a professional corporation. For more information call 212-905-1513 or visitwww.attorney-for-physicians.com.For information on how you can contribute to HealthLeaders Media online, please read our Editorial Guidelines.
Most physicians are good at following the creed laid out in the Hippocratic Oath to first, do no harm. But what comes second? For many physicians, that depends on the financial incentives that reward how they deliver care.
For instance, a recent study out of the University of California, Los Angeles, found that patient care performance ratings improved overall for 25 medical groups participating in pay-for-performance programs across California, but the success of the specific programs depended in large part on what was considered "performance."
When the incentives were aimed at addressing the quality of patient-clinician interactions, the overall experience of patient care tended to result in improved performance in three categories—physician communication, care coordination, and office staff interactions. However, when emphasis was placed on physician productivity, rather than clinical quality or patient experience, the improvements weren't as dramatic.
In fact, when financial incentives were paid directly to physicians—rather than being used more broadly—researchers found that putting too much emphasis on physician productivity actually had a negative impact on the experiences patients had when visiting their primary care provider.
In a way, this study is a microcosm of the larger healthcare reimbursement system. We've seen that paying physicians directly based on productivity can be harmful to the patient experience, because that's pretty much how the entire fee-for-service system works. In an essay in the New York Times, Sandeep Jauhar, MD, argues that hospital readmissions are a problem because physician revenue depends on keeping patients in the hospital.
He quoted a private practice internist as explaining the incentives like this: "I understand why hospitals want to cut down length-of-stay. But if I discharge a patient early, I don't get paid. It's O.K. if you have enough patients in the hospital, but if you don't, you sometimes have to drag out the stay. I don't like to do it, but sometimes you have to."
It is a callous and un-Hippocratic way of looking at medical care, but as Jauhar notes, "it is naïve to think that money cannot or should not be used to influence [physician] decisions."
President Obama has expressed a desire to change physician financial incentives—he was widely criticized when tried to explain the system with an example of a physician performing a tonsillectomy for financial reasons—but reform legislation has yet to address the issue head on.
Physician leaders don't have to wait for Washington to act. Many of the pay-for-performance programs like those studied by the UCLA researchers are happening at a more local level and being driven by private payers.
And many of the most direct financial incentives can be changed at the group level. Quite a few physician practices still pool revenues and allocate compensation to physicians based on elaborate formulas that are almost entirely driven by productivity (as measured by RVUs). Why not tweak the formulas to emphasize quality or patient experience?
Some already do this, but what's missing is a widespread change in practice compensation structures. Savvy leaders are making changes now because they perceive a top-down change coming relatively soon, and they want to be well-positioned in a new reimbursement system.
But finances aside, if its guiding principle really is to "first, do no harm," why would a practice still reward physicians for the quantity, rather than quality, of their care?
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A new report shows that the growth of overall online job listings in most employment sectors was sluggish in November, and fell slightly among healthcare practitioners, technicians, and support personnel.
The Conference Board's Help Wanted Online Data Series report, which tracks more than 1,000 online job boards across the United States, found that advertised vacancies for healthcare practitioners and technical occupations fell by 36,000 listings in November, for a total of 497,400. There were 533,300 such job vacancy listings in October, and 604,700 in November 2008.
For all industries, online job demand grew by 106,500 advertised vacancies in November. "Since April, when labor demand bottomed, monthly gains can only be described as sluggish," said Gad Levanon, senior economist at The Conference Board. "We have yet to see a significant increase in employers' demand for labor, and, until we see job openings pick up, it will be hard to bring down the unemployment rate. The gap between the number of unemployed and the number of advertised vacancies is about 12.3 million, with 4.8 unemployed for every online advertised vacancy."
Healthcare is a large and broad field, and the report noted the relative tightness of the labor market varies substantially from the highly specialized, highly skilled, and higher-paying practitioner and technical jobs to the lower-paying support occupations.
In October, for every unemployed person looking for work in a healthcare practitioner or technical occupation, such as occupational therapist or registered nurse, there were 3.7 advertised vacancies. The average wage in these occupations is $32.64/hour.
Demand for lower-paying healthcare support occupations fell by 500 listings in November—to 102,700. The average wage for healthcare support occupations, such as pharmacy aides or dental assistants, is $12.66/hour, while the number of unemployed outnumbers advertised vacancies three to one. "Demand for healthcare support workers has remained relatively steady throughout the recession although the number of unemployed seeking work in this field has risen as the recession deepened," the report stated.
