Download Risk Management Essentials: A Self-Study Course for Medical Office

Risk Management Essentials:
A Self-Study Course for Medical Office Staff
This activity is designed to provide risk management education to all members of the medical
office staff. Implementing the strategies and techniques outlined in this self-study course can
minimize liability in the ambulatory health care setting.
Date of release: March 2009
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Participant Instructions for
Risk Management Essentials:
A Self-Study Course for Medical Office Staff
Instructions for Completion of Self-Study Course:
1. Read the Physicians Insurance publication entitled Risk Management Essentials:
A Self-Study Course for Medical Office Staff.
2. Answer the questions in the quiz by filling in the appropriate circles on the Answer Sheet provided by the Facility Test Administrator.
3. Return your completed Answer Sheet to the Facility Test Administrator.
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Section 1
Communication and Rapport
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Whom Do Patients Trust?
Amidst the bad news in the health care community—falling reimbursement rates, costly and
complex government regulations, endless lawsuits, and soaring malpractice premiums—it is
easy to overlook items of encouraging news that emerge from time to time.
An American Bar Association survey
A consumer survey conducted by the American Bar Association Section of Litigation showed
that Americans trust physicians and the medical profession more than any other profession or
institution. The polling data, obtained by Leo J. Shapiro & Associates, posed the following question to a national sample of 300 heads of household—half male, half female: “Here is a list of
[ten] American institutions. As far as the people running these institutions are concerned, how
confident do you feel about each institution?”
Heading the list were physicians, with 50 percent of the respondents indicating they are “extremely” confident or “very” confident in physicians and the medical profession.
The federal executive branch of government and the U.S. Supreme Court tied for second at 46
percent; on the lower end of the scale were state and local courts (31 percent), federal Congress
(22 percent), and lawyers and the legal profession with a less than robust 19 percent. Sparing
lawyers the ignominy of finishing absolutely last in the ABA survey was the media, at 16 percent.
Despite the managed care revolution, and the countless other stresses and strains impacting
medicine today, the poll findings reaffirm that physicians are held in uniquely high regard.
Promoting trust in your practice
How can a physician build upon the trust patients have for them? And how can a physician
prevent a patient’s trust from crumbling? Here are three key areas to focus on with patients:
Informed consent
Busier practices and shorter medical appointments often mean the informed-consent process is
hasty, and a patient can feel confused, rushed, and out of control. To encourage a patient’s trust,
a physician can do the following:
• Take time to explain the various kinds of treatment available, including the option of no
treatment
• Take time to explain basic procedures in lay terms
• List the most frequent complications and discuss the likelihood of detrimental effects
• Never make guarantees about outcomes
• Explain the most frequent side effects of any prescribed medications
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• Encourage the patient to ask questions
By taking time with the patient, and by being open to questions, a physician can make great
strides in encouraging trust.
Working with other physicians
Some patients may trust an individual practitioner but feel wary about getting lost in the medical system. To encourage trust in a medical group, or even the medical profession as a whole,
avoid criticizing other physicians. In addition, for serious or complicated cases, talk to the patient’s other physicians regularly to establish roles, and be sure a physician talks with the patient
and family members each day. Call very ill patients at the end of the day, and ask about their
progress and concerns. For hospital patients, call their spouses or family members after morning
rounds. As so many physicians know, phone calls to patients and family members can improve
patient care and reinforce the patient-physician bond.
Telling patients about mistakes
It is important to acknowledge a medical error to the patient. Many lawsuits are initiated
because a patient feels the truth has been hidden. Juries are more understanding of physicians
who have been honest from the start and less understanding of those whose conduct suggests
a concealment of error. Please read the article Apology: The Right Thing to Do for information regarding state law and tips to enhance physician communication with patients and family
members following an adverse event. As always, if you are concerned about how to talk with
your patient about a mistake, feel free to call our Claims Department for assistance. We are here
to help you work with your patients and prevent claims.
Conclusion
The ABA survey results may carry broader significance than simply serving to remind physicians
that their efforts are appreciated. The poll results suggest that it may be the medical community
that holds the ultimate high card—the hard-earned trust of Americans. This is one claim the
plaintiff bar, despite huge successes in and out of the courtroom, cannot make. Patients who
trust their physicians are better patients and are less likely to file a claim. To strengthen your
patient’s trust, take the time to be attentive, be respectful, be honest, use lay terms, and express
empathy. Taking the time to elicit a patient’s trust can do much to further your practice and
keep the medical profession strong during these difficult times.
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Beware the Literacy Gap
A young internist had bad news to relate to his patient, an elderly farmer who sat directly
across from him in the exam room. “Jim,” began the doctor, “I’ve just received the pathology
report from the lab, and it’s positive for cancer.” Pausing for a second to assess Jim’s reaction,
the doctor was surprised when the patient announced, “Well, I guess I won’t be needing to see
you anymore,” shook the doctor’s hand, and abruptly exited the office. The doctor was puzzled
by the reaction until he later learned, so the story goes, that Jim had understood “positive” to
mean “cancer-free.”
While the tale is probably apocryphal, it is a reminder that communication mishaps between
clinician and patient have no doubt always existed. In the 1960s and 1970s, effective communication assumed increased legal significance with the recognition, state by state, of the informed-consent doctrine.
The early days
This new cause of action made it possible to sue health care providers for not adequately
disclosing information to patients concerning significant risks and complications, benefits, and
alternatives relating to a proposed treatment or procedure. Failure to give the patient enough
information to make a reasonably informed decision could subject the clinician to liability for
harm or injury—even though the treatment or procedure was clinically appropriate and performed properly.
In essence, informed-consent laws meant that clinicians had a legal obligation to act as effective patient educators. In 1972, in an often quoted and influential opinion, a federal judge wrote
that only an “exceptional” patient cannot comprehend a nontechnical explanation of therapy
alternatives, goals, and risks, adding (quite presumptuously, it might be said) that “so informing
the patient hardly taxes the physician.”1
Though the imposed informed-consent responsibilities may not have been unduly taxing in
1972, today’s task of adequately informing and advising patients is not so easy. National illiteracy is a communication obstacle that should not be overlooked.
According to the National Institute for Literacy (NIFL), year 2000 statistics indicate that 45
percent of the adult population, or 90 million people, perform at Levels 1 or 2 (8th grade or
below reading level).
Almost all adults in Level 1 can read a little but not well enough to fill out an application, read a
food label, or read a simple story to a child. Adults in Level 2 usually can perform more complex tasks such as comparing, contrasting, or integrating pieces of information, but usually not
higher-level reading and problem-solving skills. Literacy experts believe that adults with skills
at Levels 1 and 2 lack a sufficient foundation of basic skills to function successfully in our society.
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A new way to communicate
The implications for clinicians are important. Clinicians are well advised to:
• Ensure that any patient-educational materials—including handouts, discharge instructions, and consent forms—are free of unnecessary medical jargon. Necessary medical
terms should be defined in simple, ordinary language. For example, “hypertension”
should be “high blood pressure,” a “suture” should be a “stitch,” and so on. Remind
yourself and your staff that even highly educated patients may be totally unfamiliar
with medical terms.
• Use plain language when explaining clinical issues to patients. If a patient displays a
sophisticated medical vocabulary or understanding, you can instantly adjust the level of
discourse.
• Use pictures, diagrams, and anatomical models whenever possible to assist a patient’s
understanding. Many patients pretend to understand more than they do, perhaps because they are embarrassed to admit they don’t know what a stent is. Use the teach back
method giving the information, then ask the patient to explain it back to you.
Conclusion
Numerous studies indicate that patients who have a genuine understanding of a procedure or
treatment—including its risks—are much more accepting of the truth that complications can
and do occur even with the best of medical care. Taking extra care to explain medical concepts
using basic, everyday language is not being condescending. Rather, this is effective and efficient
communication, something greatly valued by patients—whether they say so or not.
1. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
2. Kirsch, I., Jungeblut, A., Jenkins, L., Kolstad, A. 1993. Adult illiteracy in America: A first look at the results of the
national adult literacy survey. Washington, D.C.: U.S. Department of Education.
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Communicating Office Policies
Setting the stage
All practices want to minimize unwanted, disruptive behavior by patients. To help avoid this
problem, practices should communicate office policies and expectations about the clinician-patient relationship early on. Following are some ideas that might help establish a positive, healthy
relationship from the start.
Educate patients
Consider providing all patients with an information brochure to include some or all of the items
below:
• A short biography of professional staff.
• Basic services provided by the practice.
• Office address and hours of operation.
• Phone numbers, including main number and appointment line (if different).
• Instructions regarding after-hours care and prescription refills.
• When to call for an appointment and when to call 911.
• Patient rights and responsibilities, including missed appointments, tardiness, and billing.
• Basic rules of behavior including child supervision in the reception area.
• Guidelines addressing the use of e-mail for communicating with clinicians and staff,
including the expected response time.
• A map locating the practice.
If you have a Web site, consider including the above information there as well. Take time to talk
with new patients about basic expectations and allow them an opportunity to ask questions.
Educate staff
In addition to making sure patients understand expectations, it is important to make sure that
everyone in the practice is on the same page.
• Encourage staff to participate in creating a safe patient-care and work environment.
• Make sure that everyone in the practice is familiar with information provided to the
patient in brochures and other documentation regularly given to patients.
• Define inappropriate behavior so that everyone can identify what is acceptable or not.
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Inappropriate behavior might include:
• Manipulation.
• Demeaning language or actions.
• Swearing.
• Threatening language or actions.
• Making sexual advances or using suggestive/vulgar language.
• Provide staff with training and strategies for dealing with inappropriate behavior when
confronted with a difficult situation.
• Utilize a system or chain of command to handle difficult patients.
• Staff should understand that they should refer the situation to the person who is
equipped to address the problem.
• Document behaviors objectively.
• Assure your staff that they will be listened to, situations addressed, and that staff will be
supported when appropriate.
• Use conflict resolution strategies to help prevent escalation.
Practice saying “No”
Finally, recognize and accept that there are limits to what can be done for patients. It is perfectly
appropriate to say “no” to a patient who is asking you to do something that is outside your limits
of expertise or level of authority. Beware of patients who insist on receiving care from you that is
medically inappropriate or beyond your expertise.
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Dealing with Noncompliant Behavior
All health care providers, regardless of specialty, encounter patients who are noncompliant with
medical advice or treatment recommendations. In many cases, the patients are not being deliberately noncompliant, and their providers can help them become more compliant.
Good communication skills, including active listening, are essential for good patient care and
compliant behavior. A provider’s choice of words, body language, and even silence all play a role
in how a patient receives the provider’s information and advice. A provider who appears rushed
and doesn’t allow a patient time to fully explain symptoms or ask questions may be setting the
patient up for failure. Other factors that can lead to patient noncompliance include the following:
• Misunderstandings due to medical terminology
• Misunderstandings due to language, a hearing disability, or mental barriers
• Patient not realizing the seriousness of the condition or urgency of the situation
• Patient not having insurance coverage or money to pay for the recommended medications, tests, or treatment
• Patient believing the treatment will be embarrassing or uncomfortable
• Patient deciding to go elsewhere for treatment
• Patient simply forgetting
It is important to provide patients with enough information regarding their condition and your
treatment recommendations, and to provide it in a format that is easy to understand. Stressing
the significance of the condition and the need for timely follow-up should help with patient
compliance.
A patient certainly has the right to refuse recommended treatment or tests. You are responsible
for informing the patient of any risks associated with a refusal of care and documenting this
discussion in the patient’s chart.
You may choose to dismiss a habitually noncompliant patient. Allowing a patient to continue
noncompliant behavior can not only be detrimental to the patient’s health but can also increase
your professional liability exposure. Any dismissal letter to the patient should include a reiteration of your treatment recommendations and the risks associated with not receiving the recommended treatment.
Generally, you can terminate your relationship with a patient at any time and for any reason.
The exceptions are that you may not stop treating a hospital inpatient, a patient in unstable condition, or a number of patients from any specially protected population or socioeconomic group.
In addition, federal and state law protecting the disabled may prevent you from discharging a
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patient whose noncompliance is the result of a physical or psychological disorder.
Risk management strategies for combating patient noncompliance
• Educate patients regarding the recommended treatment or test and why it is necessary.
• Inform patients regarding any alternatives, benefits, risks, and complications associated
with the proposed treatment or test.
• Provide clear oral and written instructions to patients, using interpreters as necessary.
• Emphasize the seriousness of the condition and the urgency of the recommended
treatment or test.
• Schedule referral and follow-up appointments before the patient leaves.
• Place reminder calls to patients regarding upcoming appointments.
• Follow up on failed appointments.
• Document all noncompliant behavior including no-shows, cancellations without reappointments, and failure to follow recommendations regarding treatment, diagnostic
studies, referrals to specialists, medication use, etc.
It is reasonable to expect a patient to share responsibility for compliance with your follow-up
recommendations. However, court decisions nationwide have placed significant responsibility
for patient follow-up with the health care provider. In the event of a lawsuit, the most crucial
element in your defense is documentation in the medical record indicating your instructions
and advice to the patient regarding treatment recommendations, referrals, and follow-up care.
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Understanding the Difficult Patient
In the delivery of high-quality medical care, physicians are challenged by time demands, business and financial demands, maintaining clinical competence, the erosion of autonomy, and patient demands and expectations. While all of these can be difficult to manage, few challenges are
more frustrating than dealing with a difficult patient. Difficult patients may be routinely angry,
demanding, manipulative, controlling, noncompliant, or constantly complaining. Unfortunately,
these behaviors are not always reserved for private, behind-closed-doors meetings but are often
displayed in your busy reception area to the dismay of your other patients. Difficult patients can
have a negative impact on the physician, office staff, and other patients. Moreover, they can lead
to a breakdown in the physician-patient relationship—resulting in mistrust, poor communication, and perhaps even a malpractice claim. This article will explore what makes some patients
difficult, why they act the way they do, and how to prevent conflicts.
Why not terminate?
When faced with a troublesome patient, you may want to simply terminate the patient from the
practice. However, while termination may be the action that is ultimately necessary, it should
not be the automatic response. We strongly encourage you to take some time to work with the
unhappy patient. Your goal will be to resolve the immediate issues, communicate your expectations of patient behavior, and discuss how you and your patient will address future problems. If
successful, you will have reduced the likelihood that this angry patient will become a plaintiff
in a malpractice action, and the patient will see that his or her unacceptable behavior is self-destructive and unlikely to bring about the desired results.
When is a patient considered “difficult”?
From a physician’s point of view, difficult patients are those who:
• Fail to follow directions
• Generally ignore the rules of the practice
• Ignore their health or fail to listen to advice
• Utilize more time than necessary
• Become demanding
• Use inappropriate language with the staff
• Threaten staff or physicians
The abusive or threatening patient needs to learn early on in the relationship that these behaviors must not continue. If not addressed immediately, these behaviors often escalate. The
verbally abusive patient should improve his or her behavior immediately or be discharged from
the practice.
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For the patient who threatens, ask yourself: Did the patient physically threaten a member of the
health care team, or was it simply a threat to “file a complaint with a supervisor”?
Threats of violence should never be tolerated; immediate dismissal is an appropriate response. If
necessary, do not hesitate to notify law enforcement and warn those within your group that may
come into contact with this patient.
Why is the patient being so difficult?
Several surveys conclude that patient dissatisfaction commonly stems from patients’ perceptions that they are being rushed through the office visit, that their concerns are not being addressed, and that the provider has little interest in their problems. Another common source of
dissatisfaction is the lack of information regarding treatment, tests, or prognosis. This feeling of
being “unimportant” or “discounted” is often exacerbated by a long wait in the reception area
followed by a long wait in the examination room before the provider ever appears. In addition, patients often report that staff rudeness and “billing issues” have been the catalysts for an
unpleasant exchange.
Other patients may become difficult patients because of overwhelming fear, high stress, confusion, depression, or unrealistic expectations. Even more difficult to manage are the patients
afflicted with a personality disorder such as the dependent personality, the antisocial personality,
the borderline personality, and the addicted personality. For these patients, appropriate referral
to mental health professionals or behavioral health specialists may be required to assist you in
delivery of care.
How can I prevent a patient from becoming difficult?
One very effective tool to prevent good patients from becoming difficult is patient education—
at the beginning of the physician-patient relationship—regarding office policies and expectations. Efforts to educate patients can dramatically reduce the many misunderstandings that
typically occur when expectations, protocols, and office policies are not adequately communicated to patients. One way to communicate to new patients is through a patient-information
brochure. This can be used to inform patients about services offered and office policies regarding
hours of operation, phone numbers, no-shows and tardiness, after-hours care, prescription-refill
protocol, billing, and patient rights and responsibilities. In addition, a brief biography of the
professional staff creates an instant familiarity that reduces patient anxiety and assists in building rapport. A Web site can also communicate these policies. Finally, it is always a good idea to
allow additional time for a new patient during the first visit; with more time you can familiarize
the patient with your practice and answer any questions.
To promote consistency in the information provided to your patients, be sure that all of your office staff fully understands your office policies, expectations, and protocols.
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How to Work with a Difficult Patient
In the middle of a very busy day, you find yourself in the exam room face to face with a very
angry patient who complains about the “attitude” of your front office staff, how difficult it is to
see you, and how your last treatment was unsuccessful. You have not had any bad experiences
with this patient in the past, but it is clear the patient is now agitated and aggressive. Caught off
guard, you may feel a bit confused and defensive at first, but as the patient continues complaining, you become angry. What is your plan to deal with this situation? To simply fold your arms,
stare at the floor, and listen in silence? To aggressively challenge the patient point by point and
defend yourself and your staff? To ask the patient to leave your office and never return?
