In this episode, host Tony Passalacqua welcomes TMLT’s risk management leaders Tanya Babitch and Robin Desrocher, to discuss common liability exposures – and how to avoid them. Learn a variety of risk management tips to help you minimize potential allegations of medical liability.
Also available on Apple and Spotify. A transcript of this podcast is found below.
Additional episodes in this series:
Episode 5: Impact of technology on your organization today
Episode 3: Texas Medical Board defense
Episode 2: Five things that get physicians sued
Episode 1: Lawsuit defense
Transcript:
Tony Passalacqua: Hello and welcome to this edition of TMLT's podcast, TrendsMD. I'm your host, Tony Passalacqua, and today I will be speaking with Tanya Babitch and Robin Desrocher of TMLT. Tanya Babitch is the Assistant Vice President of the Risk Management Department and Robin Desrocher is the Director of the Risk Management Department.
Tanya and Robin are both longtime team members of TMLT and have helped policyholders in a variety of ways to avoid claims of medical liability. Risk management services provided by TMLT for TMLT’s policyholders include phone and email consultations; onsite practice reviews; CME seminars; and a dedicated website of TMLT’s CME courses and offerings.
Today’s topic is Risk Management’s Greatest Hits — this is also known as liability exposures that our Risk Management team has observed physicians sometimes struggle to address.
Thank you, Tanya and Robin, for joining us today!
Tanya Babitch: Hi, Tony.
Robin Desrocher: Hi, Tony.
Tony Passalacqua: So, I was wondering if you could share a little bit about yourselves with our audience. How long have you been with TMLT? And maybe a little bit about each of your backgrounds?
Tanya Babitch: Sure. This is Tanya and I have been with TMLT for a little over 22 years. I actually came from a medical center where I headed up the CME program and then before that I actually worked in the health information management department throughout college. I received a psychology degree from UT.
Robin Desrocher: And, hi, I’m Robin Desrocher. I’m a registered nurse with more than 35 years’ experience working in the health care industry. I spent many years caring for patients at the bedside in cardiology, cardiothoracic surgery, and critical care settings, and then I moved into ambulatory care working in multispecialty areas, and then transitioned into health care administration. I joined TMLT’s risk management team in 2006, and I’m honored to be celebrating my 18th year this month.
Tony Passalacqua: Congratulations on that anniversary. Tanya, what risk management tips would you like to share with us today?
Tanya Babitch: Well, Robin and I thought it would be interesting to talk about a number of risk management issues that we consider “oldies but goodies”— things that we have seen as issues for many, many years, that are STILL issues that affect patient care and medical liability claims. Robin will talk about a few things that we see in office practices, and then I’ll discuss a few questions that doctors contact us about — repeatedly — mostly because they are really challenging!
Tony Passalacqua: Robin, Is TMLT seeing claiming activity involving medication errors associated with the use of anticoagulants?
Robin Desrocher: We are, Tony. As a high-risk class of drugs, anticoagulants have been implicated in serious adverse events for many years. And we do continue to see medication errors in the management of warfarin specifically. While there are newer oral anticoagulants that do not require lab monitoring or careful consideration about dietary vitamin K intake, they are not appropriate for all conditions. They are also very expensive, and not everyone will qualify for assistance. Therefore, warfarin is still widely prescribed, and because routine lab monitoring is required for warfarin, non-compliance, tracking, and communication are areas where things can and do sometimes go wrong, leading to adverse outcomes.
Tony Passalacqua: Are there any pearls of advice that you can share with our listeners who are currently prescribing and monitoring patients on warfarin?
Robin Desrocher: There are. Managing the risks associated with anticoagulation therapy falls in the hands of physicians across all specialties. Proper management can reduce the chances of patients being harmed.
When delegating any portion of the anticoagulation monitoring process to a staff member, ensure competencies are up to date and documented in employment files.
Develop and implement evidence-based clinical protocols that address the frequency of monitoring labs, dose adjustments, patient education, compliance or non-compliance, identification of critical values and when physician notification is required.
There are also a few key components that should be included in patient discussions and written information shared with patients.
- Why is the medication being prescribed?
- What are the benefits and risks of the medication? Providing these details about the risks isn’t meant to scare patients. It’s just important for patients to be fully informed so they can partner with their physician or health care provider and be an active participant in their medical care.
- Teach about dosing and the need for compliance. Does the patient know what to do if they miss a dose?
- Counsel the patient on possible drug interactions (including prescription drugs and over the counter meds or supplements). Instruct patients to notify you before starting or stopping medications.
- Explain that dietary factors can interfere with warfarin. Provide handouts or links to credible resources.
- Inform the patient about warning signs that require contacting you and when to go to the emergency room. What should they do if they cut themselves? If they develop a bloody nose? These are things that they would want and need to know about.
