Providing Care When Disaster Strikes
By Kimberly Wynkoop
OMIC Legal Counsel
Digest, Winter 2010
When disaster strikes, many physicians want to offer their skill to aid the victims in their recovery. The last thing a physician pursuing such an altruistic mission may consider is claims arising from this care. Nevertheless, prudent physicians will want assurance that what they are undertaking will not expose them to uninsured losses. OMIC would like to explain how its policy covers its insureds for claims that might result from such volunteer services.
Practicing Outside Coverage Area
When insureds look to provide health care outside of the united States, they should be aware of the Coverage Territory provision in their policy (Section VIII.22). It states that, in order for coverage to apply, the insured’s principal place of practice must be the same as that specified in his or her application for insurance. This does not prevent insureds from occasionally practicing outside of this area, it just ensures that they are underwritten and rated appropriately for the majority of their practice. As long as this is the case, coverage will apply to professional services incidents that take place anywhere in the world. However, in order for OMIC to cover the claim,it must be brought within the 50 United States or Washington DC.
Most, if not all, medical professional liability policies contain this language limiting where claims may be brought. This is because insurers are generally unfamiliar with the laws and court systems outside of the U.S. This, coupled with the distance and language barriers posed, makes it extremely difficult to controland manage claims and to find appropriate personnel to oversee and adequately defend them. In addition, the insurer may not legally be permitted to operate in these foreign countries.1 (Note that OMIC’s policy does not cover claims brought in any U.S. territories or possessions. Although the law is not settled on the issue, it appears that risk retention groups are not permitted to operate outside of the 50 states and DC. Additionally, most of the other concerns noted above also apply to these territories and possessions.)
Good Samaritan and Bona Fide Emergency Treatment
In order for coverage to apply, the rest of the policy provisions must also be adhered to. This includes practicing within the scope of one’s licensure and within the ordinary and customary scope of practice of ophthalmologists. OMIC considers ophthalmic or non- ophthalmic treatment provided as a Good Samaritan or in a bona fide emergency to be within the ordinary and customary scope of practice of ophthalmologists. This means providing emergency medical services to an injured person at the scene of an accident without expecting to receive compensation from the injured person for the service. Regarding licensure, insureds will want to check the licensure provisions and requirements in both their state of practice and the location where they will be providing volunteer services.
Responding to emergency medical needs in a disaster zone immediately after the disaster has struck would be considered a bona fide emergency or “Good Samaritan” situation. This could occur, for example, in treating victims and evacuees for non-ophthalmic injuries in the direct aftermath of an earthquake, hurricane, or terrorist incident. Attending to victims’ and evacuees’ non-immediate medical needs after the disaster would not be considered occurring during a bona fide emergency. Therefore, OMIC would cover an ophthalmologist for ophthalmology-related treatment only in this scenario.
If an insured plans to assist in a disaster-stricken or underserved area on a volunteer basis through an organization, the insured should check with that organization, as it might also provide or give access to professional liability coverage for these services. Since the aim of these organizations may be to provide medical care in non-u.S. territories, and they may anticipate that specialists could provide care outside of their specialty, they might offer or provide access to coverage for claims beyond the scope of your OMIC policy.
Documentation of Care
From a risk management perspective, OMIC advises that insureds maintain, to the degree possible, at least basic documentation of any treatments performed, including identifying information of the patient and a short narrative summary of the diagnosed injury/condition and specific medical care delivered by the insured. For easy retrieval, such notes should be arranged alphabetically in a file labeled “Care Provided to [Incident] Disaster Victims.” If resources are available, since it is likely that patients will not be seen again by the insured, the insured should give patients a copy of the visit note, with treatment and follow-up recommendations. For more risk management advice, call (800) 562-6642, ext. 641.
If you plan on spending any significant amount of time providing services outside of your typical practice territory, please inform your OMIC underwriter before doing so.
1. Bregman RA and Gibson JP. “Professional Liability Insurance.” International Risk Management Institute, INc. (Dallas). 2009; Sections VII.B.14 and XXII.E.11.