Granted, it’s very difficult to fight our natural instincts when we feel we are being attacked. But
it is important to remember that, more often than not, the real reasons for this patient’s behavior are often far removed from anything you or your staff did. Often the patient is reacting to a
variety of stressors and you happened to be in the right place at the wrong time—a convenient
target! Or maybe the patient is legitimately frustrated about your staff, your treatment, or your
office policies. The manner in which you initially respond to this patient’s anger will have a
great impact on the ultimate outcome of this situation. Regardless of the merit of the accusations, the techniques you employ to deal with this incident are the same. Here is a list of timetested techniques for managing conflict:
• Remain calm in tone and posture. An angry patient will tend to mirror your demeanor.
Be objective; do not take the anger personally. Expressing an angry or defensive tone
will effectively end the communication. There is nothing to be gained by jousting with
the patient.
• Listen, listen, listen. It is very important that you try to identify the real issue that is
frustrating your patient. Careful listening involves the use of appropriate body language
that demonstrates you are focusing on the patient’s statements. Nodding, maintaining
eye contact, and sitting at the same level as the patient demonstrate a caring attitude
and help defuse anger.
• Be patient. Avoid interruptions and do not tell the patient to “get to the point.” Some
patients take a while to express themselves.
• Paraphrase the patient’s statements back to him or her to confirm you understand. Periodically repeat back what you have heard until you are satisfied the patient is finished.
• Confirm and validate. You can validate the patient’s feelings without admitting wrongdoing or agreeing with the patient. Statements such as “You sound upset about the slow
healing of your infection” are fine and communicate your understanding. If it is clear the
patient has a valid concern, acknowledge it. The facts are the facts.
• Be honest. Tell the patient exactly what options are available, what you can do, and—
importantly—what you cannot or will not do. If another member of your practice
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needs to be involved in a decision, let the patient know that you need to consult with
that person before providing an answer.
• Follow through. Do not forget promises you have made. The patient will not forget. If
you agree to take action, take it.
Certainly, all staff should be familiar with these techniques. You may wish to designate key
individuals within your practice to intervene when these situations develop. If you have one
point person, be sure to designate an alternate.
Once a patient has created a problem, you need to decide whether this is a patient you wish to
rehabilitate or terminate from care. If you choose to rehabilitate the patient, the point person
should meet with the patient and explain the practice’s expectations. Here are guidelines for
the meeting:
• Clearly identify the inappropriate behavior or actions. Explain why the behavior is not
acceptable.
• Listen carefully to the patient’s response to identify any unresolved or previously unidentified issues.
• Describe and document your expectations of the patient. Also document the patient’s
acceptance or rejection of your expectations.
• Communicate these expectations to the staff so that everyone is on the same page
regarding this patient.
• Consider limiting the patient’s staff contact to the designated point person to ensure
compliance.
• Consider using a “patient contract” or “patient-care agreement” that memorializes the
patient agreements. The contract should identify the consequences—such as termination of care—for breaching the terms.
Addressing these issues is important for the overall health of your practice. The time you invest
in dealing with these issues will provide many rewards, including office harmony and happier
patients.
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Patient Care Agreements
While clear and early communication can prevent a lot of unwanted or inappropriate behavior,
there may be times when you will be faced with the stress of a difficult patient-care situation.
Frequent lateness, aggressive behavior, drug-seeking behavior, or nonadherence to medical advice are among the challenges commonly faced in medical practices. Family members, too, may
challenge every medical recommendation you make. These situations call for a well-planned
response to avoid a drain on time and energy, as well as further erosion in the clinician-patient
relationship.
Consideration should be given to whether to continue treating the patient. However, in some
cases, terminating the patient relationship may not be a viable option. For example, the patient
may have an acute condition that requires treatment—and no other provider in your area agrees
to accept the care of the patient.
Effectively working with difficult patient-care situations requires a team effort. We recommend
that clinicians consult with all members of the patient’s health care team to develop a management plan. It might be advisable to include consultation with specialists as appropriate (for
example, it may be prudent to consult a social worker, behavioral specialist, or psychiatrist).
You might want to consider implementation of a patient-care agreement to strengthen your
health care team’s efforts to maintain a professional and safe environment. Asking a patient to
sign an agreement communicates to the patient that you and the rest of the health care team are
serious about making the relationship work.
A patient-care agreement is a unique contract negotiated between the care provider and individual patient for the purpose of addressing issues specific to that relationship. It should define
ground rules for continued care, expectations about future behavior, and consequences for
failure to comply with the agreed terms.
Following are some additional strategies to consider when addressing these situations. These
recommendations are geared toward helping the health care team manage the provider-patient
relationship professionally.
• Clearly identify and define the noncompliant or inappropriate behaviors.
• Develop a strategy for stopping or modifying the behavior.
• Clearly define the objectives of the strategy for later reference.
• Make sure that the patient receives a consistent message from everyone on the team,
including front office staff.
• As a part of the plan, identify a “point person”—someone who can oversee and coordinate communication and health care team efforts to work with the patient.
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• Consider using a patient-care agreement to ensure patient understanding of expectations, including what is acceptable and what is unacceptable.
• After a period of time, evaluate whether implementation of the strategy is working. Are
the goals and objectives previously identified being met? Is there improvement in the
patient-care relationship?
• Modify the strategy as necessary.
Physicians Insurance risk management consultants are available to provide assistance regarding
these issues, as each patient situation needs to be evaluated on a case-by-case basis.
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Your Patient Has an Adverse Outcome:
What Now?
One certainty in the practice of medicine is that there will always be a percentage of cases where
treatment does not result in the perfect outcome. Regardless of the clinical expertise of the provider, adverse outcomes and unexpected results can and do occur. Most often, these events are
not the result of substandard care or malpractice but are the known potential risks or complications associated with the procedure, test, or treatment.
Patients have high expectations and are understandably disappointed when adverse outcomes
are the result. However, a claim or lawsuit is not the predestined result of a complication with
care. Experience has shown that how the provider responds to the event has the greatest impact
on whether the matter will result in a claim. The following tips are offered to assist providers in
dealing successfully with patients who have experienced a less-than-perfect result:
Communicate
As soon as possible, fully inform the patient of the complication using language the patient understands. Provide a basic outline of what has occurred, avoiding overly technical medical terminology. Certainly, communicating this information to the patient is much easier if good informed
consent was obtained prior to treatment. Good informed consent allows the physician to open
the conversation with a statement such as “Well, unfortunately, one of the potential complications we discussed did occur…. Now this is where we go from here….”
Be open and available
Do not avoid the patient or the patient’s family members. Avoiding difficult situations is a natural human reaction, and sharing bad news about an adverse outcome or complication in treatment is difficult. It is equally true that the patient’s actual reaction is typically much better than
the anticipated one. With an appropriate explanation, patients can understand and accept that
bad outcomes do occur.
What they do not accept is poor communication. A physician who communicates poorly after
a bad outcome is typically seen as uncaring, and it is the primary reason patients pursue the legal
option. Patients want answers and often feel that litigation is their only recourse.
Express your concern
Demonstrate your empathy and concern for the patient. Where circumstances warrant, and after
due reflection, an apology may be appropriate. In Washington State, apologies, to include an admission of error, are not admissible evidence if made within 30 days of the bad outcome. Doing
so is not an admission of liability. Your outward expressions of care and concern are extremely
important to the patient and can actually strengthen the physician-patient relationship. Many
patients have more confidence in their providers after working through such an event—because
their providers demonstrated care and concern.
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Do not blame others
Do not point fingers at others involved in the patient’s care. Despite your concerns regarding
another provider’s treatment, consider whether it is fair and professional to critique another’s
treatment without knowing all the circumstances the provider faced. Follow established procedures for quality improvement and peer review when you have such concerns. Remember, it is
never useful to place blame or incite the patient. Doing so usually results in a distrustful patient
and a lawsuit rather than a patient ready and willing to focus on treatment for the complication.
Present a plan
Outline for the patient your plan for continued treatment in the near and long term. Let the
patient know you have thoroughly considered all relevant options and have a detailed plan if
additional treatment is necessary.
Does the patient understand?
After your presentation, question your patient on the key points. Be certain he or she has a clear
understanding of what has occurred and what the future course of action entails.
Document
Clearly document your conversations with the patient and family members, their response to
the information, and the agreed-upon (or proposed) plan of action.
Conclusion
Give us a call! If you are concerned about a particular situation, please contact the Risk Management Department to discuss it. We are here to help, and we appreciate the opportunity to assist
you. Our risk management consultants are available for telephone or in-person consultations to
review matters of concern and offer helpful suggestions.
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Apology: The Right Thing to Do
In this day and age, with physicians feeling besieged by malpractice claims and the fear of litigation,
many physicians firmly believe that apologizing for a bad outcome in care is equivalent to an admission of guilt or wrongdoing. The obvious concern is that well-intended expressions of empathy will
later be used as evidence against the physicians by the very patients they were trying to console!
These same physicians naturally assume that their insurance company would not want them apologizing for a poor result or revealing information to a patient about what went wrong and why. Certainly, when actual medical errors do occur, the appropriate response should always be “deny and
defend,” right?
Actually, nothing could be further from the truth. In our view, it is always appropriate to be straightforward with the patient regarding all aspects of care. This applies in all circumstances, whether
you are dealing with a bad outcome or actual patient injury resulting from a medical error. The facts
regarding your care are what they are. The facts will not change and they should be shared with the
patient. In short, your patients have a right to all of the information you possess relevant to their
medical condition.
Our experience at Physicians Insurance clearly demonstrates that an authentic and sincere apology or
expression of caring and concern over the patient’s outcome has a tremendous influence in strengthening the physician-patient relationship and promoting patient trust. Importantly, this enhanced
trust greatly reduces the likelihood that the patient will seek answers through the financially and
emotionally taxing legal system.
Most often, it is a lack of communication or a physician’s failure to commiserate that makes a patient
believe the physician is unconcerned. Then the patient considers ways to take control of the situation to get the physician’s attention. Typically, this involves hiring a plaintiff attorney to “get some
answers”—and then the misery begins!
Fortunately, the State of Washington also believes that saying you are sorry is a good thing to do.
House Bill 2292, a compromise measure enacted in the wake of the I-330/I-336 stalemate, became
effective June 7, 2006. While the complete bill contains several worthy provisions, it is arguably the
hard-won apology section that promises to best serve physicians and patients in Washington State.
Before the passage of the apology language in HB 2292 (now embodied into statutory law as RCW
5.64.010), existing law held that furnishing or offering to pay an injured patient’s medical expenses
could not be used against a physician as evidence of liability. In 2002, the legislature extended similar
protections to a physician’s expression of sympathy. A direct admission of fault, however, remained
admissible against the physician to prove liability.
The new provisions
Now, as a result of the new law, this unwelcome legal hazard has been eliminated (subject to certain
conditions). The newly enacted protections of RCW 5.64.010, slightly condensed, renumbered, and
paraphrased for purposes of readability, provide that:
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• In a civil action against a health care provider for personal injuries based upon alleged
professional negligence, any statement, affirmation, gesture, or conduct expressing
apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of
benevolence, is not admissible as evidence if:
a. It was conveyed by a health care provider to the injured person, or to a person
authorized to provide informed consent on behalf of an incompetent patient,
within thirty days of the act or omission that is the basis for the allegation of
professional negligence, or within thirty days of the time the health care provider
discovered the act or omission that is the basis for the allegation of professional
negligence, whichever period expires later; and
b. It relates to the discomfort, pain, suffering, injury, or death of the injured person
as the result of the alleged professional negligence.
How the new law affects your practice
It is important to keep the following points in mind:
• The language in the law’s first paragraph is sweeping and comprehensive. It is intended
to enhance physician communication with patients and family members by removing the burden of wondering whether words of apology will someday be recited in a
courtroom.
• Remember that even in the absence of special legal protection—where the thirty-day
window has been exceeded, for example—the physician’s ethical duties to the patient
remain supreme. If in doubt as to the correct course of action, get advice from risk management and other appropriate sources, perhaps the hospital ethicist.
• The thirty-day time limit for apology/admission protection should afford ample time
for action. If apologies are indicated, the sooner the better. Take due care, however, to
first coordinate with other providers, confer with risk management, and, at all costs,
avoid finger-pointing.
• The thirty-day time period commences with either the bad outcome or when the
physician discovers his or her involvement in a bad outcome, whichever is later. With
regard to the latter scenario, in which the physician is not immediately aware there is a
problem, the chart should reflect the date of notification. Here is an example of a good
chart note:
Received call from Dr. Smith today, advising patient—now living in Portland—may
have experienced complication relating to procedure I performed 4/12/05 . . . records on
way, I’ll review and contact patient.
A chart entry like the above is likely to eliminate the need for otherwise unnecessary
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legal wrangling relating to the question “When did the clock start?” It also simplifies
statute of limitation issues.
The apology itself
A physician’s sincere expression of regret following a poor outcome or distressing patient
experience is a powerful means of enhancing trust. In a case where a mistake was clearly made,
the patient should be told this forthrightly, with good eye contact. Here is an example of a good
forthright apology:
I am very sorry this happened, that you’ve had to go through this ordeal. John, the medication you
received was due to a prescription error on my part. It was my fault, and I feel terrible about it.
Somehow I overlooked the information you had provided about your drug allergy. It shouldn’t
have happened, and we’re reviewing the case to make sure something like this doesn’t happen
again. You’re going to be just fine, but it looks like you’ll need to spend at least one more night in the
hospital. John, do you have any questions for me?
A sincere apology and admission can prevent, rather than ignite, a lawsuit—a fact that plaintiff
lawyers acknowledge. The facts do not change, and patients appreciate honesty and candor.
Many lawsuits are filed because physician communication was lacking when it was needed most.
Lawsuits aside, an apology is the right thing to do when things go awry, and this is true regardless
of whether the apology happens within the thirty-day window.
Idaho and Oregon apology guidelines
On July 1, 2006, Idaho joined the two-dozen or so states which had recently enacted “apology”
legislation. As a result, Idaho physicians, and other health care professionals, are able to offer
apologies without fearing that well-intended words could be used against them in a medical
malpractice lawsuit.
The new statute, IC (Idaho Code) 9-207, does not limit protection to only those apologies made
within a thirty-day window, or other specified time-frame. IC 9-207 reads in part:
“…all statements…gestures or conduct expressing apology, sympathy, commiseration… or a general sense of benevolence, including any accompanying explanation… shall be inadmissible as
evidence for any reason including… as an admission of liability…”
In Oregon, physicians may make an apology or an expression of regret regarding a bad outcome
without it being used against the physician in any civil or administrative action. However, an
admission of fault will be admissible.
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Section 2
Medical Records—
Documentation and Release
23
Medical Records: Definition, Organization,
and Charting
The medical record is critical to good patient medical care and to the successful defense of
malpractice lawsuits when they occur. As patient loads increase and medicine becomes more
complex, both the patient and physician benefit from the complete, accurate, legible, and
contemporaneous documentation of the medical care provided. From a patient care standpoint,
medical records are the basis upon which the quality of patient care is judged by hospitals, professional review organizations, third-party payers, governmental agencies, and medical licensing
boards. From a malpractice perspective, cases that appear defensible on clinical grounds become indefensible in court when inadequate records are introduced as evidence. Similarly, cases
of severe damages have been won with comprehensive and meticulously documented records.
Good charting is one of the most important patient care and medical risk management skills a
physician can develop.
What is a complete medical record?
Laws at both the state and federal level define what constitutes a medical record. Essentially, a
complete medical record, based on these laws, is a collection of information that is created by a
health care provider or the patient, including information collected from multiple providers or
other sources, and relates to:
• The physical, mental, or behavioral health or condition of an individual whether in the
past, present, or future
• The provision of health care to an individual
• Any information used, in whole or in part, to make decisions about individuals
• Billing and payment information for the provision of health care to an individual
• Enrollment, payment, claims, education, and case or medical management by or for a
health plan
The ideal office medical record contains the following:
• Patient information sheet listing the patient’s name, date of birth, social security number or patient identification number, address, insurance carrier, and financial and emergency contact data
• Health history questionnaire
• Current problem list
• Current medication flowsheet listing past and present medications and indicating drug
allergies, sensitivities, or adverse reactions
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• Comprehensive medical, family, and psychosocial history
• Dictated or legibly written progress notes in the SOAP or other problem-oriented format for each patient visit including references to patient education materials provided
and informed consent discussions
• Laboratory, imaging, or other diagnostic reports;
• Consultation requests and reports;
• Copies of hospital or other health care provider records; and
• Correspondence about the patient.
You can judge the soundness of your medical record by asking yourself whether a colleague
could provide immediate and appropriate medical care in your absence with only your chart for
assistance.
Organization
To ensure easy review of a patient’s medical information, you should organize your medical
records thoughtfully. Each patient should have a separate chart, as should each member of a
family. Moreover, each patient file should have its own file jacket with fasteners to secure all
papers. A commonly used filing system groups all progress notes on one side of the folder or
jacket and all laboratory, consult, and other reports or records on the other. To further organize
the chart, we suggest you use color-coding or dividers. In addition, each office or clinic should
adopt a standard filing system for all charts so that the medical and office staff can quickly locate
information in any given chart.