- Provide written instructions when prescribing anticoagulation and along the continuum of care. It’s a lot of information to absorb and most patients can’t retain everything during a verbal discussion.
- Even when all of these things are in place and well-documented, patients may still experience adverse events. Creating, implementing, and following safe practice protocols is helpful in increasing the defensibility of claims involving this high-risk class of medication.
Tony Passalacqua: We still often hear from attorneys about difficult issues involved with defending a claim involving electronic health care records. As most physicians and health care providers are now using electronic health records, should users be aware of any features that may appear to be helpful, when in fact, they could be problematic?
Robin Desrocher: Absolutely. When EHRs were initialing hitting the market many years ago, these systems were developed and designed to assist with billing and coding. As these platforms evolve, and feedback from clinicians using them is considered, there have been some process improvements seen. There is, however, still room for improvement.
When we meet with physicians and discuss EHR documentation features, we address things like cloning, or cutting and pasting data from one visit to another. There are also features where the system prepopulates data with a click of a button. While prepopulating non-biographical data like names and birth dates is okay, prepopulating patient care information comes with some risks. If systems and practices allow physicians and staff to prepopulate patient care and treatment information, that data must be reviewed and verified by the user for accuracy before signing off on it. There are patient safety concerns that could trickle down through the continuum of care if the data is inaccurate. And there would be billing concerns if actions not actually performed are documented as being performed to inflate payments.
Tony Passalacqua: We see failure to follow up on test results as an allegation listed in many of our cased closed articles published by TMLT. Can you share observations the risk management team is seeing when they visit or hear from physicians about tracking processes? And also, what are some tips and tricks that physicians should use for tracking processes?
Robin Desrocher: Unfortunately, a delay in following up on test results and referrals or failure to follow up can result in devastating patient outcomes. We also know tracking processes can be challenging for a number of reasons. Patient non-compliance, heavy workloads, multiple physicians and health care professionals managing patients’ care, and lack of systems or tools to facilitate timely follow up are things we see and hear about during conversations with our policyholders. We often find that tracking processes are absent, inconsistently utilized, or incomplete.
When a physician or other health care professional orders a test, refers a patient to a specialist or another health care professional for treatment, it is the ordering physician or health care professional’s responsibility to follow-up.
For practices that are still utilizing paper medical records (and some are), the tracking system may be on paper or in the form of an electronic spreadsheet. We recommend that the tracking document include areas for capturing the order date, patient’s name, date of birth, the name of the test, the date results are received, the date of physician review, and the date and method that results are communicated to the patient. On a regular schedule, this list should be reviewed and completed, paying close attention to test results that are still outstanding. This process provides an opportunity for follow up. If a patient is contacted and it is determined that they will not be following through on the recommended testing or treatment plan, the ordering physician should be notified. They can then decide if additional follow up is needed or not.
Now that many practices are utilizing EHRs, built in tracking systems are helping to manage this process. One of the problems we’re seeing or hearing about is that practices are not fully aware of how the EHR tracking feature works and all of the functions available to the user. Features like: Does the system allow the result to get filed into the patient’s record without physician review? If so, we suggest that a process be in place to avoid this step from occurring. Another issue is that abnormal results or results requiring additional testing or follow up with the physician are shared on patient portals. Is there a way of knowing whether the patient received and reviewed the result posted in the portal? This is especially important when the result is abnormal and requires further action.
When it comes to EHR tracking systems, they are not all created equal. Therefore, we encourage physicians and practices to reach out to their EHR vendor to gather more information to fully understand the functionality of the tracking system that is available to them, if they haven’t already done so.
Tony Passalacqua: Tanya, what questions does the Risk Management team get from doctors that remain on your radar from year to year?
Tanya Babitch: Tony, what we hear over and over are issues with difficult patients that physicians find tough to navigate. These issues really don’t have easy answers — every patient is different — but we are able to offer some references to laws, resources, and general guidelines to assist physicians.
Tony Passalacqua: Do any issues stand out?
Tanya Babitch: How to manage ending the patient-physician relationship. It’s always within the top two most frequent topics we are consulted about, because it is difficult and uncomfortable for physicians to deal with. No one really likes having to take this kind of step, but it may sometimes be necessary. This has been the case since I started at TMLT over 20 years ago. The critical information generally stays the same and hasn’t changed much over time. We do have a few basic tenets for ending a patient-physician relationship which I’ll quickly outline for the listeners.
- First, you may terminate a relationship with a patient with appropriate notice — “notice” really being the key word. You should generally avoid terminating without notice, as that could get you into trouble with your medical board for patient abandonment.
- Second, in Texas, you are not legally required to give a reason for ending the relationship. Now, you may choose to do so; if so, keep it very fact-based, keep it reasonable, and use appropriate language. Definitely avoid accusations if possible or an accusatory tone. Keep it professional — bottom line.