Practical Application of HIPAA Privacy Rules (Part 2)
Kimberly Wittchow, JD, OMIC Staff Attorney
Digest, Spring 2003
The compliance deadline of April 14, 2003 is behind us, yet many OMIC insureds continue to grapple with certain provisions of the HIPAA Privacy Rules. For this reason, the Risk Management Hotline will again tackle a sampling of the latest HIPAA queries. Remember that if you are not a Covered Entity as defined under HIPAA, these federal mandates do not directly apply to you.
Q Can I release information to persons within a patient’s circle of care without a written authorization?
A Yes. You must, however, provide the patient with an opportunity to agree or object to this disclosure. If the patient is present, the easiest way to do this is to get the patient’s oral permission before sharing protected health information (PHI). If the patient is not present or communication with the patient is impossible, you may in the exercise of professional judgment determine whether the disclosure is in the best interest of the individual and if so, disclose only the information directly relevant to the person’s involvement with the patient’s care. It is advisable to document these oral agreements or professional judgments to disclose.
Q Can patients request restrictions on the use or disclosure of their protected health information?
A Yes. Patients have the right to ask for restrictions in the use or disclosure of their PHI, but you are under no obligation to agree. However, if you do agree with the restrictions, you must comply with them. You also must accommodate patients’ reasonable requests to receive communications of PHI by alternative means, such as sending all communications in a closed envelope rather than on a post card.
Q Is the Notice of Privacy Practices the only policy document my practice needs?
A No. The Rules additionally require that you have written privacy procedures addressing which staff has access to PHI, how PHI will be used, and when PHI may be disclosed. OMIC’s Sample Compliance Plan* is both a template and a guide for creating your own privacy plan. In addition, you must designate a Privacy Officer, train your employees, and take appropriate disciplinary action if you learn of a breach.
Q Are fellow health care providers my Business Associates?
A A Business Associate Agreement is not required when you disclose PHI to another health care provider for treatment of a patient. However, you and another health care provider may be business associates for some other purpose. For example, a hospital might hire you to help train medical students, in which case the hospital would have to obtain an Agreement from you before allowing you access to patient information.
Q Will the government actually enforce the HIPAA Privacy Rules?
A In an April 14, 2003 press release, HHS stated that enforcement will be primarily complaint driven. The Office of Civil Rights (OCR) intends to investigate complaints and ensure that the privacy rights of consumers are protected. OCR may impose civil monetary penalties of $100 per failure to comply. The Department of Justice may prosecute criminal violations with fines ranging from $50,000 to $250,000 and prison terms ranging from one to ten years.
Q Does HIPAA address eye banks?
A Yes. The Privacy Rules permit you to disclose PHI without authorization to eye banks for the purpose of facilitating cadaveric eye donation and transplantation. Furthermore, the procurement or banking of eyes is not considered health care under the Rules and the organizations that perform such activities are not considered health care providers or Covered Entities when conducting these functions.
Q Who are patients’ personal representatives and what information can I share with them?
A HIPAA requires that you treat an individual’s personal representative as the individual with respect to privacy rights. The scope of the personal representative’s authority to act for the individual derives from applicable (generally state) law. Parents have broad authority to act on behalf of their children and legal guardians generally have broad authority to act on behalf of mentally incompetent adults. Conversely, someone with a limited health care power of attorney is that individual’s personal representative only with respect to certain health care decisions.
Informing Patients About Your Surgical Experience
By Anne M. Menke, RN, PhD OMIC Risk Manager
Digest, Spring 2004
More than many specialties, ophthalmology evolves rapidly through the development of new procedures, techniques, and devices. While each innovation holds the promise of improved outcomes for the patient, it also introduces new areas of risk as ophthalmologists and their staff learn to incorporate the changes into their practice. OMIC policyholders often call the Risk Management Department to ask if and how they should talk to their patients about their training and experience.
Q The ambulatory surgery center (ASC) where I perform cataract surgery switched phacoemulsification machines over the objections of many ophthalmologists. While I have completed the training course offered by the manufacturer, I have not yet used the new machine on my own patients. Do I have a legal duty to tell my patients?