Charting
For most specialties, Physicians Insurance recommends adopting a medical record that can
be dictated and transcribed within 48 hours. Because the average individual talks much faster
than he or she writes, a dictated record is generally more comprehensive and can provide better documentation of patient visits. Furthermore, dictation eliminates a major impediment to
patient care and malpractice defense: illegible handwriting. Lawsuits have been lost or settled
for substantial amounts because a single chart entry was illegible or subject to several possible
interpretations.
If your office cannot use a dictated medical record, all chart entries should be legibly printed in
black ink to provide an easily read chart that will photocopy successfully. Each time you document a patient’s chart, keep in mind that photocopies of your records will be sent to other
health care providers, governmental agencies, or lawyers.
A progress note, which should be dictated or written as soon as possible after seeing a patient,
must be a complete record of a patient visit. Each note should be filed in chronological order,
and each page should include the patient’s name or clinic identification number. Additionally,
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each chart entry should display the complete date (month, day, and year). The chart should
document all general and limited examinations, as well as all positive and negative findings relating to the patient’s complaint or condition.
Record and initial in the chart all substantive telephone contacts, patient instructions, medication refills, missed appointments, and failures to follow medical advice. Develop guidelines stating which medications can be refilled by office staff, which medication refills require physician
intervention, and which patient calls or problems should be brought to the physician’s immediate attention. You may also wish to design written instructions for specific illnesses, injuries, or
procedures.
Devise a system to ensure that physicians initial all laboratory, imaging, correspondence, consults, and other reports prior to filing. Lawsuits have been lost or settled for substantial amounts
because the physician never saw a test result. If stat tests are ordered, the physician should
receive the results as soon as possible for immediate follow-up.
The medical record should always be an objective record of facts, impressions, clinical judgment, and treatment. To prevent a lawsuit for libel, you should avoid any subjective or pejorative
remarks about a patient or about other providers.
Use commonly accepted and understood abbreviations and acronyms. Be meticulous in charting by printing drug names, doses, and regimens. As you can imagine, a misplaced decimal point
or illegible prescription can have tragic consequences for a patient.
If you need to make a correction on your chart, you should draw a single line through the error, add the correct information, and date and initial the change. If you find you have omitted
information, you should make an addendum after the last chart entry. Identify this as an addendum and date and initial it. You should never obliterate, cut out, erase, or overwrite an entry,
nor should you squeeze words into an existing chart entry. If litigation were to ensue, improper
record changes, corrections, or alterations could destroy the defensibility of your case.
Electronic medical records
As the use of electronic medical records (EMR) becomes more widespread, questions may arise
about how a record comprised of so many individual data fields differs from a paper chart. The
fact is that a well-designed EMR will collect all of the information required to meet the definition of a complete record. There are a few considerations to be made, however, when working
with an EMR.
Some systems will allow for lab results to be electronically submitted and reported from within
the EMR. Since the provider won’t be able to sign off on the lab or report as in a paper system,
be sure to have protocols in place that will effectively communicate receipt of all results to all
appropriate personnel in a manner that will reflect the urgency of the information as well as allow for quick response and documentation of decisions and actions taken. It is likely that some
reports or studies will still be in a hard-copy format. In order to make sure that findings are
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communicated consistently regardless of whether they are submitted in electronic or hard-copy
format, develop a policy and procedure to ensure that clinicians are notified of the hard-copy
results in a timely manner, that they sign off on the report or consults, and that the original is either imaged or stored in such a manner that will preserve the quality and integrity of the record.
Just as with a paper system, sometimes corrections will need to be made. How this is done
electronically will vary depending on the EMR you are using. However, in order for the record
to remain credible, there are some things that need to be addressed by the EMR configuration.
Make sure that entries cannot be altered without an audit trail that identifies the modification
made, by whom, and the time of alteration. If possible, the reason for the need to modify should
also be documented. Restrict the ability to alter any entry to essential personnel only. If chart
information needs to be appended, create a new entry and reference the original chart entry to
avoid the appearance of inappropriate alteration.
Remember that many EMRs have built-in tools not available in a paper record such as point-ofcare decision aids or prompts, reminder messages, or warnings. These tools can be very helpful.
However, be aware that how a user responds to or uses these messages will also become a part of
the electronic record. If your practice chooses to use these tools, be sure to activate only those
features that will be used consistently. Have policies and procedures in place regarding how
clinical decisions to override or ignore reminders, warnings, or restrictions should be documented.
Conclusion
Having a well organized, up-to-date, and consistent chart is essential for quality patient care and
effective defensibility against malpractice claims. Physicians Insurance has developed a list of
guidelines to help health care professionals document effectively. Consider the following when
developing documentation guidelines for your organization:
• Document facts, impressions, clinical judgment, and treatment objectively. Be specific
and avoid general statements such as “Patient doing well.”
• Use commonly accepted and understood medical terms, abbreviations, and acronyms.
Chart so that any medical professional can read the medical record.
• Use a standard charting format, such as the SOAP format, when documenting progress
notes.
• Avoid using sticky notes and half sheets of paper to document information in the medical record.
• Include a suggested return date and information about referrals to other health care
providers when documenting progress notes.
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• Document in the chart when patients are notified regarding test results and consultant
opinions. Include the date the patient was notified, the method of reporting (e.g., in
person, by telephone, or by letter), the information reported, and the person reporting.
• Chart drug names, doses, routes, and regimens meticulously.
• Correct errors in the chart by drawing a single line through the error and dating and
signing the correction.
• Add omitted information by identifying the entry as an addendum or late entry, and
date and sign the entry.
• Chart all clinical interventions, advice given, and patients’ responses.
• Avoid using the medical record as a battleground to criticize other professionals. Respect the opinion of peers. Never blame an adverse occurrence on another provider.
• Never, ever use humor in the medical record. What may seem funny at the time may not
seem funny to a jury.
• Eliminate bias from the written description of a patient. Avoid words such as “lazy” or
“sloppy.” A jury may infer that patient care was substandard because the provider did
not like the patient.
• Chart relevant patient acts. A jury may not be sympathetic to a patient who does not
comply with a provider’s instructions (e.g., the patient on strict bed rest who refuses to
stay in bed).
• Avoid gaps or omissions in the record. The old adage “If you didn’t chart it, you didn’t
do it” still holds true today.
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Electronic Medical Records: Litigation
Experience and Risk Management Tips
By Elizabeth A. Leedom, JD, Bennett Bigelow & Leedom, PS
Elizabeth Leedom, JD, is a trial lawyer with over 20 years of experience representing hospitals,
physicians, and other providers in medical malpractice cases. Educated at the University of Washington, she is past president of the Washington Chapter of the American Board of Trial Advocates.
The electronic medical record (EMR) has only recently started to appear in litigated medical
malpractice cases. This article will discuss the positive effects of an EMR in defending claims,
point out the ways we have seen EMR used by opposing counsel, and offer some risk management tips for using EMR.
The benefits of EMR
One of the positive effects of EMR has been more detailed and complete documentation. The
templates used for various chief complaints provide a handy and thorough checklist to facilitate
history taking and docu­mentation. For example, the template for chest pain sets forth a series
of important descriptors such as associated symptoms, location, quality, radiation, duration, timing, context, and modifying factors. The typed-in history taken by the physician can then address these issues. The templates also offer a helpful section for the review of systems in which
the physician can ask about related symptoms and simply type in a “no” if the patient’s history is
negative. This provides accurate documentation of what previously may not have been written
down due to a presumed negative response by the patient. Such EMR-facilitated documentation of a negative history has recently been helpful in a case where the patient later died and the
physician could point to actual documentation of what turned out to be a very pertinent negative in the review of systems. Had this not been affirmatively documented through the EMR,
the evidentiary rules excluding verbal statements by a decedent would likely have prevented the
physician from defending herself with this key point.
Another positive aspect of EMR has been its ability to prompt the physician to follow up on
abnormal lab values, results of oth­er diagnostic tests, and overdue preventive-medicine screening tests. The EMR can flag abnormal test results in the physician’s e-mail and can even signal
scheduling personnel to follow up by calling the patient for an appointment. The EMR can also
keep track of preventive-medicine screenings and generate a reminder letter to the patient and
a trigger to the physician when he or she next sees the patient. Because of the good use of EMR
capabilities, we are now seeing a near elimination of specific allegations of failure to follow up
appropriately on abnormal tests or needed screening.
How EMR can hurt a physician’s case
However, we are also starting to see the EMR used against the defendant physician in several
important ways. First, we are beginning to see requests for the EMR’s underlying metadata—
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that is, the information about the data that describes, for example, how, when, and by whom
the data was received, created, accessed, and modified. Many, many data fields are not printed
or regularly viewed in the EMR as it is used daily by physicians. For example, the EMR’s audit
trail feature tracks individual access to the EMR, and we have had to produce EMR audit trails
in the litigation context. The audit trail tracks certain portals in the EMR, causing a tripwiretype notation in the audit log when those portals are accessed. The audit trail thus provides a
permanent record of each time the patient’s EMR is accessed, and by whom, even if no entry is
made. It is important to keep in mind that each time you access a patient’s EMR, an electronic
“footprint” of that access may be permanently created.
Second, plaintiff attorneys are suggesting that the defendant physician is so preoccupied with
typing in the EMR that he or she isn’t paying adequate attention to the real live patient in the
exam room. We have heard plaintiff patients testify at deposition that their physicians were
typing throughout the interviews, making their patients uncomfortable and unsure if the physicians were really listening. You can reduce such a perception in your practice by explaining why
the EMR is used instead of hand­writing—and then listening intently and typing separately.
Third, plaintiff attorneys have been placing an overemphasis on the EMR’s “date and time
stamp” feature. The EMR creates a date and time stamp for nearly all entries—from the documentation of vital signs by the medical assistant to the physician’s review of diagnostic test
results. Plaintiff attorneys are using the date and time stamps to try to show the actual length of
the visit at issue and the amount of time spent between physician and patient.
The risk of date and time stamps
Be aware of the “date and time stamp” feature in the EMR. Plaintiff attorneys try to use this as
proof of when the physician first reviewed an abnormal lab result. In reality, the date and time
stamp is trig­gered when the physician formally opens and reviews the lab result, test, or other
report. Depending on the EMR, date stamp­ing a lab result or report might be accomplished by
clicking on a button, check box, or other feature. The physician may well have seen and acted
upon the result earlier when accessing the EMR for another reason that did not trigger the
date and time stamp. That is, the physician may have seen a lab result through an auto-preview
feature on his or her e-mail but did not activate the date-stamping feature in the record indicating his or her review because there were still outstanding lab results to receive. It is important
for physicians to “mark” the record with the date and time stamp when they first review results,
tests, or reports. This practice documents the physician’s prompt review of patient tests and
supports an accurate chronicle of clinical care.  
The risk of automatic text
Pay attention to the automatic text that is placed into the EMR when certain actions are taken.
The automatic text may be different from what is intended and may not fit the clinical situation. For example, when the medications list is reviewed and updated, the EMR may insert an
automatic text stating “Medications discontinued at this visit.” In a recent case involving an
alleged failure to diagnose an aortic dissection, the patient had been seen 18 months earlier and
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had reported during the visit that he had not been taking the anti-hypertensive medication
prescribed a year earlier but had been taking an herbal supplement instead. When the physician
cleaned up the medication record, he took the prior prescriptions for anti-hypertensives off
the patient’s list. Therefore, in the EMR, the notation “Medications discontinued at this visit”
automatically appeared, giving the impression that the physician, rather than the patient, had
decided to stop this treat­ment for high blood pressure.
Conclusion
For risk management purposes, the “e” in electronic medical records stands for “eternal.” Any
and all access, changes, edits, or modifications to the patient’s record are preserved and may even
be date and time stamped. Despite the eternal and omnipresent nature of the electronic eye of
the patient’s electronic chart, careful and attentive use of the EMR with these risk management
tips in mind will generally help the defense if the patient’s care is subsequently litigated.
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Retention of Medical Records
If you are ever in the position of defending your treatment decisions in court, it is essential that
you possess the relevant medical records. Without them it is very difficult to prepare an adequate defense. How long, then, do you need to keep medical records, including X-rays on your
patients?
Pursuant to the privacy rules under HIPAA, some documented requests for and disclosures of
medical records must be maintained for at least six (6) years. Consequently, you will be required
to maintain patient health care records for a minimum 6-year period.
The statute of limitations, or the period of time after treatment during which a patient may
bring suit against you, provides some guidance. An 8-year statute of repose became effective
June 6, 2006. A civil action for injury from health care must be commenced:
• Within three years of the act causing injury, or
• Within one year of the time that the patient discovered the injury or should have discovered the injury, whichever is later, but
• No more than eight years after the act causing the injury
The knowledge of the custodian parent is imputed to a minor child under the age of 18 for purposes of the statute of limitations.
To best serve you in the event of a claim, however, we continue to advise that if you cannot retain
medical records indefinitely, you should retain them for a minimum of:
• 6 years from the date of patient’s death
• 10 years from the date of patient’s last medical service
• 21 years from the date of a child’s birth for pediatric records and for the obstetric patient’s prenatal records
Appointment books and computer scheduling should be retained for at least 10 years. They are
frequently the only source of information about cancelled appointments, no-shows, or other
pertinent information about a physician’s schedule.
If you want to be absolutely safe, you should never destroy medical records. Certainly, if you are
aware of problems with a patient’s care or have reason to believe you may be sued, you should
retain all relevant medical records indefinitely.
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The Washington State Uniform Health Care
Information Act (UHCIA)
Background
The Washington State Legislature enacted the Uniform Health Care Information Act (UHCIA) in 1991. Since then, the UHCIA has governed the use and disclosure of health care information in Washington State. In 2003, the federal Health Insurance Portability and Accountability Act (HIPAA) took effect, providing additional regulation of health care information.
Because both state and federal laws govern health care information, there has been concern over
inconsistent standards and the potential for lowering the quality of care.
Current status
In 2005, the Washington State Legislature amended the UHCIA to make state law more consistent with HIPAA. These amendments became effective on July 24, 2005. The amendments primarily addressed authorizations for disclosing health information and accounting for disclosures.
Summary of amendments
A sample Authorization to Use or Disclose Health Care Information form is available on our
Web site at www.phyins.com.
The UHCIA’s general 90-day limit on the length of validity for a health care information disclosure authorization has been removed.
Before the amendment, Washington law permitted a patient to authorize disclosure of his or
her information relating to future health care that the patient received for up to 90 days after
the authorization was signed. The 90-day limit has now been removed. The UHCIA has been
brought in line with HIPAA regulations by requiring that an authorization include an expiration date or event that relates to the patient or the purpose of the use or disclosure. A 90-day
limit does, however, apply to an authorization for disclosure to a financial institution or an employer for purposes other than payment unless the patient renews the authorization.
The authorization may specify a particular class of persons to whom information may be disclosed. As amended, the UHCIA permits a patient to designate a particular class of person to
whom information may be disclosed instead of being limited to designating particular individuals. A patient may authorize the disclosure of health care information to a class of persons,
including researchers who have obtained the patient’s informed consent and third-party payers
if the information is disclosed only for payment purposes. Moreover, the UHCIA now permits
the authorization to identify a class of providers who are to make the disclosure.
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Today, a disclosure authorization must:
• Be in writing, dated, and signed by the patient.
• Identify the nature of the information to be disclosed.
• Identify the name and institutional affiliation of the person or class of persons to whom
the information is to be disclosed.
• Identify the provider or class of providers who are to make the disclosure.
• Identify the patient.
• Contain an expiration date or an expiration event that relates to the patient or the purpose of the use or disclosure.
There are three new instances when disclosures can be made without patient authorization. To further align the UHCIA with HIPAA, state law is clarified to permit health care
providers or health care facilities to disclose information without patient authorization to:
• Law enforcement authorities if the health care provider or facility believes in good faith
that the information disclosed constitutes evidence of criminal conduct that occurred
on the premises.
• Another health care provider, facility, or third-party payor who has a relationship with
the patient and is for the purpose of quality assessment and improvement activities,
provider credentialing and related activities.
• Those carrying out payment.
Accounting For Disclosures. Prior to amendment, the UHCIA required health care providers or facilities to account for every disclosure of health care information, except to third-party
payers. Now, the UHCIA accounting requirements mimic the HIPAA requirements. Thus,
health care providers and facilities now do not need to account for disclosures:
• To carry out treatment, payment, and health care operations.
• To the patient of health care information about him or her.
• Incident to a use or disclosure that is otherwise permitted or required.
• Pursuant to the authorization where the patient authorized the disclosure of health
care information about himself or herself.
• Of directory information.
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• To persons involved in the patient’s care.
• For national security or intelligence purposes if an accounting of disclosures is not permitted by law.
• To correctional institutions or law enforcement officials if an accounting of disclosures is
not permitted by law.
• Of a limited data set that excludes direct identifiers of the patient or of relatives, employers, or household members of the patient.
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Disclosing Health Care Information in
Washington—Q and A
1. How long is a records release authorization valid?
Except for permission to provide information to third-party health care payers, an authorization to release records can be valid for varying lengths of time. The authorization to release records must specify one of the following: an expiration date (a specific
date—e.g., January 1, 2010) OR a specified number of days from the date signed OR
when the following event occurs (e.g., “when adoption of our child is final”). The law
has no time limit on the validity of releases to health care payers.
2. Does a patient have a right to be informed of disclosures of health care information?
Yes. A patient has a right to receive an accounting of disclosures of health care information made by a health care provider or a health care facility in the six years before
the date on which the accounting is requested, except for disclosures:
• To carry out treatment, payment and health care operations.