- Third, it is really up to you how you decide to end the relationship, but we generally recommend doing so in writing if you are absolutely certain that you don’t want to see the patient again. Now that doesn’t mean you shouldn’t or can’t also tell the patient that the relationship is ending, in person even, and document that you did so in the record no matter what the method is.
- Fourth, if you’ve got a patient who is in a critical state, in the post-op period, or late in pregnancy, we generally recommend holding off on ending the relationship. Patient safety is really of the utmost importance. But, if you can get these patients safely transferred to another physician, that’s ideal.
Tony Passalacqua: Are there any other tips to help practices navigate patient termination?
Tanya Babitch: There are. A few other things that sometimes get lost during this process — number one, check your payor contracts to make sure that you are allowed to end relationships, that you don’t have any contractual obligations to keep patients in the practice or to notify payors prior to termination.
And another thing is make sure that once a termination is done, that it stays done! You really should be able to add an alert or some kind of status change to a patient’s record — if it’s an electronic record you certainly should be able to — so that office staff can easily see that a patient should no longer be scheduled. This is something we hear a lot — that the patient got back into the practice “accidentally” because the scheduling staff didn’t see that they had already been terminated from the practice. Tony, we have a ton of resources for our policyholders and groups on the topic of patient termination, including sample letter templates, articles, and more. So, policyholders can reach out to us to get additional help.
Tony Passalacqua: What are some ways that our TMLT policyholders can gain access to that information?
Tanya Babitch: Well, we do have a ton of stuff available on the TMLT Resource Hub which is great, and that is actually accessible to everyone, and then if you would like some more detailed resources, access to some updated articles, our policyholders can reach out to the Risk Management Department. Probably the best way is to just call the TMLT main number.
Tony Passalacqua: What other questions do you receive from physicians that seem to remain a challenge year after year?
Tanya Babitch: Many practices, well, this is kind of really those difficult patients, again, or just difficult issues that patients have. Many practices really struggle dealing with consent issues for kids with divorced parents. That can get really sticky and challenging for the practice — especially if practices are hearing completely different stories from the two parents. Now, we’re not attorneys in Risk Management, so we can’t give legal advice to our policyholders, but we can offer a little bit of guidance at least to head them in the right direction to look at the pertinent laws.
Many physicians and administrators assume that only the parent who has primary custody of the child can consent to their treatment — which is often not actually the case. Most commonly, if parents are named as “joint conservators” who share custody, both parents will have full rights to consent to the treatment of their child. And even if one parent is named the “sole managing conservator” – or the parent with custody — often, the other parent can still consent to most medical or dental treatment of the child. The other parent may be named as the “possessory conservator.” If the child is with them, you know, when they are staying with them or living with them, they then have the rights to consent to most medical treatment with exceptions for invasive treatments such as surgery and I believe even psychiatric treatment. The sole managing conservator has the right to consent to these treatments, but the possessory conservator may not. However, in emergency situations involving immediate danger to the child, both managing and possessory conservators (in other words, custodial and non-custodial parents) may consent to invasive treatment. Again, in emergency situations. All of this said, there could be individual limitations on either parents that could have been put into place by the courts.
Tony Passalacqua: Parental consent seems like a sensitive and complex topic. What’s the easiest way for a practice to figure out their way throughout that entire process?
Tanya Babitch: The bottom line is that there really should be court documents that outline who may consent to what treatments — or not — for their child. And practices should really get comfortable with asking for this paperwork if one parent is telling them that the other parent has no rights to consent to the treatment of their kid. So, I think, if in doubt, ask for the documents basically. And then once those rights of the parents have been determined, the practice should definitely retain a copy of any pertinent court documents in the child’s records.
Tony Passalacqua: Can a parents’ right to access the child’s medical records become limited or restricted?
Tanya Babitch: Again, in most cases, both parents have the right to access their child’s records. But, again, there could be limitations put in place by the court, so it’s never wrong to ask about court documents if an argument arises. What we hear most often is that one parent just states that the other one shouldn’t have rights but there’s actually nothing put into place by the court that says that’s so. Again, ask…uh…ask questions. Texas laws that address both consent for treatment and access to records for minors with divorced parents are in the Family Code, chapter 153.073, in case anyone wants to look that up.
Tony Passalacqua: Awesome. Well, thank you guys both for your time. I really appreciate it.
Robin Desrocher: Thank you, Tony.
Tanya Babitch: Thanks, Tony.
Tony Passalacqua: And thank you for listening to this podcast. If you are a policyholder, please feel free to contact us with any questions by calling 1-800-580-8658, or check out our resources at tmlt.org, and clicking on our Resource Hub.
