January 2012

Page 1

news and comment for the medical community

volume LXVIII / no. 1 January 2012

Discovery Issues Involving Electronic Health Records By Todd Bartos, Esq. This coming year will continue to present challenges for health care providers. The “lawsuit industry” continues to grow. Plaintiffs’ lawyers are increasingly turning to advertising on the web and via blogs and so-called “digital marketing” to try to get high value cases. Frequency and severity continue to rise nationally, and in California the plaintiffs’ bar is actively working to increase frequency and severity of claims. Consumers have long focused on the data available to them from friends, family and neighbors. Now, however, there is a growing trend of online transparency. Reviews posted on websites are indexed and searchable. There is a significant portion of the population that will use

INSIDE

• From the President 3 • Executive Report 5 • B-17 Checklists and Medicine in the USA 7 • 5010 Quick Reference Guide 9 • A Member Benefits Refresher 10 • High-Risk Issues Associated with Lawsuits 12 • Membership Update and Classifieds

18

this type of information in the future to make decisions regarding where to receive care and from whom. However, we are now seeing quality and safety data and information appear in lawsuits. For example, the IOM’s To Err is Human report has begun to appear in Complaints as a basis for a claim against an institution. In other words, lawyers have begun to argue that a failure to follow the recommendations in the article is per se negligence. They are, of course, wrong, but the message to the public is that there is a safety crisis and only lawyers can help. Electronic records add interesting elements to this changing environment. Electronic records are and will remain an important tool for improving safety and driving reimbursement in the next few years. They can, in different ways, reduce some clinical risks (e.g. drug interactions, screening and follow-up) while creating new risks (e.g., propagation of incorrect data, glitches). The analysis of new risk issues is beyond the scope of this article. Further, patient record systems require some basic employee (and employer) technical skills to ensure a smooth deployment, but more importantly there must be a consistent and pervasive effort by all involved to ensure that there is continuity of care and security of data. One need only look at the recent Sutter Health laptop theft to understand that a single device can hold millions of patient records and subject the institution to liability for loss of that data. Additionally, lawyers have realized the value of understanding the flow

of information within an integrated technological framework. For example, some law firms have hired in-house IT professionals whose only job is to assist them in discovery efforts related to data residing within EHR systems. They have purchased EHR systems and used them with mock data to find where the data is stored and what types of information is logged by the system beyond the clinical data. In other words, they are looking at metadata. Metadata is loosely defined as data about data. Every time a patient record is accessed, there is a log file containing information about who accessed the data, when it was accessed, for how long it was accessed, what if any additions or deletions were made and when the record was closed. It provides an electronic road map to the use of electronic data. In court, electronic data becomes an independent witness. Juries are now accustomed to believing that any information that is automatically tracked and then recorded is essentially infallible. The ability to contradict the time-line, as established by the metadata, is increasingly limited. There are certain instances when we can use this information offensively depending on the allegations in the case. Discovery of electronic health information involves both interrogatories and requests for production of documents. These traditional discovery tools are increasingly used to gain access to audit logs and other metadata repositories within systems. Moreover, a growing number of courts are permitting lawyers continued on page

14


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January 2012


from the P

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Do You Know the Value of Your Membership? By Gregory Lukaszewicz, MD SMCMA President

As SMCMA President, I have been involved in a number of conversations with association members, CMA staff, presidents from other county medical associations, public health officials and politicians. One thing that has come from these conversations is the many functions organized medicine plays. Though some members may disagree with the particular amount of emphasis placed on a particular political position or feel there is not enough focus on public health issues, the truth is the SMCMA, the CMA and AMA are the organizations that do attempt to represent all physicians as a group. But in addition to political, economic and public health advocacy role of organized medicine, the SMCMA provides many important tangible programs and direct benefits to our members. Listed below are just a few valuable services that you may not know about, most of which are free to our members. We have also provided a more detailed description of these and other services in A Member Benefits Refesher article on pages 10 and 11 of this newsletter.

collected through the survey can assist SMCMA members in establishing competitive levels of compensation and benefits for their medical practice staff. Physician-Patient Mediation - As part of the SMCMA peer review process, the Professional Relations, Medical Review & Advisory and Fee & Insurance Mediation Committees are able to mediate patient complaints and resolve a problem before it escalates into a referral to the Medical Board of California or it ends up in the courts as a lawsuit.

“...SMCMA provides

many important tangible programs and direct benefits to our members.”

Legislative Advocacy - At the local level, the SMCMA maintains relationships and works closely with local city, county, state and federal legislators. The SMCMA also serves as an important conduit of information between our members and the CMA and AMA which are in turn directly involved in influencing state and national political policy. Reimbursement Advocacy Assistance - SMCMA works directly with commercial and government payers to resolve reimbursement or other disputes on your behalf. Simply fill out a Reimbursement Advocacy Request form, located on the SMCMA.org website and fax it to the Association or call SMCMA with your issue at (650) 312-1663. Legal Advice - SMCMA offers advice via telephone to assist members with their legal questions regarding the business and practice of medicine. Members should call Executive Director, Sue Malone for details on accessing this service. Medical Office Staff Wage & Salary Survey - The SMCMA surveys members every two years regarding salaries and benefits provided to office staff. The information

January 2012

Professional Liability Review - The Medical Review & Advisory Committee (MRAC) conducts confidential liability evaluations of malpractice suits filed in San Mateo County against NORCAL policyholders. The MRAC provides advice to the medical malpractice carrier on standard of care issues and helps prepare the best possible defense.

