Wednesday, September 19, 2018

OCMA Blog

Distracting Devices in Healthcare: Malpractice Implications

By:  Shelley Rizzo, MSN, CPHRM, Patient Safety Risk Manager II, The Doctors Company

Digital distraction in healthcare is emerging as a great threat to patient safety and physician well-being.1 This phenomenon involves the habitual use of personal electronic devices by healthcare providers for nonclinical purposes during appointments and procedures.2 Some call it “distracted doctoring.”

But the threat might more aptly be called “distracted practice,” as it impacts all healthcare workers and staff. Personal electronic devices can create a digital distraction so engaging that it consumes awareness, potentially preventing healthcare providers from focusing on the primary task at hand—caring for and interacting with patients. And the consequences can be devastating.

Distraction can be both a symptom of and a contributor to healthcare provider stress and burnout. As a symptom of burnout, digital distraction is a way to escape a stressful environment. As a contributor to burnout, digital distraction impedes human interaction because of the sheer volume of data demanding our attention.

For most healthcare providers, distractions and interruptions are considered part of the job; it is the nature of their work. If we consider healthcare distraction on a continuum, on one end are distractions related to clinical care (e.g., answering team member questions or responding to surgical equipment alarms). On the other end of the continuum are distractions unrelated to clinical care (e.g., making personal phone calls, sending personal text messages, checking social media sites, playing games, or searching airline flights).

From a litigation perspective, the distinction between distractions related to clinical care and those unrelated to clinical care is important. In a medical malpractice claim where there is an allegation that an adverse event was caused by distracted practice, a distraction caused by a clinical-care-related activity may be found to be within the standard of care and is, therefore, often defensible. But where it can be shown that the distraction was caused by non-patient matters, the plaintiff’s attorney will certainly use that against the defendant. In these situations, the defendant’s medical care may not even enter the equation, because during eDiscovery the metadata (i.e., cell phone records, scouring findings from hard drives) serves as the “expert witness.” Even if the defendant’s clinical care was within the standard, the fact that there are cell phone records indicating that the healthcare provider was surfing the Internet or checking personal e-mail may imply distraction and could potentially supersede all other evidence.

Two new CME courses from The Doctors Company, How Healthcare Leaders Can Reduce Risks of Distracted Practice in Their Organization and The Risks of Distracted Practice in the Perioperative Area, address addiction to personal electronic devices and provide strategies that individuals and organizations can use to minimize the patient safety risks associated with distractions from these devices.

Find these courses and explore our extensive catalog of complimentary CME and CE activities at http://www.thedoctors.com/patient-safety/education-and-cme/ondemand/.

  1. Distracted Doctoring: Returning to Patient-Centered Care in the Digital Age

https://www.amazon.com/Distracted-Doctoring-Returning-Patient-Centered-Digital/dp/331948706X

  1. Treat, Don’t Tweet: The Dangerous Rise of Social Media in the Operating Room

https://psmag.com/social-justice/treat-dont-tweet-dangerous-rise-social-media-operating-room-79061

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

 

 



Sexual Harassment Allegations in Healthcare: Rising Risks


By:  Richard Cahill, JD, vice president and associate general counsel, The Doctors Company 

Healthcare providers are not immune from the growing number of reported incidents of alleged sexual harassment in the workplace. Accusers may be employees, patients, third-party vendors or visitors. Individuals alleged to have acted inappropriately may include co-workers, both supervisors and subordinates, professional staff—and even patients. 


Repercussions of Harassment Claims 

After complaints are filed, costly and potentially embarrassing investigations are often conducted by law enforcement, human resources departments, and administrative agencies. Depending on the nature and scope of the findings, serious adverse consequences and often irreparable harm to a person’s reputation may follow.

Adopt and Enforce Zero Tolerance

Healthcare practitioners and facilities are strongly encouraged to develop and consistently enforce a zero-tolerance policy. Protocols must be written, periodically reviewed, and updated as necessary, detailing:

The types of conduct that will not be tolerated, regardless of the identity of the alleged perpetrator.
A clear methodology for reporting claimed instances of wrongdoing.
The process to be followed in investigating complaints, and rules that should be observed to help insure that confidentiality and due process are appropriately protected. 
Documentation to be completed and maintained.
The range of sanctions, up to and including termination, for both employees and patients, should the allegations ultimately be determined to be true.

