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consultants are recognized leaders in the healthcare risk control field, frequently speak at industry conferences and publish articles in professional journals.
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Find additional information on Risk Control Services
Risk Control Brochure PDF (160kb) provides additional information on risk control services.
RISK MANAGEMENT TOOLS AND RESOURCES
CNA HealthPro is dedicated to meeting the risk consulting needs of our clients and colleagues in the healthcare industry. Our philosophy is to provide practical ideas that you can use. The items below provide you with some basic tools for proactive risk management:
Sample Risk Management Plan: This includes fundamental aspects of a sound risk management program. It states the purpose, objective and functions of a risk management program and designates a responsible party to implement each element. At the end, there are spaces for the signatures of administrators who have ultimate responsibility for risk management activities. This sample can be modified to conform to your organization’s mission, strategic plans and needs.
Sample Long-Term Care Corporate Risk Management Program Plan PDF (34KB)
Sample Incident Report Forms: Below are sample forms for acute care and long-term care. Open to read and download.
Sample Long-Term Care Incident Report PDF (27KB)
Sample Acute Care Incident Report PDF (38KB)
CNA HEALTHPRO RISK CONTROL: FREQUENTLY ASKED QUESTIONS (FAQS)
These concise discussions on key risk management issues are intended to assist individuals new to risk management and to reaffirm what experienced risk managers already know. The FAQs include:
Download a printable version of all FAQs.
The information provided is not legal advice nor is it intended to be a thorough discussion of the topic. Look for additional topics under Risk Management Tools and Resources or use the Web site index to find a specific topic. Please contact us if you wish to discuss any of these important issues or if you have an issue you would like us to address here.
Advance Directives
Can advance directives be recognized from one state to another?
A healthcare advance directive is a formal document that conveys an individual’s healthcare treatment decisions should they become unable to communicate his/her wishes. Every state and the District of Columbia have laws that recognize and define the requirements for executing a healthcare advance directive. Although specific state laws vary, the basic principle of listening to a patient’s healthcare treatment decision is universal. The law accords significant weight to various forms of written directives.
In the event a patient presents a formally written advance directive, it is advisable to ensure that the document was executed according to the requirements of the patient’s state of residency. You may contact national clearinghouses on healthcare advance directives, such as the American Association of Retired Persons, which will be able to provide state-specific advance directive requirements.
Cancelled Appointments and No-shows
What are the physician’s responsibilities when a patient doesn’t return for a follow-up visit or recommended test?
The patient’s failure to keep an appointment does not relieve the physician of his/her obligation to notify the patient of the need for follow-up care, abnormal findings or the consequences of failing to obtain care. Physicians should make a reasonable effort to contact the patient who missed a scheduled appointment or test.
All follow-up attempts to contact the patient and the patient’s stated reasons for missing appointments should be carefully documented in the medical record.
Informed Consent
What should be done if a patient refuses to sign an informed consent form?
Execution by the patient of a signed informed consent form is not a substitute for the informed consent process. The informed consent process must be an interactive exchange between the healthcare practitioner and patient whereby the benefits, risks, alternatives and the risk of treatment refusal are fully explained to and understood by the patient. A well-documented medical record should delineate the specifics of the physician-patient informed consent discussion. This would serve as evidence of the informed consent process should a lack of informed consent allegation arise in the context of professional liability litigation.
However, the refusal of a patient to sign an informed consent form poses risk management concerns. Investigation into the reasons for the refusal should be fully explored with the patient and documented in the medical record. It is advisable to have a third party, such as the office nurse or other office professional, witness this discussion. The name of the witness and/or signature should be included in the medical record notation.
If the rationale for the refusal is due to an unwillingness to undergo the procedure or treatment plan, then the procedure or treatment should not proceed and attempts at obtaining a refusal of treatment form should be pursued with the patient. In this instance, it is imperative that a specific notation of the discussion and understanding by the patient be expressly documented in the medical record. If the reason not to sign the informed consent form is for other reasons, again a notation indicating the reasoning should be made in the medical record.
Reasonable doubt regarding the patient’s intent for refusing to sign an informed consent form may be grounds to temporarily suspend the procedure or treatment protocol.
Malpractice Claims
What are the signs and symptoms of a malpractice claim? |
- The first indication that a claim is being made against a physician or other healthcare provider for medical malpractice may be when a Summons and Complaint is served upon that individual. However, there are usually signs and symptoms that can be recognized that will warn a physician that a lawsuit may be filed against him/her. Some of these signs and symptoms include:
- Unusual and persistent inquiries by the patient, family members or friends concerning the procedure, the results and the "whys" and "wherefores" of both
- A telephone call or letter from an attorney who is "just looking for information." It may be true that information is all the attorney is looking for, and no malpractice claim will ensue. On the other hand, it is quite possible that this is the first step to a malpractice lawsuit. TREAT ANY COMMUNICATION OF ANY KIND FROM AN ATTORNEY WITH CARE.
- Any request for opinions or records by either the patient, the patient’s family or an attorney should indicate the likelihood the healthcare facility or the specific physician may be included in the claim.