Practice Management Seminars Throughout the year, SMCMA hosts a variety of educational programs to assist members and their staff in medical office management issues. Refer to the “Events” section of the SMCMA.org website for a comprehensive list of upcoming programs. NEW: DocBook MD Smart Phone Application - SMCMA recently endorsed a Smart Phone app that provides the contact information for all physician members. It will definitely help in providing a quick way to reach out to your fellow SMCMA member colleagues. These are just some of the direct member benefits offered by the SMCMA in addition to the more traditional role of political and economic advocacy. It can be easy to overlook these benefits when our attention is focused on the ongoing debate in Washington over the looming cuts to the SGR (which have been delayed for two month as of this writing). Of course, the SMCMA, in conjunction with the CMA and AMA, are very much involved in this ongoing fight over these looming cuts and we are fortunate to have Elizabeth McNeil who directly represents the CMA and us in Washington. Be sure to check out SMCMA.org for more information on the aforementioned benefits. Ω

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January 2012


E x e c u t i v e

Report 2012 Medicare Part B Changes By Sue U. Malone SMCMA Executive Director On November 1st the Centers for Medicare and Medicaid Services (CMS) published updated payment policies and payment rates for physicians’ services furnished in 2012.

for reporting: Cardiovascular prevention; COPD; inflammatory bowel disease, sleep apnea, dementia, Parkinson’s, elevated blood pressure, and cataracts.

According to CMS, more than one million providers of health services to Medicare beneficiaries are paid under the Medicare Physician Fee Schedule (MPFS). An estimated $80 billion will be paid under the MPFS in 2012.

A complete listing of the 2012 measures is posted on the CMS website: www.cms.gov/PQRS/.

Changes in the fee schedule that impact payment policy and physician billing include: • • •

• •

Expanding CMS’ misvalued code initiative Using a health risk assessment (HRA) in conjunction with Annual Wellness Visits (AWV) for which coverage began January 1, 2011 under the Affordable Care Act (ACA). Expanding the list of services that can be furnished through telehealth to include smoking cessation services. Changes in the way additional services are added to the telehealth list will focus on the clinical benefit of making the service available. Updating physician incentive programs including the Physician Quality Reporting System (PQRS), the e-Prescribing Incentive Program and the electronic Health Records Incentive Program. Establishing a new value-based modifier that would reward physicians for providing higher quality and more efficient care. Implementing the third year of a four-year transition to new practice expense relative value units, based on data from the Physician Practice Information Survey that was adopted in the MPFS CY2010 final rule.

E-Prescribing CMS finalized the rules for the 2012 and 2013 e-prescribing incentive payment, and the 2013 and 2014 payment penalty programs. To qualify for incentive payments, physicians: a) may use claims, registry or electronic health record-based (EHR) reporting methods; and must electronically prescribe on the same day as the denominator service, and submit 25 claims containing the e-prescribing measure code (G8553) with one of the denominator codes. The incentive payment for 2012 is 1 percent, and for 2013 it is .5 percent of the total estimated allowed charges for professional services covered by Medicare Part B and furnished by an eligible professional. Physician Quality Report System (PQRS) As in prior years, there have been changes to the individual measures and measure groups. The final rule lists 211 individual measures, including 25 new ones; retains 44 EHR measures currently reportable in the EHR incentive program; and finalized 23 new measure groups, including eight new measures groups January 2012

CMS will provide interim feedback reports for physicians reporting individual measures and measure groups through claims-based reporting for 2012 and beyond. These reports will be a simplified version of annual feedback reports that CMS currently provides and will be based on claims for the first three months of each program year. CMS will use 2012 as the reporting period for the 2015 PQRS penalty. If CMS determines that a physician or group practice (a group of 25 or more) has not satisfactorily reported quality data for the 2013 reporting period, then its 2015 payments will be reduced 1.5 percent. Lab Test Signatures No Longer Required CMS has retracted the requirement for physicians to sign paper lab requisitions for clinical diagnostic laboratory tests. Annual Wellness Visit Changes Criteria for a health risk assessment (HRA) to be used in conjunction with the annual wellness visit (AWV) has been adopted. The HRA is self-reported information which can be done by the patient alone or with assistance, takes no more than 20 minutes to complete and addresses demographic data, psychosocial risks, behavioral risks, activities of daily living (ADL)*, and instrumental ADLs**. The payment for AWV codes has been increased to recognize the additional office staff time required to administer the HRA to the Medicare population. CMS continues its policy of not covering a routine physical exam as part of these services. Advanced Imaging Services Multiple Procedure Pricing A 25 percent reduction to the payment for the professional component of second and subsequent advanced imaging services such as CT, MRI, PET, and MRA furnished by the same physician on the same patient in the same session on the same day will be applied. The highest fee schedule service will be allowed at 100 percent of the fee schedule. Subsequent advanced imaging services will be allowed at 50 percent for the technical component, as in the past, and 75 percent for the professional component. * ADL: daily self-care activities within an individual’s place of residence. ** Instrumental ADL: housework, taking medications as prescribed, managing money, shopping for groceries, use of telephone/ communication, using technology, and transportation within the community. Ω 5


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January 2012


B-17 Checklists and Medicine in the USA By Andrew S. Klonecke, MD It was a beautiful fall day in Dayton Ohio in 1935. The U.S. Army Air Corps was holding a competition for its next generation long-range bomber. Everyone knew that this was not going to be much of a contest as Boeing’s Model 299 was considered the hands-on favorite, much superior to what Douglas or Martin had designed. The “flying fortress,” as it was dubbed, could carry five times as many bombs as the army had requested and flew faster and farther on a tank of gas. This competition was a mere formality so that the army could order 65 of these new planes. This was going to launch a great new era for the AAC and, of course, an extremely positive bottom line for Boeing. All began well as the glistening all-aluminum bomber rolled out on the tarmac. Despite its enormous (for that time) 103foot wingspan and four engines, it looked sleek. Major Ployer Hill, the army’s most experienced test pilot, guided the plane down the runway to a smooth liftoff. But then the unthinkable happened. After climbing to 300 feet, the plane stalled, turned on one wing and crashed in a fiery explosion. Major Hill and two of the other four crew on board were killed. Boeing, obviously, did not get the contract that day and nearly went bankrupt. The Army called for an investigation, but found no mechanical problems. It was pilot error. The aircraft was substantially more complex than previous aircraft and Major Hill, despite paying attention to all four engines, retractable landing gear, new wing flaps, electric trim tabs and the hydraulicallycontrolled, constant-speed propellers, had forgotten to do a very minor task which was to release the locking mechanism on the elevator and rudder controls. It was simply too much plane for one man to fly. The army loved this plane and bought a few anyhow to test drive. A group of test pilots was assigned to figure out how best to fly this plane. They resisted the notion that it would simply require more pilot training because after all, wasn’t Major Hill the most trained and experienced the Army had to offer? What they came up with was a very simple solution — the pilot’s checklist. The plane was just too complicated to be left to the memory of any one pilot to fly. The Army then went on to fly this plane 1.8M miles without incident and eventually bought 13,000 of them. It became known as the B-17 bomber and gave the U.S. a distinct advantage in the air during World War II. So, what has this got to do with Hospital Acquired Infections (HAI) and medicine in general? In a recent study of 41,000 trauma patients, it was determined that they had 1,224 different diagnoses in 32,361 different combinations. Is this like having to land 32,261 different airplanes, and has medicine now entered the B17 phase? After all, we have our crashes, just like Major Hill — two million patients get hospital-acquired infections, 40 percent of CAD and 60 percent of DM patients get incomplete or inappropriate care and up to 50 percent of surgical complications may be avoidable. Peter Pronovost, an intensivist at Johns Hopkins, thought about this as he contemplated the 11 percent central line infection rate in his ICU in the mid 1990s. He wondered about the concept of the list that the army pilots had created some 60