Staff should receive proper training as part of the on-boarding process and on a regular basis thereafter. Offices should develop and retain attendance sign-in sheets of such training in the regular course of business to demonstrate, in the event of a subsequent problem, the good faith and due diligence as continuing efforts of the clinic, provider or facility to comply with federal and state requirements.

Be Sure You’re Covered

Healthcare providers are also strongly encouraged to consult with their personal or corporate attorney to understand the potential financial risks of claims involving allegations of sexual harassment or misconduct. They should then confer with their insurance agent or broker to determine pro-actively what coverages might be available in their respective states to protect the provider in the event of such a claim.

Most practitioners carry professional liability coverage in the event of a claim for medical malpractice. Not uncommonly, however, medical professional liability policies specifically exclude coverage for acts of sexual misconduct committed by a physician against a patient. 

It’s also prudent to consult with insurance brokers and agents about the availability of Employment Practices Liability Insurance (EPLI). EPLI may provide coverage for certain types of workplace harassment, which may include sexual misconduct involving the policy holder and an employee.

And finally, claims of inappropriate sexual behavior against a physician or other licensed healthcare practitioner may result in administrative proceedings by a state medical board, or the privileges committee of a hospital or other facility regulated by The Joint Commission. Endorsements are widely available as part of medical professional liability policies to pay legal defense costs in the event of an investigation or subsequent disciplinary hearing.


Up in the Cloud: Is It Safe to Store Protected Health Information on Remote Servers?

What exactly is the cloud? Cloud storage is a network of remote servers that allow for centralized data storage and online access to these resources. Your files are stored on a server connected to the Internet instead of being stored on your own computer’s hard drive. The cloud is convenient and cost-effective, providing a way to automatically back up your files and folders. 

Despite these benefits, recent publicity around hacks of public cloud storage websites has raised concerns about whether it is appropriate for medical practices and facilities to store health records and information in the cloud. 

Is cloud storage a safe way to store protected health information (PHI)? As with many new technologies, the safety level of the cloud, and whether it’s appropriate for use, depends on the vendor. There are several issues you will have to keep in mind:

  • Are the vendor’s security standards appropriate? You will have to research each vendor you choose. Make sure the company has a good reputation and solid security policies. 
  • How much data will you be storing? Ensure the vendor can handle the amount of data you would like to move to the cloud.
  • Ensure your data is encrypted when being uploaded to or downloaded from the cloud. This is also your responsibility. Make sure your browser or app requires an encrypted connection before you upload or download your data. 
  • Make sure your data is encrypted when stored in the cloud. Data protected by law, such as medical information or personal identifiers, should never be stored in the cloud unless the storage solution is encrypted. Only selected members of your organization should be able to decrypt the data, and your organization should create policies detailing under what circumstances information can be decrypted. 
  • Understand how access is shared in your cloud folder. Many cloud storage providers allow you to share access to your online folders. Be familiar with the details on how that sharing works. Awareness of who has access and how is critical to monitoring activity within your stored data.
  • Understand your options if the cloud provider is hacked or your data is lost. Virtually all cloud service providers require a user to sign an agreement that the user has very little, if any, remedy if a hack or a loss of data occurs. 

Cloud storage can be a valuable asset to medical practices and facilities, but make sure you have absolute confidence in the service provider’s ability to keep the data safe and secure. 

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.


Rising Number of Measles Cases Creates Numerous Patient Safety Issues

As more measles cases are diagnosed, physicians should implement effective screening protocols, infection control techniques, and patient education to reduce liability risks and promote patient safety. Since initial presenting symptoms of measles are similar to those of upper respiratory infections, measles may be misdiagnosed before a patient presents with the familiar red rash.