• To the patient, of his or her own health care information.
• Incident to a use or disclosure that is otherwise permitted.
• Pursuant to a valid authorization where the patient authorized the disclosure of
health care information about himself of herself.
• Of directory information.
• To persons involved in the patient’s care.
• To authorized federal officers for certain national security or intelligence purposes.
• To correctional institutions or law enforcement officials having lawful custody of
the person in necessary for certain purposes.
• Of a limited data set that excludes direct identifiers of the patient or of relatives,
employers, or household members of the patient when done so for certain limited
purposes.
3. How long do I have to respond to a request to copy records?
You should comply as soon as is reasonably practical, but the law allows up to 15 working days to make the information available. If special or unusual circumstances cause
a delay beyond 15 working days, you must inform the patient in writing of the reasons
for the delay and specify a date no later than 21 working days after receiving the authorization when the information will be made available. This discussion does not apply
36
in the context of a subpoena or request for discovery.
4. What do I do if a patient asks to see his or her record?
The patient does have the right to personally inspect his or her medical record as
promptly as required under the circumstances, but no later than 15 or 21 working days
after the patient’s request as described in question 3 above. A staff member should
accompany the patient to provide assistance, answer questions, and guard against tampering with the chart.
5. How much can I charge for copies of the records?
For Washington practitioners and facilities:
HIPAA and Washington State law limit the amount that may be charged for duplication and searching services to a reasonable cost-based fee. HIPAA prohibits charging
patients for handling fees, chart-pulling fees, or per-page fees in excess of the direct
cost of materials. The interaction between these two laws may arguably permit the
inclusion of a clerical or labor fee only under certain circumstances.
When editing of the record is required by statute and is done by the provider personally, Washington State law allows the provider to charge the usual and customary
charge for a basic office visit. However, because of the HIPAA Privacy Rule, individuals must agree to these charges in advance. A typical example of where editing would
be required is a records request that does not specifically authorize disclosure of information related to HIV/AIDS, sexually transmitted diseases (STDs), substance abuse,
or mental health, which would require that information be removed from the chart
copy.
The Washington State Department of Health discourages charging a fee in cases of
financial hardship. Refusing to provide copies of records for treatment purposes is
unethical. In other situations, Washington State and federal law does provide that a
“reasonable” or “cost-based” fee may be charged. In Washington State, these fees may
not exceed the following:
Copying
$0.96/page for the first 30 pages plus $0.73/page thereafter (HIPAA prohibits charging patients or their representative handling fees, chart-pulling fees or per-page fees in excess of the direct cost of materials)
Clerical/labor Up to $22.00 (HIPAA provides that this fee cannot be charged to patients or their representatives)
Certification $2.00
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Differing opinions exist concerning how the language contained with the HIPAA
privacy regulations interacts with the copy charges allowed by Washington State law.
HIPAA regulations may limit permissible copy charges assessed to patients by allowing labor and supply costs only, and specifically excluding charges for “retrieving
or handling.” Therefore, we currently believe that the $22 “clerical fee for searching
and handling” allowed under Washington law cannot be charged to patients requesting copies of their records. For nonpatient requestors, excluding third-party payers,
HIPAA contains no provisions governing or limiting such fees. Therefore, it is debatable as to whether or not it is permissible to charge nonpatient requestors the $22
clerical fee for searching and handling. The bottom line is that you cannot charge
the patient, or third-party payers, the $22 fee. The “per page” charges allowed under
Washington law can still be charged to patients up to the statutory maximum provided that these fees do not exceed the direct cost of materials.
References: RCW 70.02.010, RCW 70.02.080, WAC 246-08-400, 45 CFR 164.524, Washington State HIPAA Preemption Analysis (2002 WHSA)
6. Do I still need a special form to release information about HIV/AIDS, sexually transmitted diseases, drug abuse, and mental health treatment?
The patient must sign an authorization that specifically mentions these conditions
before the records can be released. Please refer to our sample Authorization to Use or
Disclose Health Care Information for the recommended language.
7. Can anyone other than the patient sign a records release authorization?
If the patient is alive but does not have the capacity to sign a records release authorization, a person authorized to make health care decisions on behalf of the patient
can sign the records release authorization. A person authorized to make health care
decisions is a member of one of the following classes of persons in the following order
of priority:
1.
The appointed guardian of the patient, if any.
2.
The individual, if any, to whom the patient has given a durable power of attorney for health care.
3.
The patient’s spouse.
4.
Children of the patient who are at least eighteen years old.
5.
Parents of the patient.
6.
Adult brothers and sisters of the patient.
If the patient is deceased, the personal representative of the patient (executor of the
patient’s estate) can sign a records release authorization. If there is no personal rep38
resentative, then a person authorized to make health care decisions for the patient as
listed above can sign the release.
8. Can parents sign releases for their minor children?
Parents may sign releases for their minor children in most cases. However, if the minor
is emancipated, married, or authorized to consent to health care without parental
consent according to federal and state law, only the minor may authorize the release of
health care information pertaining to his or her care. Minors may consent at age 14 for
treatment related to HIV/AIDS or sexually transmitted diseases; at age 13 for outpatient mental health care or outpatient substance abuse treatment; and at any age for
birth control or pregnancy-related care.
9. What if the parents are divorced?
If the parent represents to the health care provider that he or she is authorized to
consent to treatment for the minor, the parent can sign the records authorization. This
applies regardless of whether the parents are married, unmarried, or separated at the
time of the request; the consenting parent is or is not the custodial parent; and the giving of consent by the parent is or is not in compliance with a divorce order or decree.
10. What do I do when I receive a discovery request or subpoena for records, deposition, or trial from a lawyer?
Before a discovery request or subpoena is served, the health care provider must be
given at least 14 days’ advance written notice by the attorney issuing the request or
subpoena. A copy of the advance notice also is sent to the patient or patient’s attorney.
The notice must indicate from what provider the information is sought, what information is sought, and the date by which a protective order must be obtained to prevent
the provider from complying with the discovery request or subpoena. The health care
provider may not, without the patient’s consent, disclose the information sought if the
requestor has not complied with the notice requirements.
If the notice requirements have been met, the provider must disclose the requested
information in response to the discovery request or subpoena unless a protective order
is issued by the court or the information is otherwise protected by law as described
in the next paragraph. The discovery request or subpoena must be placed into the
patient’s record.
The fact that notice requirements have been met and that the release is pursuant to
a discovery request or subpoena for records does not modify the terms and conditions of disclosure under laws forbidding the compelled disclosure of information
about HIV/AIDS, STDs, mental health, or substance abuse. You cannot disclose such
information unless the patient specifically consents in writing or the party requesting
disclosure obtains a specific court order. A general subpoena or request for discovery is
39
not enough. If you receive an advance notice of a subpoena or discovery request without the patient’s signed authorization for the release of information about HIV/AIDS,
STDs, mental health, or substance abuse, we recommend you send the parties a letter
that explains your dilemma. It should include language similar to this:
“I will comply with the (subpoena) (discovery request) to the extent allowed by
law. If the patient’s record contains any information which requires the patient’s
specific consent for disclosure, I will need the patient’s specific written consent or
a specific court order before I can release such information.”
If you delete information from the record, advise the requestor that information has
been deleted as required by law, but do not specify the nature of the information.
Of course, if you are involved in the litigation as a party, you should consult with your
counsel about the appropriate response to a request for records.
11. Can I disclose health care information without the patient’s authorization?
Yes. There are a variety of situations whereby information may be disclosed without
authorization by the patient.
Following is a partial list of such circumstances. This list is not intended to be all inclusive and each organization’s policy regarding privacy practices should be consulted
before disclosures are made without a patient’s authorization. Privacy regulations now
in effect are designed to improve the privacy and security of health care information
but they are not intended to be a barrier to quality health care.
• To funeral directors/coroners consistent with applicable law to allow them to carry
out their duties.
• To organ procurement organizations (tissue donation and transplant) or persons
who obtain, store, or transplant organs.
• To the Food and Drug Administration (FDA) relating to problems with food,
supplements, and products.
• To comply with workers’ compensation laws—if a workers’ compensation claim is
made.
• For public health and safety purposes as allowed or required by law:
• To prevent or reduce a serious, immediate threat to the health or safety of a
person or the public.
• To public health or legal authorities:
• To protect public health and safety.
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• To prevent or control disease, injury, or disability.
• To report vital statistics such as births or deaths.
• To report suspected abuse or neglect to public authorities.
• To correctional institutions if the patient is in jail or prison, as necessary for the
patient’s health and the health and safety of others.
• For law enforcement purposes such as when a subpoena, court order, or other legal
process requires disclosure, or if the patient is a victim of a crime.
• For health and safety oversight activities. For example, health information may be
shared with the Department of Health.
• For disaster relief purposes. For example, health information may be shared with
disaster relief agencies to assist in notification of a patient’s condition to family or
others.
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Section 3
Medical-Legal Issues
42
Interpreters: Working with Patients with
Limited English Proficiency
All patients are entitled to confidential, effective communication, and fully informed consent.
For many healthcare providers, this means having to develop strategies for working with patients for whom English can be a challenge.
The DHHS Office of Civil Rights has concluded that inadequate interpretation for patients
with Limited English Proficiency (LEP) is a form of prohibited discrimination on the basis
of national origin under Title VI of the Civil Rights Act of 1964. Over the past few years, the
Civil Rights Division of the U.S. Department of Justice has been charged with coordinating,
reviewing, and enforcing rules established to ensure that LEP individuals have access to essential
services. In addition to the Civil Rights Act, there are a variety of state and local laws that apply
to LEP individuals including the Washington Law Against Discrimination.1
One or more of these laws will require you to provide a qualified interpreter or auxiliary aids to
ensure effective communication at no cost to the patient. Additionally, your ability to continue
receiving federal or state reimbursement may be affected by your compliance with these laws.
In Washington State, people with LEP are defined as individuals with “limited ability or an
inability to speak, read, or write English well enough to understand and communicate effectively in normal daily activities. The client decides whether he/she is limited in his/her ability
to speak, read, or write English.”2 This includes people whose primary language is not English as
well as those who may have hearing, sight, and speech limitations.
LEP Q and A:
1. Who decides what aid is necessary?
While the patient decides whether he or she is limited in his or her ability to speak,
read, or write English, the provider, in consultation with the patient or patient’s representative, determines what strategies are necessary to communicate effectively.
2. If an interpreter is not immediately available, can I ask that the appointment be rescheduled?
In many cases, yes. However, if the patient would suffer because of the delay, you will
want to have an alternative strategy available. The laws require “timeliness.” Though
there is no specific definition of “timeliness,” the nature of the consultation and the urgency for treatment are factors that must be taken into consideration. A delay should
not take place if the delay would reasonably deny the patient access to quality care.
For emergent needs, when it is not possible to have an interpreter assist in person,
there are resources available, such as Language Line Services, which have interpreters
available on a 24-hour basis.
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3. Can we ask the patient or their representative to bring in a family member?
Family members or friends should not be used unless the patient so chooses, and only
after you advise the patient of your obligation to provide an interpreter at no cost to
the patient. While patients may be comfortable with family members, it is important
to remember that the family member may not have the appropriate skills necessary to
convey complicated health care information. There may also be situations in which
the family member could have a conflict of interest.
4. Are we obligated to use an interpreter selected by the patient?
No. You are not required to utilize an interpreter designated by the patient. You can
require the patient use a qualified interpreter selected by you.
5. Who pays for the interpreter?
The provider or practice cannot charge the patient for interpreter services. Patients
must be fully informed of the availability of a qualified interpreter at no cost to the
patient. Some providers who care for DSHS patients do qualify for reimbursement.
However, coverage varies and you should not rely on reimbursement without first
contacting the DSHS Medical Assistance Administration.
6. How do I identify a qualified interpreter?
Washington State has established procedures for identifying qualified interpreters and
translators, in both foreign languages and American Sign Language. Through a certification process, interpreters and translators are tested to demonstrate a proficiency in
and ability to communicate in both English and the other language. Good sources of
referrals may be found in hospitals and at local public health offices. Develop a contact
list of services in your area.
7. Where can I learn more about LEP?
We have put together a list of Web sites to help you identify resources and develop
policies for working with LEP patients.
Washington State Web sites
Washington State Language Testing and Certification (LTC) Home Page
http://www.dshs.wa.gov/msa/ltc/
DSHS MAA Interpreter Service Providers for Spoken Language
http://fortress.wa.gov/dshs/maa/InterpreterServices/SpokenLanguageVendor.htm
American Sign Language Providers
http://fortress.wa.gov/dshs/maa/InterpreterServices/ASLproviders.htm
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United States Federal Government Web sites
Interagency Working Group on Limited English Proficiency
www.lep.gov
Links to Medical Translator and Interpretation Services
http://www.lep.gov/medtrans.html
US Department of Justice
http://www.usdoj.gov/crt/cor/13166.htm
A collection of federal legislation related to LEP
http://www.usdoj.gov/crt/cor/Pubs/ISpeakCards.pdf
A printable flashcard that can help providers identify which language a patient speaks
Federal Citizen Information Center
http://www.pueblo.gsa.gov/multilanguage/multilang.htm
US FDA Center for Food Safety and Applied Nutrition
http://www.cfsan.fda.gov/~mow/language.html
Some documents available for download about basic nutrition and health information in many foreign languages
Office of Women’s Health
http://www.fda.gov/womens/taketimetocare/mymeds.html
Patient information document available in many languages
Other resources
Language Line Services
www.languageline.com
National Council on Interpreting in Health Care
http://www.ncihc.org/
Diversity Rx
http://www.diversityrx.org/HTML/MORES_SMI.htm
Resources on cross-cultural healthcare including
translation, interpretation, and other issues
1 RCW
49.60
2 WAC
388-555-1000
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Health Care Assistants: the Basics
More and more medical practices are hiring health care assistants as a cost-effective way to
obtain valuable medical assistance. Many physicians call the Risk Management Department with
questions about a health care assistant’s authorized duties, the certification process, the required
level of supervision, and what new risks health care assistants can bring to a practice. Fortunately,
the law in Washington State provides clear guidance. This article will answer some of the common questions we receive about health care assistants in light of current Washington State law.
What is a health care assistant?
As defined by RCW 18.135.020, a health care assistant is an unlicensed person who assists a
licensed health care practitioner in providing health care to patients. Health care practitioner is:
1. A physician licensed under chapter 18.71 RCW, and a physician assistant licensed under
chapter 18.71A RCW.
2. An osteopathic physician or surgeon licensed under chapter 18.57 RCW, and osteopathic physician assistant licensed under chapter 18.57A RCW.
3. A podiatric physician and surgeon licensed under chapter 18.22 RCW, acting within the
scope of their licensure.
4. A registered nurse or advance registered nurse practitioner licensed under chapter 18.79
RCW.
5. A naturopath licensed under chapter 18.36A RCW.
What are health care assistants authorized to do?
The health care practices authorized by Washington law are limited to administering skin tests
and subcutaneous, intradermal, intramuscular, and intravenous injections, minor invasive procedures to withdraw blood, hemodialysis, as well as FDA-approved vaccines by injection, orally
or topically, including nasal administration. Authority to perform such procedures may only be
delegated by a delegator (e.g., a licensed health care practitioner) who is authorized to perform
these procedures within the scope of his or her license. Health care assistants may perform only
those procedures that are authorized under their current certification/delegation forms on file
with the Department of Health.
What is certification and who certifies the health care assistant?
Any health care facility may certify a health care assistant to perform authorized functions in
that facility, and any health care practitioner may certify a health care assistant capable of performing such services in any health care facility, or in his or her office, under a health care practitioner’s supervision. Before certifying the health care assistant, the facility or health care practitioner must verify that the health care assistant has met the minimum requirements applicable to
the health care assistant’s classification. Training and supervision in this same capacity is allowed
to continue after the trainee has submitted the application for certification and up to the time
46
the certification is issued. However, persons trained by a federally approved end-stage renaldisease facility who perform end-stage renal dialysis in the home setting are exempt from certification.
What are the different levels of certification for a health care assistant?
There are seven levels of certification; each level allows for specified activities and has certain
specific training and educational requirements. Certification is valid for two years, and the
delegating practitioner or health care facility is responsible for certifying and recertifying health
care assistants. Any change in health care facility, health care practitioner, or category requires a
new application. As a general outline, the activities authorized under each certification level are
as follows:
Category A: may perform venous and capillary invasive procedures for blood withdrawal
Category B: may perform arterial invasive procedures for blood withdrawal
Category C: may perform intradermal (including skin tests), subcutaneous, and intramuscular
injections for diagnostic agents
Category D: may perform intravenous injections for diagnostic agents
Category E: may perform intradermal (including skin tests), subcutaneous, and intramuscular
injections for therapeutic agents
Category F: may perform intravenous injections for therapeutic agents
Category G: may perform hemodialysis
Note that intra-arterial injections are not authorized for health care assistants.
Remember, each certification level has individual training and educational requirements. WAC
246-826-130 through WAC 246-826-180 identifies the training and educational requirements
for each level. WAC 246-826-300 through WAC 246-826-303 identifies the minimum requirements, training, standards of practice, and core competencies of hemodialysis technicians. It is
essential to familiarize yourself with the training and educational requirements before preparing
and submitting an application with the Department of Health.
Which medications can a health care assistant administer?
