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| Eleven Risk-Proofing Tips to Mitigate Med-Mal Allegations |
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by Marcos A. Vargas, MSHA, PA-C - November 10, 2010
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Over the years, as a clinical Risk Management lecturer I have been asked many good questions, all with very similar concerns to some extent or another. Yet by far, regardless of whether the individual is a new PA graduate or a seasoned NP, the question I repeatedly get asked the most is this one: "what do I do or how do I avoid an allegation of medical malpractice?”
And in spite of continuous industry changes, my reply remains the same; engage and recognize the utility of practicing M-A-L-P-R-A-C-T-I-C-E. And never has this advice (a Risk Management Mnemonic Tool) and strategy been more applicable than today given the litigious working environments most specialty PAs & NPs find themselves practicing.
Incredibly as counterintuitive this set of systematic Risk Management techniques may sound or appear to you, they can indeed, if adhered to and implemented correctly, can minimize or ward off your liability exposures. In fact, these easy-to-follow & easy-to-remember clinical practice tips can risk-proof your career with time-tested sound Risk Management strategies.
So how does practicing M-A-L-P-R-A-C-T-I-C-E work? Oddly enough, most NPs/PAs can learn and/or recall a lot more when associating potential perils of clinical practice with each letter of the word malpractice. By linking each letter with a particular “legal minefield” along with their respective Risk Management countermeasure, not only are you mitigating allegations of professional negligence, but safeguarding your career as well in the long run.
Mnemonic Applicability:
Now let’s examine how this proactive problem-solving tool is designed to remind you of integrating systematically sound patient-centered activities represented by each letter. Consider if you will, each one of them as follows:
M: (Missed Diagnosis):
To avoid potential allegations of Missed Dx you must avoid “tunnel-vision” thinking. In other words, you must think broadly, plus document the Differential Diagnoses considered along with their respective unlikely probabilities in your workups. Remember stable co-morbidities can flare up abruptly. But more importantly, document even a brief laid out (written) clinical-decision making process entry in the medical chart. This career move seldom used by clinicians could be a career-saving move if patient’s multiple conditions addressed concomitantly along with new respective ailment or disease process were to change or worsen or remain unimproved.
A: (Assessment):
Ambiguous or atypical clinical presentations must be dealt with diligently. Do not engage in cursory examinations of patients, or “Glance Diagnoses”. Remember, not everything presents classically. Particularly any of these patient groups: 1) the very young, 2) the immunocompromised, and 3) the elderly or the mentally impaired. Cursory “key-hole” physical examinations often times may lead the clinician astray by missing subtle clinical presentations. Clinical underestimation usually results in errors of omission which can lead to dire consequences for both, the clinician and the patient as well.
L: (Legibility / Lost):
This next aspect of medical practice has always been a troublesome area for many practitioners. Sloppily written medical entries or illegible prescriptions have led to countless catastrophic medical errors. Why? Because they can easily lead to misunderstandings. Many juries will perceive this as a careless act. Even more so as an “inconsiderate professional behavior practice” that led to an adverse outcome since the defendant misled the interpreting parties.
Not to mention, illegible medical or prescription writing has been equated with “laziness” in many jurors’ minds. So if you do not want to be perceived as a hinderer of good communication, then you must adhere to standard medical abbreviations. Don’t skip decimal points, zeros etc.; use standard medical terminology and/or institution-specific approved abbreviations if you do not want an adverse outcome pegged to your illegible writing.
P: (Proper Documentation/ Patient Privacy Rights Protected):
Is the medical chart properly documented? The medical entries or wording should not hint dissenting opinions nor blame or aspersion of other past providers care. If need to, then you should objectively and factually state the reasons why you disagree with the proposed treatment plan or course of action. Again objectively and factually...period.
Also, never stereotype or use equivocal words. For example, it is best to say “patient admits…denies…states rather than saying patient is intoxicated or appears inebriated”. A factual entry would serve you best in the eyes of a jury. Such as this one: the patient is ataxic with a strong odor of ETOH on his breath. Here you establish a more objective & less judgmental-sounding entry into the record; hence, making your clinical assessment more objective.
Likewise, releasing patients’ medical information without their consent is tantamount to liability. As a medical provider, you have a duty of upholding and safeguarding their confidences and privacy under the constraints of the law. Even non-medical information disclosure about a patient can be deemed as a HIPAA Violation Claim. To repeat, it’s incumbent in you to avoid disclosing information without your patient’s consent, meaning outside the scope of HIPPA if you’re trying to run afoul of the law. This could include even releasing information to family members or close relatives or even "best friends"--beware at all times of this duty.
R: (Diagnostic Results Followed Through):
Another equally important peril is over reliance on diagnostic test results or lack of a reliable tracking system(s). Keep in mind that pathology or biopsy reports do not always exclude a condition even if reported negative in the outset. Perhaps the observer or interpreter could have missed it too. In sum, reassess patient’s condition periodically if highly suspicious for any potential life-threatening dermatological conditions or unimproved illnesses.
Likewise consider reconciling clinical and diagnostic discrepancies by repeating the test or exam. For example, in regards to dermal lesions, when in doubt re-biopsy or obtain wider margins if need to. Also, follow-up on obtaining/referring results too.
A: (Alliance Embraced):
Utilizing rapport-building techniques in your patient-provider relationships are surefire ways of lessening “paternalistic” medical practices. Those days are simply gone. Permit and allow your patients participatory input, obtain feedback of the proposed care treatment plans and decisions considered and/or undertaken. If possible, always consider documenting these in front of witnesses.