years earlier, and that commercial airline pilots still utilized, and he wondered whether that might be of benefit to his patients in the ICU. He noted the critical steps required to insert a central line that would not become infected included hand washing, cleansing the patient’s skin, using sterile drapes, gowning and gloving and then applying a sterile occlusive dressing to the insertion site. But when he observed, he saw that in one third of procedures, at least one step was skipped. He was able to enlist the administration’s support to authorize the ICU nurses to stop any physician who did not follow the five-point checklist during a central line insertion. After this was initiated, the ten-day line infection rate went to zero! This prevented 43 infections and eight deaths, while saving $2 million. Next, Dr. Pronovost attacked ventilator care and then the nurses and doctors were invited to create lists for any other procedures. The end result was that it cut average length of stay in half. What is there not to like about preventing infections, decreasing mortality and saving lives? Yes, the physicians had to invest extra time to follow the checklists and had to endure the nurses’ scrutiny to make sure the lists were followed, but look how much the patients gained. And ultimately, the physicians would gain not only respect for the high quality of their work, but also the great self-satisfaction that would come from doing the right thing. If the physicians continued to skip one or more steps in every procedure, the patients would pay the price, sometimes with their lives. (A personal note: While in the CV surgical ICU after bypass, I watched the sink and gel like a hawk and you can be darn sure I made everybody wash before touching me; maybe patients should be provided checklists as well as professionals!) Do we really need checklists to get the jobs done consistently and correctly? It turns out that a major benefit of using a checklist is that it helps memory recall, especially the mundane, and it makes explicit the minimal expected steps in a complex process. For example, one in thirteen hospital deaths is due to hospital-acquired sepsis. In Northern California, hospitalacquired pneumonias, C. difficile infections, surgical site infections, central line infections and catheter associated UTIs affected some 5,700 patients last year, causing about 500 deaths and 46,000 extra hospital bed days. What is interesting about HAI is that many of the drivers of these infections should be easy to control including hand washing, isolation and room cleaning. Reducing unnecessary antibiotics and PPIs are additional factors. When hospital staff are asked if they wash their hands or not, 81 percent said that they did in one study; but when the secret shoppers went into the hospitals and observed for this behavior, the results indicated that only 26 percent to 71 percent actually did. Atul Gawande, MD, (surgeon, author, journalist and head of the Global Patient Safety Challenge of the WHO) defines an effective system as one that is data driven, which lets you know whether you have succeeded or failed in a particular circumstance; which continued on page

January 2012

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5010 Quick Reference Guide CMA surveyed the major payors in California to find out which of them will continue to accept 4010 transactions beyond January 1, 2012. Results, where available, are below. This guide will be updated regularly as new information becomes available. Physicians are encouraged to also review CMA’s guide, “Preparing for the New HIPAA 5010 Standards: A Guide for Physicians,” available in CMA’s online resource library. (Updated 12/20/11) Payor Name

Accepting 4010 after Jan. 1?

Additional information and Plan 5010 Links

Aetna

Yes

• •

Anthem Blue Cross

No

• • •

Blue Shield California

Case-bycase basis

• Cigna

No

• •

Aetna reports to CMA that while January 1 is the effective implementation date, they will continue to accept 4010 transactions without penalty until 3/31/12. www.aetna.com, select “healthcare professionals.” At the time of publication, Anthem reports to CMA that they have no plans to allow for an extension. www.anthem.com/ca/home-providers.html, click “enter” to enter site, search “5010.” In preparation for implementation of 5010, Blue Cross notified physicians on October 24 that when verifying eligibility and benefits information through the Provider Access website, you will now be required to enter the 3-digit alpha prefix located on the member’s ID card. If you do not have the 3-digit alpha prefix from the patient’s ID card, you can use a temporary 3-digit prefix of XDP followed by the patient’s ID number. Once the system returns the patient eligibility and benefits information, practices are encouraged to make a note of the actual prefix for future inquiries. Questions should be directed to the Anthem Blue Cross ProviderAccess Help Desk at (866) 755-2680. Blue Shield reports to CMA they have enacted a contingency plan to support Trading Partners who may need 4010A1 support beyond 1/1/12. However, Trading Partners must inform Blue Shield of California of this need and provide an action plan which states when they will be 5010 compliant. Absent a formal notification from the Trading Partner, Blue Shield will expect 5010 compliance on 1/1/12. https://www.blueshieldca.com/provider/claims/electronic-transactions/hipaa-5010ICD.sp At the time of publication, Cigna reports to CMA they have no plans to allow for an extension. www.cigna.com, select “healthcare professionals,” then select “resources for healthcare professionals,” select “news from Cigna,” select “HIPAA-special information for Providers.”

Health Net

Yes

Health Net reports to CMA that while January 1 is the effective implementation date, they will continue to accept 4010 transactions without penalty until 3/31/12.