Exposure to measles in a medical office or facility is a serious patient safety issue because of the potential for complications from the disease, including death. The disease is airborne and extremely contagious. An infected individual is considered contagious from four days before to four days after the rash appears. The rash usually appears 14 days after a person is exposed; however, the incubation period ranges from 7 to 21 days.

Your practice can reduce liability risks and promote patient safety by:

  • Developing screening protocol for patients calling in with symptoms of upper respiratory infections and measles. Staff should query the individual regarding exposure to known measles cases, travel abroad, and immunization status.
  • Documenting all discussions with patients and parents of minors regarding measles, including the risks and benefits of inoculation. When patients/parents decline measles immunization, consider using an informed refusal form: www.thedoctors.com/ecm/groups/public/@tdc/@web/@kc/@patientsafety/documents/form/con_id_001221.pdf. Patients who contract measles and claim that their physician never discussed inoculation represent a potentially significant liability.
  • Providing serologic testing for immunity, when necessary, and documenting all related discussions with patients who are unsure of their immunity status against measles.
  • Ensuring that immunization tracking is up to date and well documented in the medical record.
  • Complying with state laws for the provision of vaccines to healthcare workers. For more information, go to www2a.cdc.gov/nip/statevaccapp/statevaccsapp/default.asp.
  • Advising those who may have come in contact with an infected individual to contact their physician immediately.
  • Ensuring that office staff members are trained to use personal protective equipment and proper isolation techniques.

Follow these tips if you or your staff suspects a patient has measles symptoms:

  • Minimize the risk of exposure to others by admitting the patient through a separate entrance and isolating him or her in an exam room. If possible, schedule the patient at the end of the day. The exam room should not be used until the following day since the virus can live on surfaces for up to two hours. Keep the exam room door closed.
  • Place a surgical mask on the patient and ensure that all office staff members wear protective equipment.
  • Follow standard disinfection and sterilization procedures for exam rooms.
  • Report suspected cases to the local health department.
  • Consider making post-exposure prophylaxis available to those who have been exposed. Post-exposure vaccination can be effective in preventing measles in some individuals. As an alternative, Immunoglobulin, if administered within six days, can offer some protection.

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety


Communication Is Key to Improving Diabetic Patient Outcomes and Reducing Liability


Because diabetes has the potential for serious complications and requires immense involvement by patients and physicians for successful outcomes, healthcare professionals who treat diabetic patients may be at risk for malpractice lawsuits.

In a study of claims closed from 2007 to 2013, The Doctors Company identified four common allegations made by patients with diabetes: improper management of treatment (37 percent), failure or delay in diagnosis (31 percent), failure to treat (9 percent), and improper management of medication regimens (6 percent).  

Diabetic patients’ treatment is often managed by a multidisciplinary care team, which may include a primary care physician, endocrinologist, dietician, ophthalmologist, podiatrist, and dentist. When patients file claims, it’s not uncommon for them to name the entire care team in the complaint, alleging failure to properly diagnose, supervise, monitor, and/or treat their disease.  

To promote patient safety, the healthcare team should engage the patient in collaborative care planning and problem solving to produce an individualized care plan as well as team support when problems are encountered. Other ways to promote patient safety and mitigate the risk of malpractice claims related to diabetes care are: 

  • Communicate. Talking openly with diabetic patients about their condition and encouraging them to take an active role in decision making enhances patient safety. 

- Overcome patients’ fears about their disease by taking time to answer questions.
- Discuss all associated risk factors, including weight gain. The American Medical 
  Association and American Diabetes Association have resources available to help physicians
  talk to their patients 
about weight and diabetes.
- Provide written instructions and information about adverse effects for prescription drugs
  and 
complex prescription drug regimens.
- Communicate with the patient and prepare written information in the language and at the 
  literacy level that the patient understands.
- Ask patients to repeat the information shared, not just whether they understand what 
  they have been told.