The U.S. Bureau of Labor Statistics, which releases its employment statistics for November Friday, has shown that the healthcare sector is one of the few areas in the economy that has seen monthly job growth throughout the recession, although that growth has slowed considerably in 2009.
Payers have various rating, tiering, and ranking systems that attempt to assess a physician's performance against his or her peers. Some of these systems may be tied to reimbursement rates, but mostly they are used to steer patients to physicians in the higher-quality tier.
Often, say critics, the criteria on which the ratings are based are not disclosed to physicians in advance—when they could make changes to their practice. Moreover, many providers and consultants say the ratings are often incorrect, or at least imprecise. They also say the ratings may have more to do with cost than quality.
These rankings are an increasingly important part of marketing for health plans, so it's unlikely you will be able to opt out of them, says Jeffrey B. Milburn, Colorado Springs–based independent consultant at MGMA Health Care Con-sulting Group. But you can probably include provisions in your contract to help ensure accuracy. Milburn says such provisions should include:
The opportunity to review how the program operates. Ninety days would be ideal, but usually you can get 30–60 days notice, Milburn says.
Knowledge of the data being used. You want to be able to confirm that quality rankings are based on quality measures and not cost (efficiency) measures.
Knowledge of where data come from. You want something more detailed than someone saying, "It comes from claims."
Knowledge of the plan's methodology. How is the plan using the data?
Knowledge of the specific standards. Is the plan using a legitimate third-party organization?
Consideration of acuity. Too often, acuity isn't considered, Milburn says. You don't want the plan merely to acknowledge this; you want to see how it's factored in. Otherwise, you may be placed in a different tier because you have more severely ill patients.
An opportunity to appeal before the rankings are published. If you have concerns, you want them addressed before the rankings are made public.
If you think the data are incorrect, ask for a meeting. "I haven't had anyone turn me down. If the representative is reluctant to meet, appeal to the plan's medical director," says Milburn. If the plan is unwilling to give you that access, you may have a problem.
This article was adapted from one that originally appeared in the December 2009 issue ofThe Doctor's Office, a HealthLeaders Media publication.
Louis Cornacchia, III, MD, president and CEO of Doctations, discusses the advantages of Internet-based medical record systems over standard electronic health record systems. [Sponsored by Emdeon]
Doctors in Europe have been warned not to respond to flirtatious approaches from patients on social networking sites like Facebook. The United Kingdom's Medical Defence Union said it was aware of a number of cases where patients have attempted to proposition doctors by sending them an unsolicited message on Facebook or similar sites. The medical body said it would be "wholly inappropriate" to respond to a patient making an advance in such a way. A legal adivsor for the Defence Union said the pitfalls posed to doctors using social networking sites and inadvertently breaching patient confidentiality had already been well documented, but the dangers of patients using the sites to approach doctors were less well publicized.
There is a new iPhone application that allows radiologists to read scans from their phones. Using a $20 iPhone application called OsiriX, radiologists made correct diagnoses of appendicitis in 124 of 125 computed tomography scans, researchers reported.
The message relayed last month by the U.S. Preventive Services Task Force (USPSTF) about screening mammographies for women under 50 was misunderstood because of the way it was written, two of the group's members told a House panel on Wednesday.
As initially published at its Web site, the USPSTF stated in its new breast screening guideline that it "recommends against routine screening mammography in women aged 40 to 49 years." The panel's suggestion was bashed throughout the country for what was perceived as rationing care or putting costs before health.
But that wasn't quite the message it was trying to get across, Diana Petitti, MD, MPH, the USPSTF vice chair, told the House Energy and Commerce Health Subcommittee Wednesday. Instead, it should have emphasized the second sentence in that recommendation: "The decision to start regular biennial screening before the age of 50 should be an individual one and take patient context into account—including patient's values regarding specific benefits and harms," Pettiti said.
"That is, the task force is saying that screening at 40 should not be automatic nor should it be denied. Many doctors and many women—perhaps even most women will decide to have mammography screening at age 40. The task force supports those decisions," she said.
"The task force acknowledges that the language used to describe its 'C grade' recommendations about breast cancer screening for women 40 to 49 did not say what the task force meant to say. The task force communication was poor," she added. The "C grade" refers to the ranking by the task force that a patient can be informed of harms and benefits, but the patient is responsible for making the decision to be tested.