The medications or diagnostic agents and the route of administration of each that a delegator
authorizes for injection must be produced on a list and submitted to the Department of Health
in conjunction with the assistant’s initial certification application and upon recertification. Any
changes in this list must be provided to the Department of Health within 30 days following the
change. Health care assistants are prohibited from administering any controlled substance as defined in RCW 69.50.101(d), any experimental drug, and any cancer chemotherapy agent unless a
47
delegator is physically present in the immediate area where the drug is administered.
Must the health care assistant be supervised?
The answer is “yes” if the health care assistant is performing a delegated function. The assistant
may be supervised by either the practitioner who delegated the act or by a practitioner who can
order the act under his or her license. The supervising practitioner must be physically present
and immediately available in the facility during the administration of injections or vaccines. The
supervising practitioner does not need to be present during procedures to withdraw blood.
It is important for physician employers to remember that they can be held accountable for any
errors made by health care assistants that they employ. As such, it is imperative that employers
make sure their staff members are properly trained, supervised, and certified for their delegated
duties within the practice. A health care provider’s failure to comply with these state-mandated
certification requirements could expose them to disciplinary action by the Department of
Health under the Uniform Disciplinary Act RCW 18.130. Further, health care assistants who are
not certified or who perform tasks outside the scope of their certification place patients at risk of
harm and also place the health care provider and supervising health care provider at risk in the
event of patient harm.
The key to successful employment of these valued employees is to make sure that each receives
quality training for the activities delegated and that appropriate supervision is taking place.
Make sure all of your health care assistants are currently certified with the State of Washington
and all assistants are providing only those services authorized within their current certification.
In addition, it is useful to familiarize yourself with the state laws that pertain to health care assistants. Indeed, all health care assistant applicants for certification are required to read these laws.
They include the Revised Code of Washington, Chapter 18.135, Washington Administrative
Code, Chapter 246-826, and Revised Code of Washington, 18.130.170 and 180 of the Uniform
Disciplinary Act.
For additional information or technical assistance in filling out the health care assistant application form or clarification of the statute, rules, requirements, and processes for health care certification, contact the Department of Health’s Customer Service Center at (360) 236-4700.
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Health Care Directives
An advance medical directive, commonly referred to as a “living will,” “health care directive,” or
“directive to physicians,” is a legal device intended to ensure that a patient’s wishes concerning
medical treatment will prevail if the patient is terminally ill or permanently unconscious. Most
physicians will encounter a patient-executed advance directive. Of course, this article does not
provide specific legal advice, and it is not intended as such. When specific questions arise, we
suggest you seek legal counsel.
Federal law
In 1990 Congress passed the Patient Self-Determination Act (PSDA), which requires hospitals, hospices, home health agencies, nursing homes, personal care providers, and Medicare- or
Medicaid-participating prepaid health plans to inform patients of their right to execute an
advance directive. Facilities and prepaid health plans subject to the PSDA must:
• Upon admission or enrollment, provide written information to all adult patients
describing their rights under state law to accept or refuse treatment and prepare an
advance directive.
• Include in the written information a description of the provider’s policies concerning
implementation of these rights.
• Adopt a policy of nondiscrimination against patients that have executed an advance
directive.
• Document in the patient’s chart whether or not an advance directive has been executed.
• Follow any state law requirements pertaining to advance directives.
• Provide (individually or with others) for education of the staff and the community at
large about advance directives.
Physicians practicing in a traditional office or clinic setting have no obligation to comply with
any of the above federal requirements. However, the quality-improvement programs of some
managed care plans obligate physicians to inform patients of their right to execute an advance
directive. Physicians are also typically obligated to ensure that the patient’s chart reflects the
dialogue and contains a copy of any advance directive.
State laws
Washington State’s Natural Death Act (NDA), which is reasonably representative of much
state legislation, provides protections and guidelines for physicians. The NDA specifically recognizes advance directives and durable powers-of-attorney as means of effecting patient wishes
49
concerning the withholding or withdrawal of life-sustaining treatment in the event of a terminal
condition or permanent unconscious condition.
Questions and answers about the Natural Death Act:
1. Does the statute tell us what an advance directive should look like?
Yes. The NDA has created a suggested form. Directives available from the Washington State Medical Association and other health care-related organizations are closely modeled on this form.
2. When does an advance directive become operative?
When the patient has been diagnosed, in writing, to be in either:
• A terminal condition (where death from injury, illness, or disease is expected
within a reasonable period of time, and where the application of life-sustaining treatment—to include nutrition and hydration—would serve only to
prolong the process of dying), or
• A permanent unconscious condition (an incurable and irreversible condition
with no reasonable probability of recovery from an irreversible coma or persistent vegetative state).
3. Can a physician act as one of the required two witnesses?
The NDA specifically prohibits the attending physician, employee of the attending
physician, or any employee of the hospital or other health facility caring for the patient
from acting as a witness. Attending physician is defined as the physician having primary responsibility for the treatment and care of the patient. As a practical matter, a
physician with any involvement in the patient’s care should avoid acting as a witness.
4. What responsibilities does the physician have in determining a directive’s legal validity?
A reasonable “good faith” effort is sufficient before a physician withdraws or withholds
life-sustaining treatment. Be sure you read the directive and verify that it is signed by
the patient and two witnesses. Keep in mind that the patient can use an advance directive to either refuse or request specific measures.
Unless otherwise negligent, the following are immune from civil and criminal liability
and professional conduct sanctions when acting in good faith on a directive’s instructions: physicians, health care providers acting under the direction of a physician,
certain health care facilities (hospitals, hospice agencies, nursing homes, home health
agencies, and boarding homes), and their personnel.
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5. Does a physician have to comply with a “no-treatment” directive?
No physician or other health care practitioner is required by law or contract to participate in the withholding or withdrawal of life-sustaining treatment if he or she objects.
However, if a physician is aware of a patient’s directive, and has no intention of following it, he or she must inform the patient.
If the patient does not elect to be treated elsewhere, the physician must file a written plan in the patient record indicating what actions will or will not be taken if the
patient becomes terminal or permanently unconscious. After the physician advises the
patient and prepares and complies with the written plan, he or she is protected from
liability and professional conduct sanctions for not carrying out the directive.
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Informed Consent
National data indicates that more than one-third of all malpractice claims and lawsuits allege a
failure to obtain informed consent.
Actions based solely on issues of informed consent are rare; commonly, informed-consent claims
are coupled with allegations of negligence. As an entirely distinct legal theory, failure to obtain
informed consent can result in physician liability regardless of whether the standard of care is
met.
Case study
A 26-year-old female athlete was hospitalized for a severe staph infection involving her left foot.
Her attending physician ordered IV administration of gentamicin (a potent antibiotic), 5 mg/
kg every eight hours, with close monitoring of serum levels to avoid toxicity. The physician was
aware that the drug had potential serious adverse effects, including nephrotoxicity, otoxicity,
and vestibular toxicity—the latter of which can result in ataxia (unsteady gait) and oscillopsia
(“bouncing” vision).
On the eleventh day of hospitalization, the patient had improved markedly. Discharge within
24-48 hours was anticipated. However, later that evening, the patient experienced difficulty
walking, reporting a sense of “feeling uncoordinated.” A nursing assistant had to assist her back
to her bed. The physician was notified.
The following morning, the patient had similar difficulties attempting to walk. Her physician
immediately suspected gentamicin-related toxicity, though serum levels had remained within,
or very close to, the desired therapeutic range. The physician immediately ordered a change of
antibiotic, discontinuing gentamicin.
The patient’s problems with muscle coordination persisted. It was later determined that
gentamicin toxicity had resulted in irreversible damage to the vestibular labyrinth. When discharged from the hospital, the patient required a cane to steady her gait. There were no signs of
infection, nor any indication of permanent damage to the structures of the foot.
Case evaluation
One year after discharge, the patient named the physician in a lawsuit. On issues of standard of
care, the suit alleged that gentamicin dosages were excessive and blood monitoring inadequate.
The defense conceded that gentamicin had caused the harm to the plaintiff but vigorously
contested the notion that negligence had been involved. Despite the patient outcome, plaintiff
experts floundered in their efforts to provide convincing evidence that the defendant had deviated from acceptable standards of practice.
The plaintiff’s second legal theory was that the defendant had failed to obtain informed consent. She testified that her physician had told her nothing of the risks of gentamicin therapy,
nor had he mentioned any alternatives. She recalled that he had told her that gentamicin was a
52
“heavy-duty” antibiotic, necessary because of the severity and type of the infection. However,
“heavy-duty” did not suggest to her that the drug carried any special risks. The plaintiff said she
trusted her doctor, and it had never occurred to her to ask questions about the antibiotic. She
merely asked the defendant if her foot would be OK and how long she would have to stay in the
hospital. Her physician offered general reassurance, which she appreciated at the time, but no
specific information. She said he seemed “very caring.” She had felt that if there were something
she needed to know, her doctor or the nurses would have told her. The plaintiff testified that she
“devoutly” wished the defendant had told her that there were “less risky” antibiotics that might
have worked. She said she would have told her doctor to try something other than gentamicin.
Plaintiff experts agreed, under cross-examination, that gentamicin was not contraindicated
or inappropriate—“it worked”—but were firm on the point that it was not the sole antibiotic
suitable to combat this infection. “There are other weapons in the arsenal,” they said, and the
patient should have been told. These same experts told the jury that, in their opinion, the defendant had a “clear duty” to tell the patient “up front” about the “considerable risks” of kidney
damage, hearing loss, and ataxia. If the defendant had done this, a “decent discussion” about
alternatives might have followed.
Medical experts on both sides provided testimony concerning the statistical probability of the
harm that had befallen the patient and information about the likely severity of such injuries.
The defendant physician recalled mentioning to the patient that he had selected gentamicin because it was a potent antibiotic with a proven record against staph infections. He was uncertain
if he had mentioned possible side effects, but “might well have.” He was forced to admit there
was nothing in the medical records that indicated the patient was told anything specific about
gentamicin. When the questioning turned to therapeutic alternatives, the physician acknowledged that he “probably didn’t go into that …” He would have had a discussion with the patient
about other antibiotics had it appeared that gentamicin was proving ineffective, but that was
not the case.
After weeks of testimony and lengthy deliberation, the jury returned its verdict: The defendant had not violated the standard of care, but the defendant had failed to obtain the plaintiff’s
informed consent. The jury found that:
• Information concerning risks of gentamicin and treatment alternatives was “material”
and should have been disclosed.
• If the required disclosure had taken place, a reasonable patient would have, more probably than not, elected one of the options.
• Had one of the testified-to alternative antibiotics been chosen, the plaintiff would have
avoided the damage to her vestibular system and would not have suffered from ataxia.
The plaintiff had proven each element of her informed-consent case. That the jury found the
standard of care had been met was of little consolation to the physician. The damage award was
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substantial.
Post-trial, jurors mentioned their sympathy not only for the injured plaintiff, but also for the
physician. They agreed he had tried to do what he thought was best for the young woman.
The jurors also said they believed gentamicin was not an unreasonable choice. The problem,
however, was that this choice was made solely by the doctor. He did not give the patient a
chance to participate in the decision. The jurors agreed that the plaintiff could not be faulted
for not asking more questions. She was not a doctor, so she had no way of knowing there were
questions to ask.
Analysis
This above case did not involve a medical emergency under circumstances where consent is
implied by law. Although the patient was dangerously ill upon presentation to the hospital,
she was conscious and able to participate in decision making. There was no evidence that the
plaintiff exercised her right to refuse informed consent. She did not tell her physician anything
along these lines:
“Hold on, Doctor, I don’t want to hear anything about those risks—that kind of stuff
scares the hell out of me. I want you to make the decision.”
A conversation such as this would have relieved the defendant of the obligation to obtain
informed consent and possibly avoided a lawsuit—assuming thorough documentation of the
patient’s refusal.
The plaintiff verdict resulted from a well-intentioned physician falling into the old snare of
medical paternalism, acting in the perceived best interests of the patient, to be sure, but effectively excluding the patient from the decision-making process. The defendant, wholly focused
on the challenging clinical issues confronting him, forgot that the paternalistic approach to
medicine was discarded decades ago, a casualty of the consumer-oriented informed-consent
movement that emerged in the 1960s.
Guidance
As always, the devil is in the details: How is the time-deprived physician to know what information must be offered a patient? Recognizing that it is impossible to require that physicians inform patients of every conceivable risk, complication, or treatment alternative, Washington law
(fundamentally similar to that of Oregon and Idaho) requires health care providers to disclose
only material information. Material is defined as what a reasonably prudent patient would want
to know before consenting to the proposed procedure or treatment.
Physicians would be wise to consider: “Would this information, if disclosed, be likely to change
a patient’s decision?” If so, the patient should, with few exceptions, be told. When in doubt, it is
better to give the patient more information, not less.
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Documenting informed consent
An adequate informed-consent process includes not only the dialogue with the patient or other
decision maker but also the documentation of the discloser and the patient’s understanding
of the information imparted. It is advisable to document the informed-consent discussion in
hospital and office progress notes as well as employ a procedure-specific, patient-signed consent
form.
A properly developed, patient-signed consent form is compelling evidence that a patient was
adequately informed before a medical procedure. It can deter litigation or at least help the physician prevail in the courtroom setting. Informed consent also encourages a patient to be more
responsive to advice and is associated with a patient’s ability to recuperate more quickly, require
fewer analgesics, and feel less anxiety—while experiencing fewer complications and days in the
hospital. Physicians Insurance now offers our insureds two informed-consent templates, accessible at http://www.phyins.com/pi/publicationslist.html. Both the abbreviated form and the
longer, patient-teaching form can facilitate clinicians’ development of procedure-specific forms.
We believe strongly that the specific information called for by the templates, such as risks and
complications, is best provided by the clinician. Vendor-provided, procedure-specific forms
may not accurately or completely reflect the views of the physician who provides the form to
the patient. It is important that the right procedure-specific form—one reflecting the views
of the particular clinician—be utilized. Comprehensive documentation often deters potential
litigation.
What’s this about new CMS guidelines?
In January 2005, the Centers for Medicare and Medicaid Services (CMS) devised new interpretive guidelines for CMS surveyors pertaining to the informed-consent process in the hospital.
Though directed at hospitals, pursuant to Medicare Conditions of Participation, these new
hospital informed-consent requirements threatened to place unwelcome new administrative
burdens on physicians. Specifically, the 2005 CMS guidelines mandated that hospital informedconsent forms include (in addition to the customary elements) the following:
• In addition to the names of primary physicians or surgeons, the names of other practitioners and the specific, significant surgical tasks to be performed by them. Specific
surgical tasks included opening and closing; harvesting grafts; dissecting, removing, or
altering tissue; and implanting devices.
• Signature of a “professional person” witnessing the patient’s consent.
Various medical organizations expressed great concern relating to the novel requirements, and
uncertainties, inherent in the new form. For example, nowhere did the guidelines define the
qualifications of the “professional person,” the required “witness.” Also criticized was the requirement that all persons anticipated to be involved in the procedure be identified on the form
by name. Because the identity of “other practitioners” will, as a matter of necessity, sometimes
change shortly before surgery or other procedure, this requirement would be difficult or impos55
sible to meet, especially in hospitals with resident training programs. In the face of these and
other criticisms, CMS suggested that adjustments and clarification would be released at some
point.
Relief: the 2007 CMS revised interpretive guidelines
On April 13, 2007, CMS released substantial revisions to the 2005 guidelines:
• The “professional witness” requirement is abandoned.
• Hospital forms need not list specific risks of a procedure, specific alternative procedures,
or specific risks of no treatment.
• The names of all practitioners involved in a procedure—except for the primary surgeon
or physician— need not be listed on the consent form.
The new guidelines emphasize well-designed policies, procedures, and forms, citing new minimum requirements for hospital informed-consent forms:
• Name of the hospital
• Name of specific procedure
• Name of physician performing the procedure
• Statement that the procedure, anticipated benefits, material risks, and alternatives were
explained
• Signature of patient or legal representative
The date, time, and signature of a person witnessing the patient’s signature on the form is encouraged, but not required, as are other elements of the 2005 requirements.
The reach of the CMS guidelines does not extend to procedures or treatment performed in a
non-hospital setting. Nonetheless, we recommend that ambulatory surgery centers and office
practices use a form that incorporates the revised CMS requirements to ensure consistency
in the informed-consent process for both the patient and the physician. With respect to malpractice liability issues, the fundamental informed-consent responsibilities of physicians are set
forth, and consent forms addressed, within the Revised Code of Washington. Oregon and Idaho
physicians have similar responsibilities, as set forth in the Oregon revised statutes and in the
Idaho statutes. The CMS guidelines are more exacting.
Conclusion
Though physicians’ ultimate legal duty is still controlled by state law, physicians will be required to cooperate as hospitals work to implement the CMS requirements. Our two informedconsent templates will accommodate the 2005 CMS informed-consent guidelines—which,
although ultimately rejected as overly ambitious, nonetheless incorporate ideas worthy of your
consideration—as well as the more modest April 2007 revised CMS guidelines.
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DEA Rule Addresses Schedule II Controlled
Substance Prescriptions
Background.
Prescribing Schedule II controlled substances has become an increasingly difficult issue
in patient management. In August 2005, the U.S. Drug Enforcement Administration
(DEA) published guidance on prescribing Schedule II controlled substances that
essentially eliminated the practice of a physician writing multiple prescriptions on the
same day with instructions to fill on different days. The DEA guidance of 2005 provided
that writing multiple Schedule II prescriptions on the same day was illegal because it was
equivalent to the illegal practice of writing a prescription authorizing refills of a Schedule
II controlled substance.