Medi-Cal

Yes

The Department of Health Care Services announced a likely delay in meeting the January 1 deadline for implementation of 5010 transactions on 10/13. The notice states that physicians submitting Medi-Cal fee-for-service claims should plan for continued use of the current 4010A1 transactions. View the notice on the Medi-Cal website at www.medi-cal.ca.gov, under newsroom click “Implementation of HIPAA X12N 5010/NCPDP D.0 & 1.2 Transactions Delayed.” Practices are encouraged to contact their clearinghouse and practice management system vendors to inquire about how the vendors are accommodating this delay.

Medicare

No

No CMS reports that practices must be HIPAA 5010 compliant by January 1, 2012. Claims submitted in 4010 format will be rejected on January 1. However, CMS will not enforce any penalties on vendors about which they receive complaints until March 31. Information is available on the Palmetto website at( www.palmettogba.com/j1b, click on “EDI”, then “general.”

• United Healthcare

Yes

• •

January 2012

UHC reports that internal business decisions are underway to allow for this extended enforcement period and they will not reject 4010 transactions until 4/1/12. www.unitedhealthcareonline.com/, click “tools and resources,” then “EDI education for electronic transaction,” then under general EDI click “HIPAA 5010 & ICD-10.” 9


A Member Benefits Refresher Learn How SMCMA is Working for You! The San Mateo County Medical Association (SMCMA) represents, educates and serves physicians of San Mateo County, while promoting quality medical care for local residents in order to enhance the health of the community. In addition to its community health initiatives, SMCMA offers a wide array of legal, collegial and advocacy benefits to its members. The medical association also produces several helpful publications, including the NEWS and the Association’s flagship publication, San Mateo County Physician (previously titled The Bulletin), and has a variety of committees that uphold the medical profession. SMCMA has been serving local physicians since 1905 as a 501(c)(6) nonprofit organization governed by a board of directors composed of local physicians. SMCMA welcomes all physicians and acts as a unifying force in the community. Interested physicians with MD or DO degrees can join both SMCMA and CMA by completing a simple, one-page application form. Legislative Advocacy - When the point of view of physicians is sought by the Board of Supervisors, state legislature, state regulatory bodies, Congress, and in the administrative branches of the local, state, and federal levels of government, SMCMA ensures that the needs of San Mateo County physicians and their patients are represented. No other organization at the local level provides such comprehensive legislative services on behalf of all physicians. Reimbursement Advocacy Assistance - SMCMA works directly with commercial and government payers to resolve reimbursement or other disputes on your behalf. Let us focus on handling these hassles so that you can concentrate on what matters most - your patients. We are also here to help with general practice management concerns, coding issues, EHR implementation assistance and navigating governmental regulations, such as HIPAA. Community Involvement- SMCMA works to enhance the health of the community by helping local residents gain the knowledge, motivations and opportunities needed to make informed decisions about their health. The medical association supports local, state and national efforts to promote healthy behaviors, create healthy environments and increase access to high-quality health care. Media Relations - SMCMA members and staff work hard to enhance the public image of physicians in our community. The San Mateo County Medical Association is usually the first phone call made by San Mateo County and surrounding area newspapers when an article about health care is being written. Has the local newspaper called you with a question regarding a current topic of interest, and you didn’t know how to respond? When you receive those media inquiries, call us for help. 10

MICRA Savings - In 2011, the average San Mateo County physician saved more than $67,861 in malpractice insurance premiums because SMCMA actively fought to preserve MICRA legislation. Your savings in 2011 alone were more than enough to pay your CMA and SMCMA membership dues for the next few decades, and you can rest assured that organized medicine is working diligently to keep MICRA intact. Medical Office Staff Wage & Salary Survey - In an ongoing effort to provide you with information to help manage your practice, the San Mateo County Medical Association surveys members every two years regarding salaries and benefits provided to office staff. The information collected through this survey can assist SMCMA members in establishing competitive levels of compensation and benefits. Physician members who participate receive complimentary copies of the survey. Copies of the reports are available to nonparticipating SMCMA members for $100. Survey results are not available to non-members. Physician Referral Service - SMCMA offers a computerized referral service to the general public and makes thousands of referrals annually to SMCMA members, exclusively on the basis of specialty, geographic location, board certification, languages spoken, etc. This is a free public service. With managed care, provider panels, and group practices, a referral service may be considered by some to be obsolete. Don’t believe it. Membership in the Medical Association still denotes quality to the general public. Patients still want to know, “Is my doctor a member of the San Mateo County Medical Association?” Legal Advice - Through an agreement with a health care law firm headquartered in San Francisco, the SMCMA offers its members telephone advice regarding the business and practice of medicine. Call Sue Malone, SMCMA Executive Director, to access this service. The California Medical Association also offers for purchase, the California Physician’s Legal Handbook, a comprehensive legal guide. Go to: www.cmanet.org/resources/legal-assistance/ Physician-Patient Mediation - The SMCMA serves as a mediator between patients and physicians by reviewing patient grievances. We attempt to resolve issues before they escalate to the Medical Board of California and potential lawsuits. This service is offered through SMCMA‘s Professional Relations, Medical Review and Advisory and Fee & Insurance Mediation Committees. According to most professional liability insurance carriers, a great number of lawsuits are due to poor communication or miscommunication between patients and their physicians. Our Committees are quite successful in putting out these small fires before they become uncontrollable. SMCMA’s Fee & Insurance Mediation Committee reviews patient complaints about fees charged January 2012