In his opening statement, Energy and Commerce Committee head Henry Waxman (D-CA) said that he did believe that the task force, in its review of its 2002 mammography guidelines, was trying "to take a fresh look of what has been learned over the last several years, and based upon that body of work, to provide its best professional judgment on what doctors and their patients should consider when they are making decisions about breast cancer screening."
"While that judgment may be contentious, I have no doubt it was driven by science and by the interpretation of science—and not by cost or insurance coverage or the ongoing health reform debate," he said.
Petitti agreed with Waxman. "Cost played no role in our recommendations," she told the panel.
The military system of healthcare may be one example of universal coverage for a population, but applied on a broader scale with variations of a so-called public option, it may not match what is now available for civilians. And it won't solve the nation's healthcare access problems.
Those conclusions came in a report from Mathematica Policy Research, a nonprofit research group, which says that based on a look at the military healthcare system, without strengthening primary care and public health initiatives, universal coverage alone won't solve access to care problems in the U.S.
"Even if current healthcare proposals focused on universal coverage, insurance reform, and cost control are successful, some of the most vexing problems in the current system are likely to persist," said Thomas Croghan, MD, the report's lead author and senior researcher at Mathematica. "Policymakers must continue to address important issues, such as racial and ethnic disparities, timely access to needed care, and dissatisfaction with care received."
The Department of Defense covers more than 9.5 million active duty, retiree, and dependent beneficiaries, and at the same time, provides military readiness for a much more acute need for those wounded in war. In addition to military hospitals and clinics, it provides care through 1,700 acute care civilian hospitals, 300,000 civilian physicians, and 60,000 pharmacies around the world.
The Mathematica paper raised three points:
1. The research team performed a cohort study of children enrolled in TRICARE Prime, which is similar to health maintenance organizations for civilians, during 2007 and analyzed claims for all inpatient outpatient and prescription drug services delivered by military or civilian providers. They measured differences in asthma prevalence and treatment, and asthma-related avoidable hospitalizations and non-injury emergency use for Hispanic, non-Hispanic white, and non-Hispanic African American children with asthma ages 2 to 4, 5 to 10 and 11 to 17.
The researchers said that while significant racial and ethnic disparities in child health exist, especially in the treatment of asthma, enrolling in the military's universal comprehensive coverage system "did not eliminate racial and ethnic disparities" for those military dependents children.
2. The Mathematica team conducted 20 focus groups with active duty dependents, retirees, and retiree dependents in four regions served by military treatment facilities to hear in the beneficiaries' own words the attitudes and beliefs about access to and delivery of services by the military health system.
They discovered that DOD beneficiaries had significantly lower satisfaction with their ability to get timely care when they needed it than civilians. And many expressed dissatisfaction with the narrow choice of providers available.
For example, one beneficiary said, "I was under the impression that I could select a doctor at my own will. And as long as they accepted TRICARE Prime, I was in. And that's not how it worked for me. I was given a list that I had to select off of ... a whole different process than, you know, pick the doctor of your liking. So I went down the list and called and a lot of them were not accepting new patients at the time. So I had to get in where I could."
The authors wrote, "In focus groups, active duty dependents, retirees, and retiree dependents noted that provider choice was a key component of their experiences. Many felt their options were severely limited, which significantly reduced their satisfaction."
3. The team found that "few direct care participants—those receiving care from military providers—felt they had a 'personal' doctor or that their care was being actively managed. They noted that because of rotations and deployments, primary care managers could in many instances be switched abruptly, sometimes without notice."
This was in contrast to their experiences with the civilian-based purchased care system, which they said provides better opportunities for long-term doctor-patient relationships and better access to physicians.
The ECRI Institute, an independent nonprofit company that evaluates medical devices and processes, has published its list of the 10 most dangerous technological hazards in healthcare.
The organization made its choice and prioritized the order "based on the likelihood and severity of the reports we've received over the past year, the recalls and other actions we've reviewed, and our continuing examination of the published literature," ECRI authors wrote in their introduction.
These 10 are "problems that we believe are the most crucial right now, and that hospitals should consider putting at the top of their to-do lists for keeping patients safe from technology-related risks."