The result of this guidance was that providers had to establish refill and medication
management protocols to assure timely delivery of newly written prescriptions for
patients whom the physicians determined had a legitimate clinical need to continue to
take the Schedule II substance. Depending on patient population, or individual patient
needs, physicians were left with the options of mailing prescriptions to patients or
requiring that patients pick up prescriptions in person. Each prescription needed to be
dated on the day it was written and signed.
Current law.
Effective December 19, 2007, the DEA finalized a rule change that allows physicians to
write up to three 30-day prescriptions for the same Schedule II controlled substance on
the same day. However, the law remains clear that Schedule II prescriptions may not be
refilled and prescriptions cannot be postdated.
Risk management recommendation.
It is now a legal practice to provide multiple prescriptions to patients on Schedule II
controlled substances, but
•
the prescriptions must be dated on the day they are written and signed, and
•
the earliest fill date must be specified on the prescription.
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The rule makes administration of Schedule II controlled substances less burdensome,
particularly for physicians with patients on chronic prescriptions—such as those with
chronic pain or attention deficit hyperactivity disorder. Of course, authorizing a prescription to be refilled for 90 days may not be appropriate for all patients. Care for these
patients can be enhanced with a properly designed and executed protocol incorporating
these guidelines and a well-documented chart regarding patient-specific considerations.
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Termination of Care
If you have a patient who does not comply with your recommended treatment, who does not
pay medical bills, or who becomes in some way a “problem patient,” you can terminate your
therapeutic relationship with that patient. However, this action should be taken only in extreme or unusual circumstances. If you decide to terminate the physician-patient relationship,
ethically and legally you should write the patient saying you will no longer be his or her doctor,
and you should provide adequate time to find a new doctor. You will also need to transfer the
patient’s medical records to the new doctor.
Generally, you can terminate your relationship with a patient at any time and for any reason.
The exceptions are that you may not stop treating a hospital inpatient, a patient in unstable
condition, or a number of patients from any special population or socioeconomic group. This
will protect you from charges of abandonment or discrimination. In addition, federal and state
law protecting the disabled may prevent you from discharging a patient whose noncompliance
is the result of a physical or psychological disorder.
If you decide to terminate the physician-patient relationship, these guidelines should be followed:
• Notify the patient in writing that you intend to terminate the relationship. You do not
have to reveal the reason for the termination.
• Be sure to state in the letter that you will continue to provide medical care to the patient for 30 days while he or she looks for another doctor.
• Include in your letter the name and number of a local physician referral service and
county medical society whenever possible.
• Explain in the letter that you will send a copy of the patient’s medical records to the
new doctor.
• Send the letter by certified mail, return receipt requested.
• Put a copy of the letter and the delivery receipt into the patient’s medical chart.
• If letter is returned as undeliverable, file unopened letter in patient’s chart, send another
copy of the letter through the normal mail route, and document the patient’s chart.
Under some circumstances, a verbal notice may be sufficient, but always document the discussion in the chart. An example might be a patient who frequently moves or has no permanent
address.
A sample termination of care letter can be found on our Web site at www.phyins.com.
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Risk Management Education Mandate
The law in Washington State
Under the Health Services Act of 1993 the Washington State Legislature enacted a law mandating that once every three years, a physician licensed and practicing in Washington complete a
health care liability risk management training program provided by the physician’s professional
liability insurer (RCW 48.22.080). Under this statute, every physician must complete the required training in order to renew his or her professional liability insurance policy.
The role of Physicians Insurance
Physicians Insurance offers numerous seminars throughout the state and self-study courses so
our members can fulfill the mandate. In addition to fulfilling the education mandate, many of
our seminars and self-study courses also provide members with AMA Category 1 continuing
medical education credits.
Our seminars offer personalized recommendations and a chance to meet informally with colleagues over a meal. All courses are presented free of charge to insured members and their office
staff.
It is important to remember that by law Physicians Insurance is not permitted to renew professional liability insurance policies for physicians who have not completed the education requirement. Physicians who fail to complete the requirement put their policies in jeopardy.
How we help members comply with the law
Our Risk Management Department tracks member attendance at seminars and participation
in self-study courses. We also monitor the compliance status of each Washington physician
member. In January of each year, notices are mailed to physician members who need to meet
the mandate by year-end. This written notification process continues at nine months out, six
months out, three months out, and then as necessary until the mandate is met.
To some, this notification process may be an imposition. However, our intent is to ensure that
no physician member faces nonrenewal of a professional liability policy for failure to meet this
education mandate.
Recent changes to the insurance laws in Washington State (RCW 48.18.2901) require us to provide 90 days’ advance written notice for nonrenewal of a professional liability policy. Therefore,
although mandate periods end on December 31, members who have not met the mandate by
the end of September will receive notice by October 1, of a nonrenewal effective January 1. We
will be able to rescind such nonrenewals and renew the policies of those members who complete the education mandate requirement by December 31.
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Registration brochures for seminars are mailed to insured members on an ongoing basis. To view
a list of upcoming events, register for one of our risk management courses, or request the selfstudy course, please visit www.phyins.com or call our Risk Management Department at 1-800962-1399 (Seattle) or 1-800-962-1398 (Spokane).
As a physician-owned company, we are committed to working with you to improve the quality
of patient care and reduce the frequency and severity of malpractice claims. We welcome your
ideas to improve our educational program, and we look forward to seeing you at an upcoming
seminar.
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Section 4
Patient Care Issues
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Medication Records
Many medical malpractice claims are due to alleged medication errors. Properly maintained medication records can help reduce errors and can be crucial to the defense of a malpractice claim. The
following suggestions will help prevent medication errors and significantly decrease risk:
• Use a medication flowsheet to document every medication a patient takes. Include the
date of the prescription, the name of the medication, the dose, route, amount, duration,
number of refills, and the signature of every refill provider. Place the flowsheet in the front
of the chart where it will be easily accessible.
• Post patient allergies and prior adverse reactions to medication on the flowsheet and on
the front cover of the file jacket. Do not give any medication without first checking the
list of allergies or adverse reactions.
• Question your patients periodically about their use of prescription and over-the-counter
drugs, especially if you know they are seeing other physicians or getting medication from
more than one source. Update the flowsheet accordingly. Many patients cannot give an
accurate statement of all current medications. A good practice is to ask such patients to
bring in all prescriptions and over-the-counter medicines.
• Tell your patients about the contraindications, drug interactions, warnings, and side effects of every medication you prescribe. Document in the chart that you have done this
and include all patient reports of side effects or adverse reactions, as well as all actions
taken to relieve them. Note on the flowsheet any drug you prescribe that requires blood
level assays or laboratory screening.
Take these simple steps to avoid common pitfalls:
• Be absolutely clear with verbal medication orders. Articulate the name of the medication,
the dose, and the regimen, and spell out any words that could be misunderstood.
• Many abbreviations can be easily confused, such as “O.D.” and “Q.D.” or “mg” and “mcg,”
so print or write all prescriptions legibly.
• Never put a zero after a decimal point, because whoever administers it could overlook the
decimal point and increase the dose tenfold.
• Keep all medications and samples in your office properly secured and labeled. If you discover an unlabeled container, discard it immediately.
• Double-check each container’s label before dispensing its contents.
• Discard all medications before the expiration date.
• Use a medication flowsheet. A medication flowsheet on thicker stock is available at no
charge to policyholders who want to order it from Physicians Insurance.
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Failure to Monitor Diagnostic Tests
Case study
Our insured physician, a family practitioner at a walk-in clinic, evaluated a new patient whose
painless breast mass had persisted for eight months. The patient, a 48-year-old Caucasian woman
with a medical history significant for fibrocystic breast disease, was unsure whether the mass
fluctuated in concert with her menstrual cycle. The ensuing examination showed only an irregular firm mass in the upper left quadrant of the breast. The physician’s differential diagnosis
included breast cyst versus breast cancer. A fine needle aspiration biopsy of the mass revealed a
small amount of reddish fluid, which was sent out for pathological evaluation. Palpation of the
mass after aspiration showed a minimal decrease in size.
The pathology lab never received the patient’s specimen, which was unwittingly lost in the clinic.
The clinic did not have a way of tracking diagnostic tests to guarantee receiving reports, and it
did not have a tickler system to ensure that patients were brought back in for follow-up treatment. Fourteen months later, the patient returned on her own with symptomatic complaints and
weight loss. After the subsequent diagnosis of stage III infiltrating ductal carcinoma, she underwent a partial mastectomy, an axillary node dissection, and radiation therapy. At the time of
settlement the patient was disease-free but had a questionable long-term prognosis.
Because of the difficulty in obtaining expert support for the defendant physician, who lost the
biopsy specimen and failed to follow up with the patient, a substantial settlement was made.
Risk management guidelines
Diagnostic tracking system: Many practices use a log book to track diagnostic tests performed
outside the office—including radiology studies (such as mammography and chest films), pathology studies, prenatal lab work, or other tests. The log book displays the name of the patient, the
date of the outgoing requisition, the date the report is returned, and the date the patient is notified. With such a system, physicians and staff members can tell at a glance if a test result has not
been received. For your convenience, the sample Diagnostic Test Tracking Log can be found on
our Web site at www.phyins.com.
Appointment scheduling and patient reminder systems: A patient reminder or tickler system
can help physicians and staff remind patients about periodic exams, routine follow-up visits, and
patient recalls. Such a system could have prevented the delayed diagnosis described in this case.
Patient recall systems are also effective practice marketing tools.
Conclusion
Administrative errors are an increasing problem in medical practice. Each office must develop
systems to ensure that diagnostic studies are not lost and that patients are seen in follow-up visits
when necessary.
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Avoiding Drug Scams
Many factors drive the increasing abuse of prescription drugs: fear of contracting AIDS, predictability of action of prescription drugs, prescription reimbursement through medical assistance
programs, and lighter criminal penalties for prescription drug fraud than for illicit drug trafficking.
Abusers of prescription drugs come from the entire socioeconomic and psychosocial spectrum.
Most drug-abusing patients seek drugs for personal use, but there are also many “professional”
drug-seeking individuals and organized groups who sell drugs obtained by prescription. A drug
abuser’s prime drug supplier is a gullible health care provider. Some possible behavioral signs of
a drug-seeking patient may include:
• Patient makes an urgent or walk-in visit for pain complaints.
• Patient schedules an appointment for late afternoon, particularly on Friday.
• Patient is from out of town and claims to be just passing through.
• Patient from out of town requests maintenance narcotic analgesics for a chronic condition.
• Patient calls in after hours with pain complaints, yet does not wish to be evaluated in the
emergency department.
• Patient requests a specific controlled substance by name.
• Patient claims that non-controlled drugs do not work, produce an allergy, or are otherwise contraindicated.
• Patient claims that the original prescription was lost or stolen.
• Patient refuses a diagnostic workup.
• Patient reports complaints of subjective pain such as facial, migraine, or back pain.
• Patient gives evasive or vague answers to questions about medical history.
• Patient asks an on-call or covering physician for a specific controlled drug and claims
that his or her attending physician, who happens to be unavailable, always gives a prescription for the requested drug.
• Patient presents to the emergency department with pain complaints during the busiest
times.
• Blank prescription pads are missing from the exam room or office after a patient departs.
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Risk management guidelines
There are several steps physicians can take to minimize the chance of being victimized by drug
scams:
Drug monitoring
Record all medications taken by or prescribed for a patient on a medication flowsheet kept in
front of the patient’s chart. This enables the clinician to easily monitor drug usage and avoid
providing excessive refills.
Refill protocols
Practices should carefully consider how to best handle refill requests. Your patient brochures
should include your policy on refills, including both noncontrolled and controlled drugs. Many
drug-seeking patients count on busy practices with office staffs who give automatic approval to
refill requests. If your practice allows medications to be refilled by someone other than the clinician with prescriptive authority, a written protocol should be adopted. This should include a
list of medications suitable for refills by nonphysicians, guidelines for questioning the patient to
determine the patient’s present medical status, and a decision tree determining whether or not
the patient should be seen before a refill is authorized.
Pain clinic/mental health referrals
Patients on chronic analgesic or psychotropic therapy must be periodically reevaluated on the
indications and efficacy of continued therapy. These patients may also be appropriate candidates for a pain clinic or a mental health referral for non-drug management.
Charting
The best defense against claims of inappropriate prescribing is documenting the indications
and rationale for treatment. Any signs of medication dependence or drug-seeking behavior
should be charted objectively.
Prescription pads
Make your prescriptions forgery-proof by writing out quantities in figures as well as numbers.
For instance, since “12” can easily be changed to “42,” it is better to write “#12 (twelve)” on
the script. Some health care payers may require that handwritten prescriptions be written on
tamper-resistant pads. Additionally, clinicians should never pre-sign blank prescription pads.
To prevent theft, remove any blank prescription pads from exam rooms and public access areas.
The safest locations for prescription pads are in the clinician’s coat pocket, the clinician’s office,
and a drawer at the nurses’ station or front desk.
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Coordination with other providers
Drug-abusing patients count on physicians and pharmacists being too busy or reluctant to talk
with each other. Under state law, the patient’s consent is not required to disclose health care
information to the patient’s other providers. In addition, information given to a provider for the
unlawful procurement of a legend drug is not a privileged communication. Therefore, you and
other health care providers caring for the patient may discuss suspected or actual prescription
drug fraud, diversion, and forgery. Since pharmacists detect the majority of such cases, physicians should always respond quickly to a pharmacist’s telephone inquiries.
Telephone diagnosis and treatment
When it is practical, clinicians should avoid making diagnoses and prescribing controlled substances by telephone without examining the patient. If the situation is urgent, patients should
be directed to the hospital emergency department.
Transient, emergency department, and weekend, on-call, or coverage patients
Treating physicians should prescribe or dispense only minimal amounts of controlled substances
until the patient’s attending physician can be contacted, particularly for patients with subjective
pain complaints. Attending clinicians should be told of any prescriptions or refills authorized by
covering colleagues.
Conclusion
Prescription drug fraud, forgery, and diversion are common occurrences. Close attention to preventive measures will help reduce the number of inappropriate prescriptions written.
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Sample Medications
When your office dispenses sample medications to a patient, you are acting as a pharmacist. Be
sure that your office complies with all state statutes, federal laws, and federal regulations.
Below is a list of suggestions your office may want to follow when dispensing sample medications to a patient:
• Ask the patient if he or she has any known drug allergies, and be sure to document this
information in the patient’s medical record.
• Give the patient written instructions on how to take the medication.
• Patients will not remember oral instructions on how to take the medication.
• Include the doctor’s name on the written instructions.
• Include the patient’s name on the written instructions.
• Include the date the samples were dispensed on the written instructions.
• Include the name, strength, and route of administration of the medication on the written instructions.
• Include the office’s phone number, in case of an allergic reaction, on the written instructions.
• Place a copy of the written instructions in the patient’s medical record.
A sample medication form can be found on our Web site at www.phyins.com.
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Risk Management for Telephone Health Care
In many cases, a staff member performs a telephone assessment on which the clinician and the
patient rely. What happens or does not happen over the telephone can serve as a basis for a
malpractice action.
The issues:
1. Consider the limits of your expertise.
2. Standard of care—always ask yourself what a reasonably prudent person would
do in this situation.
3. Essential elements of documentation:
a. Clear statement of problem.
b. Symptom analysis as related to current health problem.
c. Prescription or over-the-counter medications or herbs being used.
d. Allergy status if medications are involved.
e. Pregnancy status.
f.
Assessment.
g. Plan of care.
h. Medications prescribed or recommended.
i.
Advice/instructions for further access to health care.
4. Guidelines on when to chart telephone calls:
a. Change/ordering of medications.
b. Significant medical advice including all significant changes in health status.
c. Significant patient anxiety.
d. Administrative advice or directions, e.g., stay at home, call an ambulance,
return to work, or come to the clinician’s office.
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Section 5
Practice Management Issues
70
Risk Management for Office Personnel
Office staff can play a major role in reducing the risk of a malpractice claim. We offer
these guidelines for office personnel to help reduce the risk of a malpractice claim.
1. Do not play doctor. Although most staff members know that only licensed physicians and mid-level providers can diagnose illnesses and treat patients, many do
not know that well-intentioned remarks can be interpreted as medical advice.
Since patients tend to take seriously anything they are told in a physician’s office,
the staff should not volunteer medical opinions or comment on treatment.
2. Stay within the limits of delegation. All delegated duties should be performed
under the physician’s supervision by an individual qualified to carry them out. A
protocol should be established if feasible and practical.
3. Respect patient privacy. Information about a patient should never be given on
the telephone unless the caller has appropriate authorization or need to know the
information. If you are unsure of the caller’s identity, you may want to obtain a
phone number and return the call. There will be instances where a written authorization to release information is not practical or necessary. An example would be
to another provider that has treated, is treating, or will be treating the patient. Use
your best judgment. Patient care is almost always of higher priority than patient
confidentiality.
4. Cooperate with law enforcement and CPS. Law enforcement officers and CPS
workers are entitled to obtain relevant medical record information that pertains
specifically to an investigation of alleged child abuse or neglect. They do not have
to have a signed authorization or a subpoena to obtain the child’s records. The
clinician and the staff are immune from breach of patient confidentiality if the
information released is relevant to protect the child. We recommend you verify
the identity of the CPS representative or law enforcement officer and thoroughly
document in the child’s chart the information released, to whom it was released,
and the reason it was released. You may not release information pertaining to the
parent(s) without authorization or court order.