  • Educate. Educate patients about the importance of self-management to help increase their compliance and to reduce the risk of patients attributing their injuries to substandard care. Diabetic patients should be able to articulate the importance of lab tests, medication management, diet, and exercise. Barriers to self-management such as financial issues or lack of social support, healthcare literacy, and patient-caregiver relationships should be assessed.
  • Document. Document any and all patient interactions and discussions regarding the patient’s condition, including diagnosis, specialist referrals, and treatment options.
  • Manage care. Implement a program that ensures timely follow-up when a patient fails to schedule an appointment, misses an appointment, or cancels an appointment and does not reschedule. Failure to follow up and provide intensive patient management can lead to missed or delayed diagnoses, accelerated disease symptoms, morbidity, and/or mortality. 

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.


The Doctors Company Risk Tip: Including Risk Management in Your Vacation Planning Allows You to Relax

Because liability never takes a holiday, your vacation plans should include medical coverage arrangements for your practice, particularly when you use locum tenens. The following tips will help reduce risks in your practice and promote the safety of your patients as you plan your vacation:

  • Review managed care contracts for relevant coverage requirements. Some managed care contracts contain very specific language on this topic and many contain indemnification clauses that could expose you to the liability of the covering physician (as well as breach of contract). 
  • Whenever possible, make secondary coverage arrangements. Confirm coverage arrangements via e-mail or fax with the locum tenens who are covering your practice in order to avoid misunderstandings, possible uncertainty of dates or time frame, and exposure to abandonment.
  • Ensure that the practice coverage arrangements include an understanding about patient billing practices in conjunction with any managed care contracts or plans. 
  • Choose covering physicians who share your medical specialty and have privileges at the same hospitals that you do. 
  • Determine if covering physicians carry professional liability coverage and the limits of such coverage. While asking these questions could be awkward, you may be required to ask under certain managed care plans, provider agreements, and hospital bylaws.
  • Before leaving on vacation, prepare a list of patients who are hospitalized or are in the midst of diagnostic work-up, or who have special medical problems or needs. Give this information to the covering physicians and document any specific advice you provide. 
  • Inform the attending physicians or hospitalists of any hospitalized patients you are following about your coverage arrangements, and document the hospital chart to reflect these conversations. 
  • Advise your patients of the coverage arrangements and give them the covering physicians’ names.
  • Make each hospital where you have on-call responsibilities aware of the dates of your unavailability and the identity and phone numbers of the covering physicians. Give similar notice to your answering service and office staff.
Upon returning from vacation, promptly confer with all covering physicians. Document what you were told by the covering physicians about any significant developments in patients’ clinical course or treatment while you were away. 

Consider implementing these fundamental loss prevention measures for even brief periods when you are unavailable, such as observance of religious holidays, attending medical conferences, personal illness, or a long weekend. Unfortunately, vulnerability to claims is not diminished on these occasions. 

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.

The Doctors Company Risk Tip: Undiagnosed Heart Disease in Women

Differences in the early symptoms and signs of an impending heart attack in women may make diagnosis more difficult compared to men. 

In a study of closed medical malpractice claims involving undiagnosed heart disease in women, The Doctors Company found that in 61 percent of claims the patient died when her heart condition was not correctly diagnosed and 33 percent had heart muscle damage from myocardial infarction. 

In the following case, failure to diagnose acute myocardial infarction resulted in death:

A 47-year-old obese woman presented to her PCP complaining of a burning sensation in her chest after eating. The patient reported a similar episode the prior day after eating lunch as well as increased heartburn over the last few weeks.

A review of the medical record reflected elevated blood pressures over the past six months and an elevated cholesterol level of 237 (mg/dl). On the day of the exam, her blood pressure was 160/90. She smoked, drank alcohol socially, and was unaware of a family history of coronary artery disease. A heart exam revealed normal rate and rhythm. The physician noted that the patient appeared diaphoretic; however, she wasn’t in acute distress and was pain-free throughout the examination. An ECG revealed a left bundle branch block. Prior ECGs were not available for comparison. Suspecting reflux esophagitis (heartburn), the PCP advised the patient to take an antacid and to return if the symptoms continued.

Two days later, the patient called her PCP’s office stating that her chest burning sensation continued. The nurse advised her to continue taking the antacid and scheduled an office appointment for the following day. The nurse advised the patient to go to the ED if she developed chest pain. 