by a member, and physician grievances regarding insurance reimbursement issues. Practice Management Seminars - SMCMA hosts periodic educational programs to assist physicians and their medical office staff in dealing with employment law issues, claims processing, coding, compliance, and other practice management concerns. HIPAA Compliance Toolkit - The San Mateo County Medical Association and California Medical Association and have teamed with PrivaPlan—a company that developed a comprehensive and detailed step-by-step approach to HIPAA compliance, assessment, and customization. The PrivaPlan ToolKit is designed to provide a complete compliance solution for practicing physicians. The CD-ROM ToolKit contains many forms and instructions on how to get compliant, access to an excellent listserv, and a complete form policy and procedure manual. The California-specific customization of the ToolKit provides SMCMA members with policies and procedures that are simple and effective. Although the PrivaPlan ToolKit is not “free,” members are eligible for a significant discount. Professional Liability Review - The Medical Review and Advisory Committee (MRAC) is compromised of a multispecialty Committee of local physicians whose goal is to conduct confidential liability evaluations of malpractice suits filed in San Mateo County against NORCAL policyholders. The MRAC advises the medical malpractice carrier on standard of care issues and plays an important role in helping prepare the best possible defense. Membership Events - Gather with your colleagues in a social setting by attending Medical Association-sponsored events. The Annual Meeting of Members takes place in late June and includes a keynote speaker on an interesting topic. Other educational programs are offered throughout the year. Professional Liability Insurance - NORCAL Mutual Insurance Company was formed by physicians in 1975 to provide our policyholders the highest quality medical professional liability insurance, products and services at the lowest responsible cost, while maintaining a financially sound company. The San Mateo County Medical Association and 27 other county medical societies throughout California endorse NORCAL Mutual as their preferred medical professional carrier. To request information or an application, call 800-652-1051 or visit www.norcalmutual.com. Endorsed Insurance Programs - SMCMA endorses several insurance plans, other than professional liability coverage, which afford physician members with discounted programs and services on Workers’ Compensation (savings of 5%15%), health insurance, employment practices liability, long-term disability, 10 and 20 year term life, AD&D, group universal life, dental, long-term care, business overhead, and business owners liability coverage. Marsh can also assist with a member only health savings account. For more information, visit www.advisorconnexions12.com. Tax Audit Defense- Did you know that physicians are in a high-risk category for being audited by the IRS? An endorsed company, TaxResources, is a unique prepaid audit defense January 2012

program composed of highly trained, tax-audit specialists. In addition, TaxResources’ annual membership fee is often tax deductible. NEW - DocBook MD Smart Phone Application - SMCMA endorses a Smart Phone app that provides the contact information for all physician members. It is an efficient and easy-to-use communication tool that allows SMCMA members to search for another member and then text, call or e-mail them with just one touch. The app is secure through encryption and verification and activated only by SMCMA members. Political Action - The San Mateo County Medical Association Political Action Committee (SMPAC) and the California Medical Political Action Committee (CALPAC) evaluate candidates and contribute to those supportive of the policies and positions of organized medicine. The primary goal of these PACs is to gain access to legislative leaders and policy makers for medicine’s message to be heard. Your membership in the Medical Association is your link to SMPAC and CALPAC. Association members are encouraged to make voluntary contributions to these action committees. Classified Advertising - SMCMA members are invited to place classified advertisements in the Medical Association’s monthly publication for a very nominal fee. Advertising your practice in the SMCMA Membership Directory is also available to members. PUBLICATIONS San Mateo County Physician (previously The Bulletin) - The San Mateo County Medical Association’s monthly magazine, San Mateo County Physician, is a “must-read” for every practicing physician in San Mateo County. It contains articles on a wide variety of topics that impact medical practices in California. The NEWS - SMCMA produces a monthly newsletter offering up-to-the- moment news and information on legislation, regulations, practice management, and other local, state, and national issues. SMCMA Membership Directory - The SMCMA Membership Directory is often heralded as the most important member benefit. The directory is the only pictorial, comprehensive directory of physicians in San Mateo County. It features photographs of physician members, their specialties, office practice address(es), and telephone number(s), as well as the physicians’ medical school and graduation year. This physician resource is used by many health services organizations and hospitals. SMCMA Website - SMCMA’s Web site, (www.smcma.org) provides free linkages to SMCMA members’ Web sites. Now, the public can access the SMCMA Web site and can find your picture, where your office is located, where you went to medical school and be able to learn all about your individual medical practice, simply by clicking a button that will send them to your practice’s Web site! Ω

11


High-Risk Issues Associated with Lawsuits And What To Do About Them By Karen K. Davis, NORCAL Group

What are some of the riskiest areas associated with practicing medicine day-to-day? They may be more common place than you think, and some may be easier to guard against than you imagine.

9. Legibility of documentation. 10. Authentication of medical record entries.

To discover trends in professional liability, NORCAL relies on its extensive database of closed claims information and from facts garnered during on-site risk assessments. Analyzing statistics from these two sources can give a credible picture of the types of situations and actions that most often lead to litigation for physicians, medical groups, and hospitals.

While the issues from the field are more specific than those on the closed-claims list, there is a revealing overlap. By looking at the lists closely, we can identify four main areas in which physicians are likely to significantly lower their risk levels if they implement effective risk management strategies. Those areas are:

The Claims Perspective

1. 2. 3. 4.

NORCAL’s closed-claims database can distinguish various nonclinical issues (that is, problems in processes or communication) that are associated with lawsuits. These associated issues have often complicated the defense of allegations made against doctors and healthcare facilities. Closed-claims data for policyholders for the past two years (July 2009 through June 2011) show the top ten associated issues causing difficulties in claims were: 1. Problem with history, examination, or work-up. 2. Error associated with interpretation or communication of radiology results. 3. Communication problem between healthcare providers. 4. Comorbid issues (comorbidities complicated treatment of patients). 5. Informed consent issues. 6. Problem with medical records. 7. Failure to follow up on tests. 8. Vicarious liability. 9. Problem with a medical or surgical device. 10. Inadequate facility or equipment.

Looking for the Overlap

Following are tips to help you and your staff members evaluate and decrease your liability exposure related to these four key areas. Management of Follow-up Processes Follow-up systems are important because physicians have a responsibility to ensure that patients are informed about their conditions and get needed care. Here are some strategies for evaluating and honing your follow-up system. •

The Perspective from the Field From a subset of 175 risk assessments conducted in the last two years (between July 2009 and June 2011), the top 10 risk issues revealed in this study were linked to: 1. Handling of after-hours telephone calls (including documentation and communication with covering physicians). 2. Distribution of sample medications. 3. Reporting test and consult results to patients. 4. Use of therapeutic agreements with chronic pain patients. 5. Follow-up processes after hospital discharge. 6. Follow-up processes for return office visits. 7. Documentation of allergies. 8. Making corrections in medical records.