- If the patient does not pay the bill
- If a patient discloses that a lawsuit is forthcoming
- Any sentinel event as defined by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)
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How should a complaint from a patient or family member be addressed?
All complaints, whether written or verbal, require a response from the healthcare practitioner. The involved practitioner should respond to a complaint in written form, acknowledging the expressed concern. The tone or content of the letter should not negate or minimize the patient’s and/or family member’s concerns. Rather, the letter should objectively present your investigative findings.
In the event a written or verbal complaint about a potential liability situation is received or the threat of litigation arises, it is advisable to contact the professional liability claims or risk management representative to assist with the drafting of the response. If the complaint also involves another practitioner or healthcare entity, it is recommended that individual or the healthcare entity’s risk manager be notified.
How should a physician respond to a letter from a patient’s attorney requesting medical information?
All requests from attorneys for information from patients´ medical records must be accompanied by a valid and notarized patient original authorization. Upon receipt of proper patient authorization, a complete copy of the patient’s medical record (not a summary or letter) may be forwarded to the requesting attorney. If it is suspected that the request may be the beginning of a malpractice lawsuit, the broker and the CNA HealthPro claim department should be notified.
What is the difference between a malpractice claim and a malpractice suit?
A malpractice claim is any demand for payment or reimbursement for negligent actions made against an individual or organization. A malpractice suit arises when legal action is taken on a claim, typically though an attorney’s notice of intent to sue, or a Summons and Complaint is served.
What should be done if a Summons and Complaint is received?
Upon receipt of a Summons and Complaint, a timely response to the attorney is required by law (30 days for federal court and 20 days for state court). Failure to respond within the required timeframe may result in default of judgment against you or admission of fault. The following steps should be taken when a Summons and Complaint is received:
- Immediately notify the CNA HealthPro Claim Department and document under what circumstances the Summons and Complaint was received.
- Sign the "Acknowledgement of Receipt" form but do not date it.
- Do not discuss the case with anyone, including the patient or patient’s attorney without checking with risk management first.
- Do not alter the patient’s medical record in any way.
What are the state-specific statutews of limitation laws for medical malpractice suits?
Each state limits the amount of time in which the plaintiff may institute a claim. In most cases, claims must be filed within a specific time from the date that the patient discovers the injury due to negligence. To review the statute of limitations in each state, please contact the professional liability claim or risk management representative.
How much time is the legal process expected to take?
That depends, of course, on how far the case goes. Depositions can take a very long time. The attorney will likely expect the healthcare practitioner to attend at least some of the witness depositions other than his/her own. Expect to miss some practice time during this period.
If the case goes to trial (and very few get that far), expect to miss from a few days to a couple of weeks of practice time. Malpractice cases can take years from incident to resolution, during which time there will be continuous contact with the lawyer. However, time commitment to the case will vary over the course of the legal process.
What should practitioners not do upon receiving notification of a claim?
Notification of a complaint often comes as a total shock. Many practitioners respond with a great deal of emotion. The challenge is to channel that emotion productively. Call the insurer. A representative will direct you to an experienced claim specialist who can advise you on your situation and start the legal defense process rolling.
It’s a mistake to call the patient or the patient’s lawyer. Something may be said that will be regretted later. Remember that just about anything confided now to friends, peers, or almost anyone other than your lawyer is ill-advised. Although certain feelings may wish to be expressed, it is best to say as little as possible about the suit to those outside the situation.
What is the most serious mistake made by physicians in this situation?
Altering the patient records. Tampering is not hard to detect. Modern ink and handwriting analysis techniques can reveal with a high degree of precision when a chart entry was made. Tampering is seen as an admission of guilt, rendering the medical conduct all but indefensible.
Although it’s a bad idea to change records, can late entries be added?
Late entries are necessary in some clinical situations and are appropriate as long as caution is used when distinguishing between the original comments and new ones. Here’s how to do a late entry:
- Write revisions not in the margin of the old records but on a fresh page, as though it was documented as today’s appointment.
- Preface revisions with today’s date and the words "late entry"
- Mention the entry you wish to update, then write comments and sign the entry as usual.
What is meant by the phrase, "Rule of Nine"?
The "Rule of Nine" was coined to identify certain patient outcomes that may be linked to the malpractice claims. These are:
- Brain damage (neurologically impaired infants or adults, coma)
- Spinal cord injury
- Third degree burns resulting in extensive hospitalization and/or skin grafting, scarring
- Death (only if asserted by a third party or due to unusual circumstances or if unexpected)
- Sexual molestation or rape
- Blindness
- Loss of limb or reproductive organ
- Permanent nerve dysfunction requiring prosthetic support
- AIDS or HIV conversion as a result of treatment
If the signs or symptoms of a malpractice suit are detected, what should be done?
If any of the signs or symptoms of a malpractice lawsuit are detected, the insurance broker, agent or CNA claim consultant should be contacted. Early reporting and investigation are critically important aspects of risk management and may help promote a better defense against allegations of claims and lawsuits.
Medical Records
Are patients entitled to review their medical records?
