Cover Your Practice: Risk Management

If a lawyer walked into your practice, would he or she leave confident that you are “covered?” Or would he want to bar the door until things could be put in order?

Jayme Matchinski, an attorney with Hinshaw & Culbertson LLP in Chicago, Illinois has seen all manner of legal exposure in doctors’ offices. She says, “As physicians go about their daily practices, it is easy to neglect the ‘little’ things that may leave them vulnerable to liability…things such as proper documentation or taking enough time with a patient. Addressing these and other issues on the front end, however, can save you numerous headaches and expenses later on.”

The primary compliance issues, says Matchinski, are as follows: Medicare coverage and payment, billing and reimbursement, Stark Law – Stark III, Anti-Kickback Statute, HIPAA, and state regulations. “Medicare coverage and payment relate to the care provided by the doctor and the claim submitted by the doctor to Medicare for such care. The Stark Law may be triggered if the doctor (or his family member) has an ownership interest in an entity to which the doctor refers a patient for a designated health service, for example, an MRI, unless one of the Stark safe harbors are met so that such a referral is not deemed to be a prohibited referral under the Stark Law. The Anti-Kickback Statute prohibits any payment based upon volume or value of patient referrals. HIPAA requires doctors and other ‘covered entities’ to adhere to the HIPAA privacy and security standards to protect against the unauthorized disclosure of patients’ protected health information.”

And in order to stay in line with these compliance issues, it’s important to manage your risks.

But what exactly does “risk management” mean? Jayme Matchinski: “It is the reduction of adverse consequences. One of the most valuable ways of doing this is to communicate appropriately with patients. If there are important test results or information about a major procedure, diagnosis, or treatment option, the doctor should speak with the patient face to face, or at least phone him or her. If the patient is not able to talk to the doctor directly, he or she may be confused or possibly angry.”

Making Apologies

Two words you learned as a toddler might just save you from a trip to the courthouse. “A central aspect to proper patient communication is being able to say, ‘I’m sorry’ without defending or denying. Apologizing, always an art form, has gone beyond that realm into the legal arena. Most states have a statute on apology; in Illinois, for example, it’s on the books that apologizing is not an admission of guilt—nor is it admissible in court.”

In fact, ” states Matchinski, “nothing is as effective in reducing liability as a genuine apology. Because this is so important, you should practice what you are going to say before you offer the apology and document the discussion afterwards. When someone is debating about whether to file a suit, they think about how the doctor spoke with them. The fact is that people are less likely to sue a physician—even if he made a mistake—if there was good communication. While an apology isn’t failsafe, it can go a long way to ameliorating the situation. And medical facilities know that. To see examples of apology policies in institutions, look toward Johns Hopkins Hospital, Vanderbilt University School of Medicine, and the University of Michigan.

“I’m sorry you had to wait, I’m sorry the coffee wasn’t hot, etc.”…when exactly do you apologize? “Be ready to offer your regrets in the event of expected or unexpected complications, poor results, an error on the part of clerical staff, a surgical error and in the event of unintended consequences. And hopefully you genuinely care about the patient’s welfare…because that has to come through in the apology.”

Keeping It on the Record

And what about the patient’s “mirror”—the medical record? Matchinski says, “The patient’s record is not only a medical document—it’s a legal document as well. From the outset, it should be treated as such, with the proper attention to detail. Remember that everything noted with regard to the history and physical, diagnosis, social data, etc., is critical information that is not only used as the basis for payment claims but may be used in administrative or legal proceedings. For example, the patient’s employer might use it for workers compensation or disability claims.”

“Under the law, ” adds Matchinski, “you have a duty to maintain a complete and accurate record for each patient. Failure to do so leaves you exposed to liability under the Medical Practice Act, the Health Insurance Portability and Accountability Act (HIPAA), and the American Medical Association Principles of Ethics and Code of Professional Conduct.”

Those who got As in penmanship should consider writing their 5th grade teacher a “thank you” note. Says Matchinski, “Dotting your ‘i’s and crossing your ‘t’s wasn’t just important years ago…it’s one way to minimize liability when it comes to patient records. If you do not have neat handwriting, have the record typed. If it is necessary to correct something in the patient record, make sure no one uses ‘Wite-Out’ and ensure that they put their initials adjacent to the error. You can bet that if there are unexplained alterations in the record that this will be a red flag for the plaintiff’s attorney. With regard to notes made late, i.e., out of sequence, you should insert an asterisk where the note should have been.”

Matchinski, who conducted the risk management presentation at the 2009 AAOS conference, adds, “If you are not writing concisely, and are writing from an emotional standpoint, the plaintiff’s attorney may use this to discredit you, saying that you are biased against the patient. Always make your documentation with an eye toward how the chart might be used in the future.”

The biggest problem, ” underlines Matchinski, “is incomplete charts. Omissions are often the basis for litigation. A good litigator will look at the chart and notice, for example that the patient came five times, but there are only four documentation entries. Or the attorney may say, ‘Well, we know he had this procedure, but there is no documentation to that effect, despite the fact that they billed for it.’ You must include enough information to justify the diagnosis and warrant the treatment. And take note of your institution’s documentation deadline. Most practices mandate that notes must be done within 24 hours of patient contact.

And while Mrs. Jones’ name is on the file, she doesn’t own it. “In most cases the medical record is owned by the entity responsible for compiling and maintaining the record. This is part of the larger issue of who has the right to the patient’s information. The doctor has got to be well informed in order to release the information only to the appropriate parties. This can get dicey, when, for example, a minor is involved and the parents are separated or divorced. If they are in fact divorced, both parents have a right to information about the child. It can get heated, however, because the parent paying for the insurance may not want to grant this access to the other parent. Release of information is a particular area where you want to make sure your staff is well trained.”

“Consider the consequences, ” advises Matchinski, “of releasing information in a situation involving elder abuse, abuse or neglect of a child, a patient with AIDS, or a domestic violence situation. Under the law you very well could have an obligation as a healthcare provider to report some of these situations. Pick up the phone and call your attorney to be sure.”

If you decide to retire or sell the practice, what happens to the medical records? “With regard to destruction, retention or transfer of records, the fundamental issue is to ensure that you are in compliance with state and federal laws. What if you treat minors? In most states, the statute of limitation for retaining medical records is extended until the minor reaches majority age and becomes an adult. Medicare has a seven year requirement for retention of medical records, but the record retention requirements may be shorter for commercial insurance. I advise physicians to go with the longest time requirement for record retention to avoid losing records and information they may need down the road.”

So where to begin in assessing your exposure to risk? Jayme Matchinski advises,

Walk into your office one day as if you were a patient and see what’s going on. Is the receptionist helpful? Are there patient charts sitting out in the open? Look at your surroundings with fresh eyes and you may very well turn up some areas for improvement. The bottom line: think like a lawyer.