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Management of follow-up processes. Generation of documentation. Management of medications. Communication with other healthcare providers.

• •

When patients are sent for testing, three areas of concern are: Did the patient comply with the recommendation for testing? Were test results received and reviewed by the ordering physician? Was the patient notified about the results? An appropriate follow-up system provides answers to these questions. Double-check your method for monitoring compliance with appointments. There should be some mechanism in place that requires licensed personnel in the practice to review all no-show appointments to determine which patients must be called and rescheduled. Don’t make the patient solely responsible for making appointments for tests or for calling the office to obtain results; assist them. Your follow-up system for diagnostic tests should include not only a method for confirming that you received the test results but also a process for ensuring that you reviewed the results. The review should be timely. A test result should never be filed until you (as the ordering physician) have personally reviewed, dated, and initialed it. Institute the policy of notifying all patients of all test results (rather than just reporting abnormals).

January 2012


Generation of Documentation The purpose of the medical record is to communicate internally and externally about a patient’s health. In addition, in a medical malpractice lawsuit, the patient’s record will be used as evidence. •

Each patient’s chart should be an accurate account of the patient’s history and complaints, physical findings, diagnostic tests, diagnoses, and medical care and treatment. Whether a record is paper-based or electronic, the documentation in it should show the patient’s active problems, data analyzed to understand the problems, and plans for further investigating and handling of the problems. If you are handwriting medical record documentation, you should assess your entries to ensure that they are easy to read. If your notes are not clearly legible, you should consider methods to improve the notes, such as printing, dictation, or typing your notes into a computerbased medical record. If you choose to use dictation, you should read all the typed notes to make certain the transcriptionist has accurately recorded the information before you sign and date the notes. Allergy documentation is harder to miss if it is consolidated in a single area of the record. If the patient reports no allergies, the phrase “no known allergies” or the initials “NKA” should be written or typed in the area designated for documentation of allergies. After conducting an informed-consent discussion with a patient, ensure that there is confirmation of the consent process in the medical record, including a consent form signed by the patient and a description of the content of the informed-consent discussion in the progress or preprocedure notes. Telephone contacts should be documented in the medical record, including calls taken after hours. Information from after-hours calls should be incorporated into the medical record as soon as possible. If there is a mistake in the record, you should correct it by drawing a thin line through the inaccurate words. The original entry should still be readable. Then write the correction clearly and legibly nearby, and initial, date, and time it. Never erase, white-out, or otherwise obliterate any entry in the medical record. Electronic health records should not allow you to delete any previously entered material. Instead, they should have methods for correcting prior entries that preserve the original notes. Once you are notified about a potential liability claim, you should not change, add to, or in any way revise a medical record.

Management of Medications The main medication management issues that have been discovered in office assessments have to do with distribution of sample drugs and establishment of pain management contracts. Some tips in these two areas follow: •

You may lower your liability risk if the sample medications in your office are well controlled. Sample medications

January 2012

should be locked in a cabinet or closet. Limit access to samples by designating specific staff to organize and maintain the sample closet. Do not allow pharmaceutical representatives or other unauthorized people access to the sample closet. Document all dispensed samples in the appropriate patient’s medical record. When you give out samples, labeling them with specific information, including name and quantity of medication, name of manufacturer, physician name and address, patient name, date, and instructions for use, will reduce the risk that a patient will make a self-administration error. You can create label templates and fill in the appropriate information before applying a label to a sample box. When you are treating chronic pain patients with opioids, consider setting up written pain medication agreements with these patients. Such agreements can help you and the patient define and agree on appropriate behavior and hinder addicts from obtaining an unlimited supply of medication.

Communication with Other Healthcare Providers Gaps in communication between treating physicians can cause problems that jeopardize a patient’s well-being and provide the impetus for litigation. Here are some suggestions for remaining aware of a patient’s situation when you are sharing that patient’s care with a colleague. •

If you refer patients to other physicians, have some mechanism in place to see that your referral recommendations are carried out and that the patient was seen by the consultant (or another physician of the patient’s choice). Your follow-up mechanism for referrals should also track your receipt and review of the consulting physician’s report. Communicate in writing with the consultant about the specific consultation request you are making. Preparing a fact sheet with the patient’s clinical information and your impression is an effective way to convey the significant details to another physician. After a patient is seen by a consultant, there must be a clear understanding about who will be responsible for what aspects of the patient’s care and who will order further testing and consultations if these are necessary. If you are a consultant, communicate urgent or significant findings directly to the referring physician and be sure that you both know who will provide clinical follow-up. The communication should be done by phone and in writing.

Conclusion Most of the risk management recommendations in this article are not expensive or hard to put in place. Most focus on setting up systems or protocols and then adhering to them. Taking some time to appraise and strengthen vulnerabilities in your practice or facility will help protect patients and may keep you from a malpractice suit or help you defend against one. Ω Karen K. Davis, MA, CPHRM, is a Risk Management Project Manager with the NORCAL Group.

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Discovery Issues continued from page