Yes. Patients are entitled to review their records and may request a copy. Nevertheless, they should be closely supervised when reviewing records to make certain that no part of the record is altered or lost. Consult your legal counsel to obtain the medical record requirement in your state.
How long should medical records, x-rays, fetal monitoring stripes, EEG readings, etc., need to be retained?
Before a decision is made to destroy any records, x-rays, fetal monitoring strips, etc., be sure to consider the following:
- Review the legal requirements (i.e., the statute of limitations in your state and federal law addressing specific record retention periods) and the age of the patients in relation to the statute of limitations. Keep in mind that the statute of limitations is often suspended (or tolled) for medical malpractice suits.
- Be aware of possible future patient care, research and teaching needs and the possibility of archiving (especially off site) or microfilming the records.
Risk Management, Incidents and Occurrences
What steps should be taken after an adverse event has occurred?
Informing a patient and/or family of an adverse outcome is one of the more difficult tasks a medical professional faces. Dealing directly and tactfully with this unpleasant duty can reduce the risk of a malpractice lawsuit. Unexpected outcomes require the physician’s immediate attention. The occurrence should be discussed openly and honestly with the patient and/or family, and include the reasons for it and how it will be managed. This discussion must occur as soon as possible to reduce the patient’s suspicion and anxiety and may need to be repeated several times. The discussion should be held by the attending physician and not delegated to the intern or resident. Careful and objective documentation regarding the adverse event is critical to the defense of the case should a lawsuit be filed against the healthcare practitioner.
Need an example of an occurrence form? Check out the Sample LTC Occurrence Form or the Sample Acute Care Occurrence Form.
Is offering an apology after an untoward event an admission of negligence?
Providing the patient and/or family with the objective details surrounding an untoward event is a good risk management practice since it promotes honest and open communication between the healthcare provider and patient and/or family. A good practitioner-patient relationship is a strong deterrent to subsequent litigation. Acknowledging and empathizing with a patient’s and/or family’s concerns, fears or grief regarding the untoward event demonstrates compassion, not negligence.
When an untoward event occurs, the involved healthcare practitioner should meet with the patient and/or family as soon after the event as possible. A healthcare practitioner who refuses to meet with the patient and/or family after an untoward event will give the appearance of having something to hide, potentially increasing the patient and/or family’s suspicions that he/she may have acted negligently. Involved healthcare practitioners without finger pointing or laying blame to themselves or others should provide a factual account of the event. The patient and/or family should be given sufficient time to ask questions.
What are the risk management implications associated with external service contracts?
Contracts are legally binding obligations between contracting parties that provide a legal remedy if one party fails to perform according to the terms and conditions of the contract. As such, contracts must be reviewed to ensure protection of the organization’s assets, in the event an unexpected event, such as a breach of contract, lawsuit or contracting party insolvency, occurs. A risk management review of contracts should determine the reasonableness of the terms and conditions as well as whether or not there are appropriate insurance requirements, indemnification and hold harmless clauses to adequately protect the interest of the organization. Legal counsel review may be needed when contracts present a range of exposures to the organization or involve areas that require specific knowledge, such as tax law, anti-trust law or Medicare and Medicaid reimbursement practices.
Telemedicine
What are the risk management issues surrounding telemedicine?
Risk management issues that are involved with telemedicine include licensure, credentialing/privileging, informed consent, confidentiality, security, standard of care, the doctor-patient relationship and professional liability insurance.
Terminating a Relationship with a Difficult or Non-Compliant Patient
What are the steps involved in safely terminating a relationship with a difficult or non-complaint patient?
The rationale for the termination of the patient-physician relationship should be carefully documented in the medical record, including all discussions with the patient leading to termination.
If the patient is a member of a managed care organization:
- Review the specific managed care contract guidelines regarding termination policies
- Advise the patient to contact the HMO/MCO to select a new provider.
The termination process should be done via a certified, receipt-requested letter. The termination letter should:
- Clearly state that the relationship is being terminated
- Document the date the relationship will end and give at least 30 days notice
- Suggest that the patient find another physician
- Offer to refer the patient to a subsequent physician
- Provide resources to help the patient locate another physician of like specialty, including the state/county medical society or hospital physician referral service
- Agree to provide the patient with emergency care until the stated date of termination
- Include the current status of the patient’s health and any other required care
- Offer to forward a copy of the patient’s medical records to the subsequent physician and include an authorization for release of medical information form.
The certified mail receipt should be kept in the patient’s medical record. A copy of the letter should also be sent via regular mail.
What are the responsibilities when the patient terminates the relationship?
When the patient terminates the relationship the physician should:
- Document the patient’s decision in the medical record
- Advise the patient in writing of any unfinished treatment plans
- Recommend continuation of any unfinished treatment
Offer to forward a copy of the patient’s records to the subsequent physician
Need a sample termination letter? Call your CNA HealthPro Consultant or (888) 600-HPRO (600-4776).
Find additional information on Risk Control Services at www.cna.com/risk.
If you have questions regarding these materials, if you have suggestions for additional materials, or if we can help you with a project, please call us at 888-600-4776.
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