1. Cross-contamination from flexible endoscopes. "Often in these cases, large numbers of patients must be notified of exposure to potentially contaminated endoscopic equipment."
The incidents are "almost always associated" with failure to follow sterilization guidelines or with malfunctioning equipment.
2. Alarm hazards. Alarms warn when a patient is at risk of injury or death because of an instrument malfunction. But "alarm issues are among the problems most frequently reported to ECRI Institute. The variety of affected equipment is considerable —reports involve patient monitoring equipment, ventilators, dialysis units, and many other devices."
The report suggests facilities look for alarm designs that limit false or excessive alarming, which can prompt caregivers to ignore true hazards. "We continue to learn of incidents in which staff unintentionally disable critical alarms by setting them far outside reasonable bounds. Low-saturation alarms on pulse oximetry monitors and low-minute volume or high-peak-volume alarms on ventilators are regular subjects of this sort of error."
3. Surgical fires. Each year, 550 to 650 surgical fires occur in the U.S., caused mostly by the combination of oxygen-rich atmosphere in or near the surgical site. New recommendations developed by ECRI with the Anesthesia Patient Safety Foundation suggest "open delivery of 100% oxygen should be discontinued during head, face, neck, and upper chest surgery."
4. CT radiation dose. With increasing use, doses "can pose significant cancer risk: In the United States alone, CT is thought to be responsible for about 6,000 additional cancers a year, roughly half of them fatal," the report said. According to the New England Journal of Medicine in August, "many CT studies expose patients to an unnecessary risk of cancer without a demonstrated benefit."
In one recent highly publicized case, brain perfusion CT scans at Cedars-Sinai Medical Center in California exposed 260 patients to radiation doses eight times normal. The ECRI report's authors believe "the focus on these hazards will only increase."
They advise facilities to make sure benefits of CT outweigh risks, minimize scanning protocols, make sure the scan has not already been done, and make sure technologists who perform the scans are specifically trained to do them and are registered with the American Registry of Radiologic Technologists.
5. Retained devices and unretrieved fragments. Devices all too frequently are left unknowingly inside patients after surgery. Device fragments, such as the tips of catheters or jaws of forceps, break away and remain inside patients, unbeknownst to the clinicians.
ECRI recommends visual inspection of devices prior to use and as soon as they are removed and suggests staff remain alert for significant resistance during removal.
6. Needlesticks and related injuries. "Accidental needlesticks and other sharps-related injuries keep happening," the authors wrote. To prevent these injuries, ensure that staff are trained and caution against making assumptions that a sharp is shielded just because the safety mechanism appears activated.
7. Problems with computerized equipment and systems. Convergence of medical and information technology can improve patient care. But "if systems and interfaces are poorly planned, implemented, or managed, they can threaten patient safety and can lead to inefficiencies, significant interruptions in operations, and uncaptured or lost revenue."
These technologies also carry a risk that patient images or data may be incorrectly transferred or processed, with the result being inaccurate matching of the patient to his or her data. According to the Joint Commission's report in December 2008, 25% of 176,409 medication errors in 2006 involved some aspect of computer technology.
8. Surgical stapler hazards. These staplers sometimes fail, resulting in prolonged surgery, serious tissue injury, and even death.
Some common problems include failure to position the stapler jaws on the tissue to be stapled, improper matching of stapler cartridge size to tissue thickness, and uneven distribution of the tissue in the stapler's jaws.
9. Ferromagnetic objects in the MR environment. Objects that can become magnetized in the presence of a magnetic field, such as that from an MRI machine, can turn wheelchairs, gas cylinders, and other objects into dangerous flying projectiles "hurtling with great force into the bore of the magnet." Additionally, implanted magnetic devices, such as aneurysm clips, can dangerously migrate because of the magnetic pull. Patients can be burned when currents are induced in electrically conductive materials.
The ECRI reported a Pennsylvania case in 2008 in which "there were 148 reports of problems related to inadequate screening that resulted in patients with implanted devices entering, or nearly entering, the MR scanner room."
As a precaution, providers should consider installing detectors to screen patients and equipment, update checklists and do not allow equipment into the MR room unless it has been determined to be safe.
10. Fiberoptic light-source burns. "Each year, ECRI Institute receives reports of burns to staff and patients resulting from use of these devices," according to the report. The two burn hazards most commonly reported are: Burns from light itself and burns from heated cable connections.