1

“native access” to the EHR systems. This includes allowing lawyers and/or their consultants to access a live version of the patient chart via computer at the defendants’ office/campus. The benefit of this approach is one can visualize the patient data as it was seen by the health care providers during the provision of care. Often, the printouts from EHR systems (as used in litigation) bear little resemblance to how the data is presented to the clinician on the computer screen. It is important to both the plaintiffs and defendants that there is a full and accurate presentation of the data. This is a step toward that goal, but again the data must be viewed in context and, more importantly, presented in context in Court. Only through appropriate technological consultants and experts can you and your legal team be ready to present this information to a lay jury. Imagine a clinical pop-up window indicating a potential drug interaction or even a recommended test based upon the history of the patient. If these clinical decision support prompt windows are closed within seconds, and no reason is given for the closing so quickly, then it can be inferred that it was closed as an annoyance rather than based upon some deliberate thought process. Of course, the thought process and judgment can be explained in a deposition. The usual example is that the issue presented by the pop-up had been considered and dismissed by the clinician prior to the computer sending the pop-up. However, this has the appearance of an excuse rather than an explanation. Juries liken the pop-up window phenomenon to the ever-increasing number of online ads that are pop-ups from web pages. Most consumers close these almost immediately as an annoyance and there is data suggesting that clinicians close them quickly and for the same reason. Jurors will assume that a two second interval between presentation and closure indicates a lack of deliberate thought. It will then be used to illustrate carelessness and potentially even rushing through the visit by the defendant clinician. It is difficult to rebut the metadata with statements such as “physician judgment”. In conclusion, the environment continues to evolve, and technology provides both opportunities and challenges in litigation. There must be a consistent and well-developed process for the selection of an EHR system, training and rollout and, finally, auditing your processes and procedures to ensure that those within your organization are following the training on a going forward basis. That way, you can improve your chances of success, reduce risk, and improve your bottom line. Ω Note – The above article is not legal advice and is not intended to, nor does it, create an attorney/client relationship. For general questions regarding EHR discovery or auditing of EHR systems, please contact Mr. Bartos at trba@stevenslee.com.

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B-17 Checklists continued from page

7

lets you use both this data and the experience of its members to devise solutions; and to implement those solutions. The latter requires a new emotional intelligence for healthcare providers, namely humility or the recognition that we all can fail. We must believe that discipline and standardization can reduce failure, and that others can save any of us from failure no matter where in the hierarchy they stand. These are not the traits that most of us were taught as we became doctors, nurses, pharmacists, techs, etc. The higher we were along the pecking order, the more authority we had, and the less we were questioned by underlings who knew that a chief was doing something wrong. This has been noted in other industries as well. In his book Outliers, Malcolm Gladwell devoted a chapter to Korea Airlines back in the 1990s. They sustained multiple airline crashes, to the point that the airline was nearing bankruptcy and the country was so humiliated that the government took over the company. The average loss rate for the airline industry was 0.27 passengers per million miles flown. Korea Air’s loss rate was 17 times higher at 4.79 per million miles. The U.S. military would not let our troops fly Korea Air, and even President Kim de Jaeng switched to Asiana. It turned out that the biggest cause for Korea Air’s troubles could be traced to something called PDI for Power Distance Index. This is a measure of how much a culture respects and values authority. Korea has one of the highest PDI scores, indicating an extreme respect that all had for the captain and how no one would contradict or intervene even when it was obvious that a great disaster was going to occur. Something had to change. Cho Yang-Ho, who received his MBA from USC, was put in charge and was able to change the culture by installing a systems approach that would minimize the personality-driven, top down culture that was the legacy of Korean business managers at the time, who tended to value intuition and responding to orders. Cho relied more on technology, creating a central clearing house to monitor and investigate safety reports and audit findings. All divisions were ordered to share and coordinate data, and all where expected to follow the established procedure. Young pilots were trained to speak up when it was time to speak up. It was Atul Gawande’s system 15 years pre-Gawande. Some hospital systems have many crashes too: C. diff infections, hospital-acquired pressure ulcers, wrong-side surgeries, “never” events. When a safety questionnaire that measured the teamwork climate was administered to ORs and inpatient service, the higher teamwork scores correlated with lower rates for hospital-acquired C. diff rate, and hospital-acquired pressure ulcers. Those facilities that scored high on teamwork had a rate of HAPU of 0.4 per year vs. a rate of 2.9 per year for those scoring low. For never events, one every ten months in those facilities scoring the lowest (under 60) and one every 32 months where teamwork was highly rated.

satisfaction. By why wouldn’t we think a little differently about this? Why wouldn’t we be more satisfied with better outcomes that result when we function as a team, when we rely on those around us to help us be successful and keep us from failing, when we use a checklist, when we wash our hands, etc.? Sure, it may take a little longer to wash and gown up before putting in that line, visiting the patient one last time, sewing up that laceration. There are shortcuts we can take everywhere, but the question we need to ask is, “Who will pay the price?” Yes, we do pay the price of time. But if we don’t, then the patient may have to pay the price, and it could be a steep price indeed. And ultimately, if too many patients pay the price, then we as medical professionals will pay the ultimate price of poor quality medicine. So what does this all have to do with consistency? And, what is consistency? Per dictionary.com, among several definitions are these: • steadfast adherence to the same principles, course, form, etc. • agreement, harmony, or compatibility, especially correspondence or uniformity among the parts of a complex thing. Medical professionals make up a complex organization to provide a complex service to patients. If we are consistent, we will communicate with each other in a uniform manner, we will agree on how best to care for the patient and we will stick together. We will consistently do the right thing whether it be patient-centric scheduling, making sure our patients get all their cancer screenings, or helping a colleague who asks for our assistance. We will consistently track our own performance looking for ways to improve our patient care, and we will share best practices that we have adopted and adopt best practices others have developed. We will consistently rely on others to help us do the right thing for the patient, acknowledging that we can all help one another to succeed, and that the chances of failure become greater when we attempt to do it alone. Ω Dr. Klonecke is a Nuclear Medicine physician with the Permanente Medical Group in Sacramento. This article originally appeared in SSV Medicine, the journal of the Sierra Sacramento Valley Medical Society, November/December 2011. Copyright 2011. Reprinted with permission.

There is some concern that standardization and adoption of best practices conflicts with personal autonomy; some have suggested that this can lead to a decrease in physician

January 2012

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Veteran Status May Be Factor in Diagnosis Over the years, military men and woman have suffered every manner of physical and emotional injury. Those injuries have had significant health consequences for millions of California veterans. Vietnam veterans who were exposed to Agent Orange, the toxic herbicide sprayed over the jungles between 1962 and 1971, now have increased rates of prostate, respiratory and other cancers, lymphoma, Type 2 diabetes, ischemic heart disease, nerve damage, and digestive and skin disorders. Veterans of every era frequently suffer from hearing loss and tinnitus. Many struggle with post traumatic stress disorder or traumatic brain injury. The U.S. Department of Veterans Affairs (VA) now presumes that 14 diseases and disorders found in “boots-on-the-ground” and certain other Vietnam veterans are the result of Agent Orange exposure. “It would be easy for a doctor to overlook Agent Orange exposure as the cause of a patient’s Type 2 diabetes when genetic and lifestyle risk factors are present. The post traumatic stress disorder or military sexual trauma at the root of patient’s chronic depression could also be missed,” said California Department of Veterans Affairs (CalVet) Secretary Peter Gravett. “That’s why it’s so important to ask patients whether they ever served in the military when evaluating, diagnosing, and treating them.” CalVet encourages medical, health education, and support organization professionals to: • • •

Ask patients whether they have served in the military; Become familiar with the diseases and disorders that commonly affect the veteran population; and Consider a patient’s veteran status when evaluating symptoms, making diagnoses, and offering treatment.