That night, the woman awoke with chest pain, nausea, and vomiting. She was taken to the ED for emergeny coronary angiography, but died shortly after arrival. 


To avoid such risks:

 

  • Rule out myocardial infarction before arriving at a GI-related diagnosis such as gastric reflux as the cause of chest pain or discomfort. 
  • Consider cardiac risk factors such as obesity, smoking, hypertension, and hyperlipidemia. 
  • Offer patients same-day appointments when they complain of continued symptoms for which they were recently seen. If this is not possible, send them to the ED and document this in the medical record.
  • Develop a written chest pain protocol. 

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.


The Doctors Company Risk Tip: Medical Clearance Does Not Clear the Patient or Physician of Risks

“Medical clearance” is when a surgeon requests clearance from an assessing physician before performing surgery on a patient. Cardiac risk is the number one reason to request medical clearance, but other risks that call for medical clearance include congestive heart failure, pulmonary embolism, anticoagulation, obesity, and high blood pressure. 

Anticoagulants, for example, are often an issue in surgical claims. If the patient is taking anticoagulants, the surgeon and the physician should agree on the best approach for that specific patient. They may discuss changes in medical management that should be made to decrease risk. If they believe the patient is at risk from a respiratory perspective, the focus may be on early mobilization, incentive spirometry, and respiratory treatment.

To avoid malpractice risks, consider the following tips when dealing with medical clearance:

  • Determine which patients need medical clearance. The surgeon should assess the type of surgery and its associated risks and the health of the patient. Healthy patients with no underlying conditions who are undergoing fairly low-risk procedures don’t routinely need medical clearance. 
  • Provide appropriate information. Problems can arise when the surgeon does not provide enough information to the assessing physician about the surgery being proposed. The surgeon should provide information to the assessing physician about the type of surgery, how long it will take, what kind of anesthesia is anticipated, how long the patient will be immobile, what is involved in rehabilitation, and what the recovery period looks like. The assessing physician should take that information into consideration, along with exam results and knowledge of the patient, to determine if the patient is at increased risk.
  • Develop a plan to mitigate risks. The surgeon and the assessing physician should work together to determine the steps to take to mitigate risk preoperatively, intraoperatively, and postoperatively. For example, they should agree about which medications to stop preoperatively and which to continue. 

There is no standard medical clearance process. Physicians should be aware of when a medical clearance would be indicated and have a good process to ensure it’s done.

Medical clearance is a misnomer because it implies that the patient is cleared and there are no risks. No patient is free of risk when undergoing a procedure. The goals of the assessment are to determine the level of risk and to identify opportunities to mitigate risk—with the surgeon and the assessing physician working in concert. The decision about whether to proceed with the operation belongs to the surgeon and the patient.

Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.


"Risk Tip" from The Doctors Company - Be Aware of Risks for BRCA-Based Breast Cancer

Avoid Missed or Delayed Diagnosis by Being Aware of Risks for BRCA-Based Breast Cancer

Recent news coverage has brought BRCA gene-based breast cancer into the spotlight. Actress Angelina Jolie's decision to get a preventive double mastectomy after testing positive for the BRCA gene may cause patients to ask physicians if they are at risk. Physicians should be aware of the risk factors for BRCA gene-based cancer in order to identify those who need testing and to avoid delayed or missed diagnosis.
 
A recent malpractice case highlights the failure of missing an early diagnosis. A 33-year-old woman had two female relatives, including her mother, who had breast cancer in their forties. At 31, she began getting annual screening mammograms, which showed dense breasts. She complained of a small palpable mass. However, no mass was seen on a mammogram, and the diagnosis was fibrocystic changes. No additional tests were ordered. Within six months, the mass was enlarging, and she was diagnosed with infiltrating ductal cancer that had advanced from a Stage I to a Stage III. Based on her history, she should have been tested for the BRCA mutation and given various treatment options. Additionally, no ultrasounds or MRIs were done, which possibly could have detected the cancer at an earlier treatable stage.
 