5. Use these guidelines for release of records. Clinicians should comply with record
requests from attorneys and insurance companies on a timely basis. There is a need
to be sensitive about sending only records that are authorized and requested. The
release of records to parties other than those providing care to the patient relating
to HIV/AIDS, STDs, mental health treatment, or substance abuse is authorized
only upon receipt of specific patient consent. To satisfy these requirements, you
may provide requesting parties with the Authorization to Use or Disclose Health
Care Information form developed by Physicians Insurance. When responding to
a proper request for a complete copy of the medical record, the records produced
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by a medical office should include copies of medical records received from other
practitioners.
A request for records from a patient or an attorney can mean there is a loss of rapport, so the clinician should be alerted to review such requests and take appropriate action.
The medical records law in Washington State allows you to charge no more than
$0.96 per page for the first 30 pages plus $0.73 per page thereafter. A $22 clerical
feel for searching and handling may be charged under state law, but federal law
prohibits charging this fee to the patient or the patient’s representative. This fee
schedule is subject to change every two years and the fees listed above became effective July 1, 2007. Clinicians must not delay complying with a properly authorized medical records request merely because of an unpaid medical bill.
6. Be respectful of patients. Some staff members believe that being casual and calling a patient by his or her first name puts the patient at ease, which it may do
in some cases. However, some people resent such familiarity. Be sensitive to the
patient’s preference.
7. Avoid lengthy waiting time. If you anticipate the patient will have a long wait, advise the patient and indicate how long you expect the wait to be. The back office
staff should always inform the front office staff of waiting times. Let the receptionist know if the physician is running late. Some people may prefer to reschedule an appointment—please give them that option.
8. Make sure the patients in your office understand how to obtain care after hours. A
practice information brochure can help in this area, as well as information provided through your answering service.
9. Call day-surgery patients within 24 hours following the procedure. It is advisable
(as well as helpful in continuing rapport) to initiate a call to these patients after
the procedure. Document the follow-up call in the patient’s chart.
10. Tell the clinician when a patient complains. Some patients are reluctant to complain directly to the clinician and instead vent their feelings to the office staff.
Such complaints should be reported immediately to the clinician and/or the
practice administrator, who can decide whether or not to talk to the patient to
prevent minor matters from becoming major ones.
11. Before sending a patient’s bill to collection, consult with the clinician. In some
instances, it might not be appropriate to send the bill of a dissatisfied patient to
collection.
12. Put it in the record. When a patient fails to come in for an appointment or cancels
a scheduled test or follow-up visit, it should be noted in the patient’s chart and in
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the appointment log. No-shows should be flagged for the clinician’s attention for
further follow-up as indicated.
13. Using a patient-completed health history questionnaire reduces your risk. With
some exceptions, we recommend that all new patients complete a health history
questionnaire to supplement the comprehensive history taken by the clinician.
This information can often be combined with the patient registration form that
most clinicians use. At the very least, the health history questionnaire should
cover allergies, diseases, and medications. Depending on the clinician’s specialty,
questions can vary as to type and number.
14. Documentation of medications reduces your risk. Without exception, all medication samples, prescriptions, and refills should be documented in the chart. Ideally,
documentation should be on a medication flowsheet so that the medication history can be easily identified. It is acceptable for the staff to refill certain medications without checking immediately with the clinician with prescriptive authority as long as a prescription refill policy has been established.
15. Use a dictated record. With few exceptions, the dictated record has become the
standard. We find that malpractice cases are easier to defend with the use of a dictated record, since the quality of documentation is usually better. Although there
are increased costs for a dictated record, we are convinced that this record format
not only reduces malpractice exposure but also lends a higher degree of productivity to medical offices. Typical time for dictation, transcription, and filing is 24 to
48 hours from the time of service.
16. Document the chart when a patient is contacted about test results or follow-up
treatment. An individual responsible for contacting a patient about test results
or follow-up treatment should document the contact in the patient’s chart. The
failure to report the results of diagnostic tests and X-rays in a timely fashion to
a patient can make a malpractice case difficult to defend. Do not file any clinical
documents in the patient’s chart unless the clinician has “signed off” on them.
17. Always retain original records and X-rays. You can make copies, but retain all
originals. If you have to release original X-rays, document in the chart when,
where, and why the originals were released.
18. Use these recommendations for records retention. Our basic guideline is “6-1021 years.” Clinicians should keep records at least six years from the date of the
patient’s death, at least ten years after the patient’s last visit, and, in the case of
minors, pediatric, or obstetric care, 21 years from the date of birth. We believe
this guideline will protect the clinician even though the statute of limitations is
frequently changing and is subject to judicial interpretation. We recommend that
appointment schedules be retained for at least 10 years. Records of a potentially
litigious patient should be saved indefinitely.
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19. Written protocols reduce your risk. We recommend the establishment of written
protocols with staff concerning the more basic clinical aspects of medicine, such
as prescription refills and telephone triaging. Although many clinicians have a
good working relationship with their staff, written protocols can prevent misunderstandings about what the nurses or medical assistants can do without first
confirming with the provider. Write protocols that can and will be followed. Orient all new staff members to the written protocols, and periodically review them
with the entire staff.
20. Be aware of the law concerning HIV/AIDS testing. Due to epidemiology and
politics, the law concerning HIV/AIDS is constantly evolving. As a general rule,
we recommend that HIV/AIDS counseling and testing be provided by the
public health department, which is well equipped for this process and generally
has knowledge concerning the current law. If the clinician plans to test for HIV/
AIDS, we recommend the use of the Washington State Department of Health
consent form or the consent forms and patient information developed by your
local city or county health department.
21. Notify patients by mail when you are going to terminate their care. A certified
letter, return receipt requested, should be sent to the patient explaining that your
office will no longer provide care for him or her, but that you will continue to
provide routine and emergency care for a specified length of time. The length of
time depends on the availability of other medical care, but should be no less than
30 days. The letter should provide a referral to another source of medical care. File
the signed receipt and a copy of the letter in the patient’s chart. If the certified
letter is returned unclaimed, place the unopened returned letter in the chart, send
a copy of the letter through the normal mail route and document the same.
22. Fee reduction is not an admission of liability. It is important to remember that it is
not an admission of liability to discount a professional fee, and we do not believe
patients perceive this to be an admission of liability.
23. Bring legal documents immediately to the attention of the clinician and/or practice administrator.
These guidelines outline some of the measures to reduce liability risks in a medical practice. Orient new staff members to these guidelines, and review them at regular intervals.
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Patient Billings and Collections
Overdue and uncollectible patient accounts are common in medical practice. Every physician has
the right to be compensated for services, but fee disputes or aggressive collection efforts can lead to
malpractice lawsuits, especially if a patient believes the treatment was less than optimal.
To reduce misunderstandings, we recommend you train an appropriate staff person to provide all
patients with information about your fees. If care will be expensive, we suggest you or a trained
staff person discuss fees with your patients in advance and explain that complications may result in
additional costs. Be sure to ask patients to check their insurance coverage for any exclusions, deductibles, or second-opinion requirements.
A patient’s complaints about billing can indicate dissatisfaction with the care provided. Any verbal
or written fee dispute should immediately be brought to your attention. With early intervention
and a bit of tact and diplomacy, you will not only increase your chances of being paid, but possibly
avert patient anger and keep it from escalating into a malpractice suit. If a patient requests a full
or partial refund because of an adverse outcome, you should contact the Claims Department for
advice.
Many physicians are concerned that offering to waive a bill or pay part or all of a patient’s medical
expenses might be interpreted as an admission of liability. While some patients may feel this way,
most interpret such assistance as a compassionate gesture. Furthermore, state law provides that
furnishing, offering, or promising to pay medical expenses is generally not admissible as proof of
liability in a malpractice suit. (RCW 5.64.010)
When medical practices submit accounts to collection agencies without the knowledge and consent of the involved physician, they increase their chances of receiving surprise malpractice claims.
If collection efforts by your office prove unsuccessful, we suggest that the physician decide whether
to turn the account over to an agency. Before making the decision, the physician should carefully
review the patient’s chart and consider any possible mitigating circumstances.
Be sure that any collection agency you employ has been instructed to obtain your permission in
writing before filing a suit. If a patient is thinking about filing a malpractice suit because of your
collection activities, he or she is most likely to take action if you threaten a collection lawsuit. Keep
in mind that winning a collection judgment and actually getting the money owed are sometimes
two different things. Unless the court allows you to garnish the patient’s wages, collecting on a
judgment can be difficult. Since the average collection agency charges a 50% fee, the physician can
usually recover no more than half the money owed. Many physicians reserve collection lawsuits for
cases involving substantial professional fees.
Remember that a financial dispute with a patient is not grounds for refusing a request to provide
copies of medical records. Both the American Medical Association and the Washington State
Medical Association have decided that withholding medical records pending payment for services
is unethical. It is appropriate, however, to require insurance companies and attorneys to prepay for
medical record copies or medical reports. HIPAA privacy rules contain language that effectively
prohibits denying a patient access to his or her records because of a financial dispute.
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Are You Prepared for an Office Emergency?
Acute medical emergencies can occur in any medical office. A clinician’s ability to respond effectively may mean the difference between life and death for a patient, a family member, or an
employee. In an emergency, clinicians must be able to stabilize the patient and quickly arrange
for further intervention. Effective emergency response in a medical office involves more than a
crash cart; it requires equipment, training, and a plan.
Equipment
The first component of emergency response is equipment. As a minimum standard, every
practice should have the capability of a basic life support (BLS) response to emergencies such
as cardio/respiratory arrest or anaphylactic shock. BLS equipment includes oxygen, an oxygen
mask, a bag resuscitator, oral airways, IV epinephrine and diphenhydramine, and other essential
equipment and drugs relevant to your special practice requirements. Additionally, if your practice treats children, you must include pediatric-sized equipment.
Several factors affect the level of response an office should have: patient demographics, location,
the availability of medical resources nearby, and the level of emergency medical services in the
community. Though opinions differ about which practices should have advanced life support (ALS) or advanced cardiac life support (ACLS) abilities, those that do commonly include
multi-specialty, primary care, or cardiology practices; serve significant numbers of young, elderly,
or medically fragile patients; operate in rural or isolated areas; or receive only basic emergency
medical services response from the community.
ALS or ACLS equipment, which can vary from simple drug kits to full crash carts with defibrillation and intubation capabilities, is only as good as the skills of the clinician using it. In fact, it
is best not to have ALS or ACLS equipment, or to attempt ALS or ALCS resuscitation, if the
clinicians’ life-support skills are not current. All practices should check their ALS or ACLS
equipment at least quarterly on a log sheet to monitor the equipment’s accessibility and functionality and each medication’s expiration date.
Training
The second component of emergency response is training. Because BLS, ALS, or ACLS training is available from numerous sources, including most hospitals, all medical office personnel
should have at least BLS training. Many hospitals require physicians to have ACLS certification
to maintain active privileges.
However, because relatively few medical offices experience acute medical emergencies, the
skills of many clinicians are typically not current. Every medical practice should require periodic recertification of life-support skills.
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Emergency plan
The final component of emergency response is a written emergency plan. Specific responsibilities for each staff member should be detailed in the event of an emergency. Periodic emergency
drills are the best way to test staff response and resuscitation capabilities. A true emergency is
not the time to discover that the emergency drug kit has expired or the defibrillator has discharged.
Part of the emergency plan should provide for calling the local emergency medical service when
necessary. While the appropriate clinicians begin basic or advanced life support, a designated
person should call 911 as soon as possible. Because of equipment and liability issues, most hospital code teams or emergency department providers will not respond to emergencies off hospital
grounds. The typical aid unit is better trained, equipped, and experienced to deal with medical
emergencies than the typical medical office and can take over for you upon their arrival.
Conclusion
An effective response to office emergencies requires the necessary equipment, training, and
emergency plan. In an emergency, practices must be able to adequately stabilize the patient
while arranging for transfer.
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Semiautomatic External Defibrillators
According to the American Heart Association, heart disease is the number-one killer in the
United States. Some 950,000 adult Americans die each year from cardiovascular disease, and approximately 250,000 of these deaths occur from sudden cardiac arrest. One of the most frequent
reasons for sudden cardiac arrest is ventricular fibrillation (VF). The most effective treatment for
VF is defibrillation­—the application of a measured electrical shock to the patient’s chest.
Why are AEDs getting so much attention?
While cardiopulmonary resuscitation is a critical step to provide temporary artificial breathing
and circulation, the only effective way to fully resuscitate a victim of VF is defibrillation. Statistics indicate that for every minute a victim remains in VF, the chance for successful resuscitation
drops by 10%, so that at 10 minutes without defibrillation, the chance for a successful resuscitation is roughly zero. Studies also reveal that survival rates from VF cardiac arrest are as high
as 74% when defibrillation is used within three minutes, compared to a 5% survival rate when
defibrillation is not immediately available. The bottom line is this: the sooner defibrillation is
started, the more likely the victim will survive. Automatic external defibrillator (AED) technology is a safe, effective, and easily implemented tool for treating victims of VF.
Is there really a risk for physicians?
In response to the alarming statistics regarding the prevalence of sudden cardiac arrest and the
encouraging data for successful resuscitation with AED technology, there are now many efforts,
both nationally and statewide, to encourage the distribution and availability of AEDs. As the
distribution and use of AEDs has increased in public areas such as shopping malls, schools, professional sport arenas, airports, airliners, and other public settings, many medical practices have
considered making this effective lifesaving technology available within their own practices.
However, some providers are concerned that having an AED within their practices might
increase their liability exposure. This is not the case. In fact, Physicians Insurance claim data
and national claim trends show no increase in liability exposure. Further, the user of an AED is
afforded clear protection from civil liability under Washington state law—as long as the AED
acquirer meets certain fundamental requirements including prescription, training, maintenance,
notification, and contact with emergency services following AED use. The requirements and
subsequent protection are outlined in RCW 70.54.310 as follows:
RCW 70.54.310
Semiautomatic external defibrillator–Duty of acquirer–Immunity from civil liability.
(1) As used in this section, “defibrillator” means a semiautomatic external defibrillator as prescribed by a physician licensed under chapter 18.71 RCW or an osteopath licensed under chapter 18.57 RCW.
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(2) A person or entity who acquires a defibrillator shall ensure that:
(a) Expected defibrillator users receive reasonable instruction in defibrillator use and cardiopulmonary resuscitation by a course approved by the department of health;
(b) The defibrillator is maintained and tested by the acquirer according to the manufacturer’s operational guidelines;
(c)
Upon acquiring a defibrillator, medical direction is enlisted by the acquirer from a
licensed physician in the use of the defibrillator and cardiopulmonary resuscitation;
(d) The person or entity who acquires a defibrillator shall notify the local emergency medical services organization about the existence and the location of the defibrillator; and
(e) The defibrillator user shall call 911 or its local equivalent as soon as possible after the
emergency use of the defibrillator and shall assure that appropriate follow-up data is
made available as requested by emergency medical service or other health care providers.
(3) A person who uses a defibrillator at the scene of an emergency and all other persons and entities providing services under this section are immune from civil liability for any personal injury
that results from any act or omission in the use of the defibrillator in an emergency setting.
(4) The immunity from civil liability does not apply if the acts or omissions amount to gross negligence or willful or wanton misconduct.
(5) The requirements of subsection (2) of this section shall not apply to any individual using a
defibrillator in an emergency setting if that individual is acting as a good samaritan under RCW
4.24.300.
[1998 c 150 § 1.]
Conclusion
The acquisition of an AED for your medical practice adds a valuable tool to your emergency
response capability whether the emergency involves a patient, staff member, or the general
public. With appropriate staff training and satisfaction of the other basic requirements of RCW
70.54.310, you can feel confident that this technology can be utilized, without hesitation, in
responding to a medical emergency. Remember, the documented incidence of patient injury
arising out of the use of AED technology is virtually zero, and the worst that can happen is that
you may save a life!
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Section 6
Treatment of Minors
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Treatment of Minors and
the Handling of Their PHI
Washington State law allows minors under the age of 18 to consent to medical care and treatment under certain conditions that are described below. State law allows minors to make
decisions about the handling of their Protected Health Information (PHI) when the law allows
them to consent for their own treatment. The HIPAA Privacy Rule does not preempt state law
in this regard.
A person under the age of 18 cannot consent to medical care unless one or more of the following
exceptions apply:
• If the minor is emancipated (legally independent) or married to someone at or above
age 18. (RCW 26.28.020)
• In the event emergency care is necessary. (When impractical to get parental consent
first)
• For birth control and pregnancy-related care at any age. (See State v. Koome)
• For outpatient drug- and alcohol-abuse treatment beginning at age 13. (RCW
70.96A.095)
• For outpatient mental health treatment beginning at age 13. (RCW 71.34.500 and
71.34.530)
• For sexually transmitted diseases, including HIV/AIDS, beginning at age 14. (RCW
70.24.110)
Documentation
The underlying facts for the application of any of these exceptions should be documented in the
medical record at the time of treatment. When consent forms are applicable to these exceptions, such as pregnancy termination, the minor may sign these forms. Due to the minor patient’s relative immaturity and lack of sophistication, adequate time needs to be spent concerning these consent issues.
Emancipation
A person under the age of 18 who is either emancipated or married to a spouse 18 years of age or
older can consent to his or her own medical care. An emancipated minor is an individual who is
free from parental control and is self-supporting.