Veterans may be entitled to monetary benefits, health care, vocational rehabilitation services, and free assistive devices, such as hearing aids, through the VA. Veterans who have been diagnosed with any service-connected health condition should contact their County Veteran Service Office for assistance. For more information about veteran health or benefits, visit www.calvet.ca.gov or call (877) 741-8532.

January 2012

Editorial Committee Barry B. Sheppard, M.D., Chair Russ Granich, M.D. Edward G. Morhauser, M.D.

Sharon Clark, M.D. Philip Krueger, M.D. Michael Stevens, M.D.

Sue U. Malone �����������������������������������������������Executive Director Reina O’Beck ��������������������������������������������������� Managing Editor Gregory C. Lukaszewicz, M.D....................................President Mary Giammona, M.D.......................................President-Elect Amita Saxena, M.D....................................Secretary-Treasurer John D. Hoff, M.D...........................Immediate Past President Alberto Bolanos, M.D. Raymond Gaeta, M.D. Russ Granich, M.D. Robert Jasmer, M.D. Edward Koo, M.D C.J. Kunnappilly, M.D Vincent Mason, M.D Michael Norris, M.D. Kristen Willison, M.D.

David Goldschmid, M.D. CMA Trustee Scott A. Morrow, Health Officer, San Mateo Co. Barry B. Sheppard, M.D. AMA Alternate Delegate

Article Submission Members are always encouraged to submit articles, commentary and Letters to the Editor. Email your submission to the SMCMA Editorial Committee at smcma@smcma.org for consideration for publication in the Bulletin. For editorial or advertising inquiries, please use the contact information provided below.

Editorial and Advertising Offices 777 Mariners Island Boulevard, Suite 100, San Mateo, CA 94404 Tel (650) 312-1663 Fax (650) 312-1664 smcma@smcma.org www.smcma.org Acceptance and publication of advertising in the BULLETIN does not constitute approval or endorsement by the San Mateo County Medical Association of products or services advertised. SMCMA reserves the right to reject any advertising.

Opinions expressed by authors are their own and not necessarily those of the SMCMA. The BULLETIN reserves the right to edit all contributions for clarity and length, as well as to reject any material submitted. © Copyright 2012 San Mateo County Medical Association

17


Classifieds

Membership Update

Burlingame Medical Building

Location on El Camino, Burlingame; across from MillsPeninsula Hospital. Two office suites: 800+ square feet and 1700+square feet. Call Alipate Sanft, SC Properties, 650-342-3030 x212.

NEW MEMBERS aneesh ambalal/ *im S. San Francisco

michael macavoy/ *ors S. San Francisco

patrick chang/ *dr S. San Francisco

laura millender/ *ro S. San Francisco

101 S. San Mateo Drive, 3rd Floor, 1,234 useable square feet, 4 exam rooms, office, nurses’ station, large waiting room. Available Immediately on Mon., Wed., and Fri. For details, call (650) 688-8480 on a Mon, Wed, or Fri or send email to: blessmoore@earthlink.net

salumeh Dadres/ *im S. San Francisco

naureen a. mirzageorge/ *oph Daly City

Medical Office Space Available for Sublet

arti gehani/ em S. San Francisco

Mills Square - San Mateo Medical Office For Sublease

Four exam rooms with running water and one MD office available for up to four days weekly. May be able to provide office staff if needed. Excellent location, opposite Peninsula Hospital. For details please contact Bonnie McGuire: Bonnilee@aol.com or 650-259-1480. Place a classified ad for $40 for up to five lines for members and $75 for up to five lines for non-members. Contact SMCMA at (650) 312-1663 or smcma@smcma.org.

Tracy Zweig Associates

michael duh/ *DR, *NR S. San Francisco

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INC.

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sheena kumar/ *FM Daly City john m. lee/ im S. San Francisco

john h. ngai/ gs Redwood City kari nelson/ *dr, *ir S. San Francisco y. long pham/ *im S. San Francisco rebecca poliskin/ *im S. San Francisco maria sciammarelia/ cd S. San Francisco aamra sheikh/ im S. San Francisco hoyt tong/ *fm S. San Francisco

deborah lobo/ *D S. San Francisco

STOP THE PAPER! San Mateo County Medical Association Members:

Locum Tenens Permanent Placement

Accept electronic delivery of the Bulletin and the NEWS at your email address! Send an email to: stop.paper@smcma.org from your preferred electronic delivery email address.

V oi c e: 800-919 -9 1 4 1 o r 8 0 5 -6 4 1 -9 1 4 1 FA X : 8 0 5 -6 4 1 -9 1 4 3

Your preference will be noted and acted upon beginning with the next issue.

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Questions or comments? E-mail us at: smcma@smcma.org or call 650-312-1663

January 2012


January 2012

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To make a calculated decision on medical liability insurance, you need to see how the numbers stack up—and there’s nothing average about NORCAL Mutual’s recent numbers above. We could go on: NORCAL Mutual won 86% of its trials in 2010, compared to an industry average of about 80%; and we paid settlements or jury awards on only 12% of the claims we closed, compared to an industry average of about 30%.* Bottom line? You can count on us. *Source: Physician Insurers Association of America Claim Trend Analysis: 2010 Edition.

strenghten your Practice at norcalMutual.coM Proud to be endorsed by the San Mateo County Medical Association.

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