Keep in mind that transferring some medical responsibility onto the patient minimizes dependency while fostering a more self-empowered individual, making patients more compliant & accountable with their own treatment plans. Above all, by understanding and respecting your patients cultural idiosyncrasies and/or linguistic nuances you stand to solidify your provider-patient relationship.
C: (Clearly Disclosed Consent):
About procedural interventions, it is incumbent that explicit consent is always obtained regardless of how minimally invasive the procedure may be to you or the patients. In fact, many legal experts advocate that all likely outcomes be discussed, including “worse case scenarios”. This must be performed preferably in person & with a family member present. The purpose of this is twofold: 1) to serve as a witness, and 2) for social support to the patient. Essentially leave no room for misunderstandings which in essence is the underlying propelling force for allegations of Lack of Informed Consent.
T: (Timely Care or Specialist Referral Provided):
Allegations or claims of Delayed Diagnoses are based on the premise of untimely referral of the patient. Juries tend not to be forgiving if a patient’s window of opportunity was missed when a caregiver failed not only to proceed cautiously in the workup, but failed to expeditiously secure specialty care for a worrisome clinical presentation or ailment leading to a shortened lifespan. Such case scenarios ultimately lead to Wrongful Death claims if reasonable prompt medical services went un-provided to the decedent.
In summary, diligence in the form of rapid responsive advocacy evidenced as a timely referral to a higher care is of essence in the eyes of a jury, especially when dealing with high-risk diagnoses (i.e. Melanoma). So whenever in doubt refer, but more so promptly.
I: (Insured Properly?):
Every clinician understands the need to have Professional Liability protection. But few actually know their policy number, much less their coverage limits. In some cases under an employer-provided policy, the coverage may be underfunded or simply inadequate for your defense. Beware; don’t be lulled into a false sense of security because you may be provided with liability protection. Particularly if your employer has several of your colleague's under one policy or your employer’s coverage is a claims-made only policy. Thus leaving you unprotected if charges are raised after your period of employment has come to an end and/or the defense costs may have to been disbursed among several of your peers. Or separate multiple allegations were raised in the same year in which all were under the same policy. So know your limits.
C: (Crystal Clear Communication Style/Clinical Competence):
Culturally sensitive care and clear communication practices are the trade mark of successful clinicians. These caregivers know how to avoid the nuances of flawed communications. They avoid careless charting or insensitive discussions by providing clear instructions in both writing as well as verbally. Specifically, one of the best ways to implement this practice is by tailoring your educational materials or treatment plan instructions so a 6th grader could understand what you meant when following your post care advisory recommendations. Better yet, if at all possible, sit & avoid appearing rushed and establish eye contact during the encounter or with your patient.
E: (Ethical Practitioner):
Finally, we know that performing at all times with a high level of personal and professional integrity is not easy these days. An ethical transgression can lead to a liability exposure. For instance, any healthcare provider who knowingly and with intent to defraud any insurance company who submits materially false, incomplete information or conceals for the purpose of being a “patient advocate” is deemed to be committing a fraudulent insurance act. And under statutory law this is considered a crime for which the provider is subject to civil fines and/or criminal penalties. To top it off, these are not covered by malpractice insurance carriers.
Ultimately by upholding both ethical & clinical standards of your profession you lessen the potential of complaints, charges or disciplinary action against you by a court, a regulatory agency or any state licensing board.
Thus by recognizing, abiding & implementing these set of professional risk-proofed conduct rules, you not only acknowledges your duty to respect and honor patient self-autonomy, but stand a better chance of safeguarding your very own career by actively engaging in M-A-L-P-R-A-C-T-I-C-E.
Marcos A. Vargas, MSHA, PA-C is a Boston born and Puerto Rican bred individual who has an extensive healthcare industry background, both industry-related as a Pharmacy Technician during his undergraduate years, and industry-specific as a dually N.C.C.P.A. certified Physician Assistant in Surgery and Primary care after graduating from the University of Alabama—Birmingham Physician/Surgeon’s Assistant Program. He has held clinical positions in Cardiothoracic, General Surgery, & Emergency Medicine over the past twenty years. He holds a Master’s in Science Administration from Central Michigan University and a Healthcare Risk Management graduate certificate. He has been retained and consulted regularly by both plaintiff & defense law firms over the past 14 years. During this time, he has served as both a consulting medical reviewer and a PA expert. Marcos has lectured on Clinical Risk Management (PA) issues throughout the years to various Michigan-based PA Training Programs. He has done the same for lay audiences, covering a wide range of “Wellness” topics. He has been a supporter and associate member of numerous professional clinical and non-clinical organizations. Currently he is employed as an orthopedic PA at HMC.
The viewpoint expressed in this article is the opinion of the author and is not necessarily the viewpoint of the owners or employees at Healthcare Staffing Innovations, LLC.
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| Marcos A. Vargas, MSHA,PA-C (Michigan) |
on 18 Nov 2010 at 1:06 pm |
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I'm most appreciative of the compliment. Should you have any questions feel free to contact me at my email.
Cordially yours, |
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| ELIZABETH CALDWELL, RN, MSN, FNP (Highlands Ranch Colorado) |
on 18 Nov 2010 at 11:43 am |
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| Thank you. This is well-written and has good reminders; I appreciate it. |
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