Emergencies
State law provides that no clinician or hospital is liable for failing to secure consent when rendering emergency medical, surgical, hospital, or health services to any individual, regardless of
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age, where the patient is unable to provide consent for any reason and where there is no other
person reasonably available who is legally authorized to give such consent. Emergency care
should not be unduly delayed pending attempts to obtain any such consent. If the child’s condition could deteriorate, treatment should begin at once and permission to treat should be sought
concurrently. Although “emergency” can be defined either broadly or narrowly, we believe
the interpretation should be considered as broader than “life threatening.” For example, in the
instance of an upper respiratory infection in a child, we believe that treatment should be started
even if consent is not readily available. Although it could be argued that in most cases a delay in
treatment of an upper respiratory infection will not cause sequelae, clearly a delay in treatment
increases a child’s suffering, and we can’t conceive of an instance where a parent would refuse
this care and a court would support such a decision. As in most cases, the issue of determining
when to treat without parental or guardian consent requires good judgment and common sense.
In cases involving minors, clinicians or hospital personnel should thoroughly chart their efforts
to contact the parent or guardian for consent for emergency care. If parental consent is obtained
by phone, document it in the chart.
Sexual activity, substance abuse, and mental health
Courts and legislatures have granted minors the right to consent to medical care in a number of
situations where forced consultation would most likely deter the minor from seeking needed
treatment. A minor may consent to medical care relating to birth control, medical conditions
relating to pregnancy, and pregnancy terminations. Persons 14 years of age or older may give
their own consent for medical care relating to HIV/AIDS or sexually transmitted diseases.
Persons 13 years of age or older may give their own consent for outpatient mental health care or
the outpatient treatment of substance abuse. However, minors cannot be admitted for inpatient
treatment of substance abuse or mental health without parental consent or a commitment order.
Cost of care
For other than emergency care, parents or guardians are not liable for the cost of care provided
without their consent when the minor has the right to consent without consulting the parents.
In these instances, each minor needs to be informed that he or she will be responsible for paying
for services, and appropriate arrangements should be made.
Divorced or separated parents
For health care of a minor that does require parental consent, the parent or guardian who brings
the child to the medical office can provide consent for the child’s care. A parent or guardian can
provide consent for the treatment of a minor child regardless of whether the parents are married, unmarried, or separated at the time of the treatment. This applies whether the parent is
the custodial parent or not, and whether or not there is a court order affecting the parent’s right
to consent to the minor’s medical care. You may treat a minor when one parent provides consent
to care even if the other parent demands you not treat the minor, although there may be occasional circumstances where, in your judgment, you choose not to provide care when the parents
disagree.
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Conclusion
The law concerning treatment of minors has numerous exceptions and nuances, and this article
attempts to focus on the most common issues. It does not address the more case-specific problems related to extremely immature minors who may lack mental competence to consent, the
court-ordered treatment of minors, or the right of minors to refuse medical care. If health care
providers use their common sense and their best judgment, with an emphasis on what is best
for the patient, the liability risk will be minimized. Whenever difficult case-specific consent
issues arise, please call the Risk Management Department at 206-343-6526 or 1-800-962-1399
(Western Washington) or 509-456-5868 or 1-800-962-1398 (Eastern Washington).
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Important Information to Parents and Guardians
of Minor Children (Washington State)
The providers and staff of (insert your clinic name here) place great emphasis on the health and well
being of each and every patient in our clinic and we appreciate that you have entrusted us to provide
health care services to your minor child. We look forward to working with you to ensure that your
child receives the best health care possible.
As a general rule, we require the consent of a parent or legal guardian in order to provide health care
services to a minor child (an unmarried person under the age of 18). With so many parents working
outside the home or with other commitments, we realize that you may not be able to accompany
your child on every visit to the clinic. If your minor child presents to the clinic unaccompanied or
in the company of an adult other than a parent or legal guardian, we will do our best to attempt to
contact you for consent. Depending upon the reason for the visit, if we are unable to contact you for
consent, we may need to reschedule the appointment.
In an effort to provide the care needed and avoid having to reschedule your child’s appointment, we
have developed an Advance Consent to Treat Minors form that, once completed by a parent or legal
guardian, will be placed in your child’s medical record for use as necessary. This form will allow us to
provide routine and emergency medical treatment for your minor child when deemed necessary by
qualified medical personnel. This consent form will remain in effect until revoked in writing. You
may request this form from any member of our clinic staff.
Under Washington State law, minors have the right to consent to certain health care without a parent or guardian’s consent. A minor may consent to medical care:
• If the minor is emancipated (legally independent) or married to someone at or above age 18. (RCW 26.28.020)
• In the event emergency care is necessary. (When impractical to get parental consent first)
• For birth control and pregnancy-related care at any age. (See State v. Koome)
• For outpatient drug- and alcohol-abuse treatment beginning at age 13. (RCW 70.96A.095)
• For outpatient mental health treatment beginning at age 13.(RCW 71.34.500 and 71.34.530)
• For sexually transmitted diseases, including HIV/AIDS, beginning at age 14. (RCW
70.24.110)
If a minor consents to care as allowed by law, he or she can request confidentiality for that aspect of
care which would prohibit us from releasing this information to anyone, including a parent or guardian, without the minor’s express written permission.
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It is the philosophy of this clinic to encourage minor patients to include a parent, guardian, or
other trusted adult in all aspects of their health care including those areas noted above. For legal
and other reasons, parent or guardian involvement may not always be possible. Rest assured that
we would continue to provide health care services that are in the best interests of your minor
child.
If you have questions regarding any of this information, please contact your child’s primary care
provider.
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Section 7
Sample Forms and Letters
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Agreement for Use of Medication
in Pain Management
Patient Name (Please Print)
Date of Birth Clinician Name Date Effective pain management requires that the patient and the physician work together. This agreement
is designed to make sure that you understand the rules we will use in your care. If you do not understand
any part of this agreement, please discuss it again with your clinician. It is important that you understand
that if you do not fulfill your obligations in your care, we will be less effective in helping you and might
have to stop treating you altogether.
Please read and follow this agreement carefully. Help us to help you.
1. You must have a primary care physician (PCP). The name of the PCP is 2. You may fill your initial prescription at the pharmacy of your choice. However, all refills
must be made with the same pharmacy.
Pharmacy Name Phone Number 3. You must take your medication as prescribed. If you choose to change the way you are taking your medication, please discuss it with your doctor beforehand.
4. You agree to take only your own medication. Do not take someone else’s medication even
if you think it is the same medication. Do not share your medication with anyone else.
5. You agree that we will be the only clinicians prescribing pain medication and other controlled substances (narcotics, tranquilizers, muscle relaxants, or sedatives) for you. You must
let us know about any medications prescribed for you by other physicians or any other
health care providers.
6. You must agree not to take any street or recreational drugs during the course of treatment.
7. You agree to advise us of any over-the-counter drugs, vitamin supplements, and herbal
remedies you are taking.
8. You give consent for on-demand, unscheduled toxicology screening (drug testing).
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9. Usually, we will prescribe enough medication to last until your next visit or next
scheduled medication refill date. We will not provide additional refills before
that. You are responsible for notifying us at least three (3) days before your narcotic medication runs out. You must call during regular office hours for your refills.
Refills for medications are not given on an emergency basis. Refills are not given
after hours, on weekends, or on holidays.
10. Prescriptions are like money. If you lose your medication or the written prescription, it will not be replaced. You will have to wait until your next visit or scheduled refill date.
11. You are required to attend all follow-up appointments scheduled for you. If you
must reschedule the appointment, you must call 24 hours in advance.
By signing below, you are agreeing with these rules and agreeing that you have read and understood them. In addition, you are indicating that your questions have been answered to your
satisfaction. If you feel you will not be able to honor the commitments made in this agreement,
you may notify us now or at any time. If you are not able to live by the agreement, we may need
to terminate your care with us. If this occurs, we will attempt to notify you either in person or at
your last known address or phone number.
Also by signing below, you are giving us permission to share this agreement with your primary
care provider and pharmacy.
Patient/legally authorized representative signature Date
Health care provider signature Date
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Employee Confidentiality Statement
All patient protected health information (PHI – which includes patient medical and financial information), employee records, financial and operating data of [insert name of practice/health care facility], and
any other information of a private or sensitive nature are considered confidential. Confidential information
should not be read or discussed by any employee unless pertaining to his or her specific job requirements.
Examples of inappropriate disclosures include:
• Employees discussing or revealing PHI or other confidential information to friends or family members
• Employees discussing or revealing PHI or other confidential information to other employees without a legitimate need to know
• The disclosure of a patient’s presence in the office, hospital, or other medical facility, without the
patient’s consent, to an unauthorized party without a legitimate need to know, and that may indicate the nature of the illness and jeopardize confidentiality
The unauthorized disclosure of PHI or other confidential information by employees can subject each
individual employee and the practice to civil and criminal liability. Disclosure of PHI or other confidential
information to unauthorized persons, or unauthorized access to, or misuse, theft, destruction, alteration,
or sabotage of such information, is grounds for immediate disciplinary action up to and including termination.
Employee confidentiality agreement
I hereby acknowledge, by my signature below, that I understand that the PHI, other confidential records,
and data to which I have knowledge and access to in the course of my employment with [insert name of
practice/health care facility] is to be kept confidential, and this confidentiality is a condition of my employment. This information shall not be disclosed to anyone under any circumstances, except to the extent
necessary to fulfill my job requirements. I understand that my duty to maintain confidentiality continues
even after I am no longer employed.
I am familiar with the guidelines in place at [insert name of practice/health care facility] pertaining to the
use and disclosure of patient PHI or other confidential information. Approval should first be obtained
before any disclosure of PHI or other confidential information not addressed in the guidelines and policies
and procedures of [insert name of practice/health care facility] is made. I also understand that the unauthorized disclosure of patient PHI and other confidential or proprietary information of [insert name of
practice/health care facility] is grounds for disciplinary action, up to and including immediate dismissal.
Date
Printed name of employee
Signature of employee
Printed name of supervisor
Signature of supervisor
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Notice of Privacy Practices
This notice describes how medical information about you may be used and disclosed, and
how you can get access to this information. Please review it carefully.
[Insert name of practice/health care facility] respects your privacy. We understand that your personal health information is very sensitive. We will not disclose your information to others unless
you tell us to do so, or unless the law authorizes or requires us to do so.
The law protects the privacy of the health information we create and obtain in providing our care
and services to you. For example, your protected health information includes your symptoms, test
results, diagnoses, treatment, health information from other providers, and billing and payment
information relating to these services. Federal and state law allows us to use and disclose your
protected health information for purposes of treatment, payment, and health care operations.
Examples of uses and disclosures of protected health information for treatment, payment, and
health care operations:
For treatment:
• Information obtained by a nurse, physician, or other member of our health care team will
be recorded in your medical record and used to help decide what care may be right for
you.
• We may also provide information to others providing you care. This will help them stay
informed about your care.
For payment:
• We request payment from your health insurance plan. Health plans need information
from us about your medical care. Information provided to health plans may include your
diagnoses, procedures performed, or recommended care.
For health care operations:
• We may use your medical records to assess quality and improve services.
• We may use and disclose medical records to review the qualifications and performance of
our health care providers and to train our staff.
• We may contact you to remind you about appointments and give you information about
treatment alternatives or other health-related benefits and services.
• We may contact you to raise funds.
• We may use and disclose your information to conduct or arrange for services, including:
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• Medical quality review by your health plan;
• Accounting, legal, risk management, and insurance services; and
• Audit functions, including fraud and abuse detection and compliance programs.
Your health information rights
The health and billing records we create and store are the property of [insert name of practice/
health care facility]. The protected health information in it, however, generally belongs to you.
You have a right to:
• Receive, read, and ask questions about this Notice.
• Ask us to restrict certain uses and disclosures. You must deliver this request in writing
to us. We are not required to grant the request. But we will comply with any request
granted.
• Request and receive from us a paper copy of the most current Notice of Privacy Practices for Protected Health Information (“Notice”).
• Request that you be allowed to see and get a copy of your protected health information.
You may make this request in writing. We have a form available for this type of request.
• Have us review a denial of access to your health information—except in certain circumstances.
• Ask us to change your health information. You may give us this request in writing. You
may write a statement of disagreement if your request is denied. It will be stored in your
medical record, and included with any release of your records.
• When you request, we will give you a list of disclosures of your health information. The
list will not include disclosures to third-party payers. You may receive this information
without charge once every 12 months. We will notify you of the cost involved if you
request this information more than once in 12 months.
• Ask that your health information be given to you by another means or at another location. Please sign, date, and give us your request in writing.
• Cancel prior authorizations to use or disclose health information by giving us a written
revocation. Your revocation does not affect information that has already been released.
It also does not affect any action taken before we have it. Sometimes, you cannot cancel
an authorization if its purpose was to obtain insurance.
For help with these rights during normal business hours, please contact:
[Insert name or title of designated staff member]
[Insert phone number or address]
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Our responsibilities
We are required to:
• Keep your protected health information private.
• Give you this Notice.
• Follow the terms of this Notice.
We have the right to change our practices regarding the protected health information we maintain. If we make changes, we will update this Notice. You may receive the most recent copy of
this Notice by calling and asking for it or by visiting our [office/medical records department] to
pick one up.
To ask for help or complain
If you have questions, want more information, or want to report a problem about the handling
of your protected health information, you may contact:
[Insert name or title of designated staff member]
[Insert phone number or address]
If you believe your privacy rights have been violated, you may discuss your concerns with any
staff member. You may also deliver a written complaint to [insert name or title of person] at [insert name of practice/health care facility]. You may also file a complaint with the U.S. Secretary
of Health and Human Services.
We respect your right to file a complaint with us or with the U.S. Secretary of Health and Human Services. If you complain, we will not retaliate against you.
Other disclosures and uses of protected health information
Notification of family and others
• Unless you object, we may release health information about you to a friend or family
member who is involved in your medical care. We may also give information to someone
who helps pay for your care. We may tell your family or friends your condition and that
you are in a hospital. In addition, we may disclose health information about you to assist
in disaster relief efforts.
• [Hospitals] Information may be provided to people who ask for you by name. We may
use and disclose the following information in a hospital directory:
• Your name
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• Location
• General condition
• Religion (only to clergy)
You have the right to object to this use or disclosure of your information. If you object, we will
not use or disclose it.
Some of the ways that we may use and disclose your protected health information without your authorization are as follows:
• With medical researchers—if the research has been approved and has policies to protect the privacy of your health information. We may also share information with medical researchers preparing to conduct a research project.
• To funeral directors/coroners consistent with applicable law to allow them to carry out
their duties.
• To organ procurement organizations (tissue donation and transplant) or persons who
obtain, store, or transplant organs.
• To the Food and Drug Administration (FDA) relating to problems with food, supplements, and products.
• To comply with workers’ compensation laws—if you make a workers’ compensation
claim.
• For public health and safety purposes as allowed or required by law:
• To prevent or reduce a serious, immediate threat to the health or safety of a person
or the public.
• To public health or legal authorities:
• To protect public health and safety.
• To prevent or control disease, injury, or disability.
• To report vital statistics such as births or deaths.
• To report suspected abuse or neglect to public authorities.
• To correctional institutions if you are in jail or prison, as necessary for your health and
the health and safety of others.
• For law enforcement purposes such as when we receive a subpoena, court order, or
other legal process, or you are the victim of a crime.
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• For health and safety oversight activities for example, we may share health information
with the Department of Health.
• For disaster relief purposes for example, we may share health information with disaster
relief agencies to assist in notification of your condition to family or others.
• For work-related conditions that could affect employee health for example, an employer may ask us to assess health risks on a job site.
• To the military authorities of U.S. and foreign military personnel for example, the law
may require us to provide information necessary to a military mission.
• In the course of judicial/administrative proceedings at your request, or as directed by a
subpoena or court order.
• For specialized government functions for example, we may share information for national security purposes.
Other uses and disclosures of protected health information
• Uses and disclosures not in this Notice will be made only as allowed or required by law
or with your written authorization.
Web site
• We have a Web site that provides information about us. For your benefit, this Notice is
on the Web site at the following address: [insert Web site address].
Effective date
[Insert effective date of the Notice]
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Prescription Refill Policy
This is a sample policy only. Physicians Insurance provides this sample for use as an idea springboard for offices developing or reviewing their own forms and policies.
POLICY:
Renewing prescriptions for patients on chronic medical therapy provides an opportunity to
evaluate patient compliance with prescribed therapy, monitor therapeutic blood levels, and
assess the need for follow-up office visits.
PROCEDURES:
1. We ask 24-48 hours notice for prescription refills to be completed.
2. After receiving a refill request from a patient or pharmacy, pull the patient’s chart.
3. Determine the date of the patient’s last office visit. Patients on chronic medical therapy
need to be evaluated by their health care provider on a yearly basis.
4. All narcotics and benzodiazepines require provider authorization.
5. Note the last therapeutic blood level or laboratory screening for patients requesting
refills of medications requiring the same.
6. Renew medications for six months if the patient is routinely coming to the office, blood
levels are therapeutic, the patient is compliant with laboratory screening as required,
and/or there is no chart note indicating the need for other interim follow-up care.
7. Renew a one-month supply of medication if the patient is lacking one of the above.
Inform the patient and/or pharmacy that the patient needs to be evaluated by their
health care provider before further refills will be authorized.
8. Document the prescription refill on the medication flowsheet and/or in a progress note
entry if indicated.
9. Always consult the attending or covering provider if you have any questions regarding a
refill request.
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