A woman's risk of developing breast and/or ovarian cancer greatly increases if she inherits a BRCA1 or BRCA2 gene mutation. Widespread screening is not required because together these mutations account for only 5-10 percent of breast cancers. Those with the BRCA1 mutation have a 55-65 percent chance of developing breast cancer by age 70, and those with the BRCA2 mutation have a 45 percent chance. Women have about a 2 percent chance of getting ovarian cancer, but if they have a BRCA2 mutation, that risk increases to 40-60 percent.
 
Physicians should watch for the following BRCA mutation risk factors and discuss genetic testing with patients at risk:

  • Maternal or paternal blood relatives with breast cancer diagnosed before the age of 50.
  • Certain cancers in a patient's family, such as pancreatic, colon, or thyroid.
  • Both breast and ovarian cancer in a patient's family, especially in one individual.
  • Women in a patient's family with cancer in both breasts.
  • Patient with Ashkenazi Jewish heritage.
  • A male in the patient's family with breast cancer.     
  • Relative with BRCA1 or BRCA2 mutation.

If the patient does test positive for the BRCA mutation, it is essential to remind her that this does not indicate she will get cancer. Patients can reduce risks of cancer with prophylactic surgery, hormonal treatment, and lifestyle changes.
 
Contributed by The Doctors Company. For more patient safety articles and practice tips, visit  www.thedoctors.com/patientsafety.


Lyme Disease: Delayed Diagnosis Is Greatest Risk for Healthcare Providers

Risk Tip by The Doctors Company

Lyme disease, a bacterial tickborne disease, is one of the fastest-growing infectious diseases in the U.S. Summer is peak season, and most people are bitten by blacklegged ticks, which are small and difficult to see. Lyme disease progresses in phases: early localized disease with skin rash and flu-like symptoms, followed by disseminated disease with heart and nervous system involvement (palsy and meningitis), then late disease with severe fatigue, neurocognitive symptoms, and severe joint and muscle pain leading to physical disability. The challenge is diagnosing this disease in the early phases, when treatment is typically curative.

A claims review found that the main liability risk for Lyme disease is system issues that result in delayed diagnosis. The chief system issue is communication failure in reporting test results to the healthcare provider. In one case, the patient had ongoing headaches, nausea, and vomiting. Although the patient did not recall a recent tick bite, the patient lived in an area with a high incidence of Lyme disease. The provider ordered a Lyme screen, which was positive. A confirmatory test was also positive. The lab faxed the report to the provider and contacted the health department. However, the provider claimed he had not received test results.

The flu-like symptoms of early Lyme disease mimic a viral syndrome, so providers need to consider Lyme disease in their differential diagnosis whenever they see patients with this presentation. 

Tips to help make an early diagnosis include:

  • Because most people do not recall a tick bite, ask about recent travel or outdoor activities.
  • According to the Centers for Disease Control and Prevention (CDC), in 2011 96 percent of cases came from Connecticut, Delaware, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia, and Wisconsin.
  • In the early phases, 70 to 80 percent of patients will get a red, spreading rash that can appear anywhere on the body.
  • The classic rash has a bulls-eye appearance with a red outer ring surrounding a clear area, but the rash may not have this appearance.
  • Fatigue, chills, fever, swollen lymph nodes, headache, muscle, and joint aches are common early symptoms.
  • Early phase blood tests are typically negative because antibodies have not yet developed. Therefore, a negative test does not rule out Lyme disease.
  • Those patients who develop a rash should be treated with antibiotics.
  • Remain current on CDC guidelines regarding diagnosis and treatment.
  • Oral antibiotics commonly used with adults include doxycycline, amoxicillin, and cefuroxime axetil. For children younger than 8 years old, amoxicillin is recommended.
  • Have a system in place for following up on lab test results.
  • Advise patients to avoid tick-infested areas, use insecticides containing DEET, and conduct daily exams for ticks on themselves, their children, and their pets.
  • If they find a tick, advise patients to gently remove it with tweezers and save it for identification.
Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety

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