A Ophthalmologists are aware of their legal and ethical duty to obtain the patient’s informed consent for surgery. The surgeon discharges this duty by personally discussing the indications, risks, benefits, alternatives, and known complications with the patient, who orally agrees to proceed with the planned procedure. The discussion and agreement are then documented by noting the discussion in the medical record and by asking the patient to sign a consent form.
As we state in OMIC’s new online course, Informed Consent for Ophthal- mologists, there is a small body of emerging case law governing situations where a surgeon isn’t truthful about his or her training and experience, particularly as it relates to board certification and/or experience per- forming a particular procedure. If a patient is injured as a result of a surgical procedure, some courts have effectively “thrown out” the consent form if it is later proved that the surgeon, when asked, knowingly misstated his or her skill, training, certification, and/or experience. Thus, the ethical considerations of lying to the patient during the consent process could conceivably pose serious legal consequences. There is no clear consensus, from a legal standpoint, about whether or not the physician has a duty to offer this information.
Q What are the consequences of not telling the patient about my experience?
A Learning about a surgeon’s lim- ited experience after a poor outcome or complication could seriously compromise the physician-patient relationship. The ensuing lack of trust in the physician could also hinder the provision of care needed to treat the complication. Patients may feel betrayed or worry that the physi-cian was experimenting on them. The resultant anger could well prompt a lawsuit for malpractice and lack of informed consent. The patient would likely allege that the surgeon’s level of expertise would have made a difference in the decision to undergo surgery, and his or her attorney would argue that a “reasonable person” would have considered this information “a material fact” that should have been disclosed.
Q I believe I have an ethical duty to disclose my training and experience, but I am not sure how to proceed. What do you recommend?
A Simply provide the facts about your training and experience as they relate to the particular procedure. In the example given here, while explaining the role of the phacoemulsification machine in the lens extraction, inform the patient that the ASC has recently changed machines. Disclose your overall experience with cataract surgery as well as your recent training on this machine. If certain complications are more likely to occur with the new machine or during your learning curve, tell the patient what they are and how you will manage them if they do. If the patient is not comfortable proceeding, help him or her find alternative sources of care. Regardless of how you feel about the ASC’s decision, do not share your criticisms with the patient. Instead, address your concerns to the appropriate leader on the medical staff.
Q Should I tell a patient that I am using a newly approved IOL such as the Crystalens?
A It would be prudent to do so. As part of your discussion of the risks, benefits, and alternatives to this IOL, explain why in your professional judgment it is the best one for this particular patient. If you are relatively inexperienced in inserting it, consider explaining that as described above. Patients appreciate knowing the financial implications of your choices, so inform them of any known health insurance or payment issues. As with any new device or procedure, be sure to inform the patient if long-term outcomes are not yet known and explain that there may be unforeseen complications. If you are using the device in an off-label manner, the patient should be so informed.
For more information about informed consent, see OMIC’s online course or the following online articles, “Practicing Beyond One’s Expertise: The Road to a Lawsuit” and “New Surgical Advances Come with Liability Risks.”
Refunds, Fee Waivers and Payments
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2007
Patients who are not satisfied with their care outcome may refuse to pay their bill, request a refund, or ask for money for subsequent care. OMIC policyholders have many questions about the consequences of saying yes to these requests. Similarly, there are times when a physician would like to offer monetary support. This column gives a general overview of providing financial support to patients out of a physician’s corporate or personal funds. Prior to taking any action in this regard, please call OMIC’s Risk Management Hotline at (800) 562-6642, option 4, for individual assistance. Physicians who have received a written request for money or are notified of a lawsuit should call the Claims Department at ext. 629.
Q When I’m not able to help my patient understand and accept an outcome, I would like to have the option of refunding or waiving my own fees, or paying for a second opinion or care from another ophthalmologist. If I do any of these, am I admitting liability?
A Merely refunding or waiving fees or offering to pay for subsequent care is not an admission of liability unless you tell the patient that your care caused the outcome. If you feel you are responsible and would like to discuss this with the patient, please consult with OMIC first, both to comply with the cooperation clause of your policy and so that we can assist you in preparing for the discussion. Those providing support for other reasons are also encouraged to call us. After a thorough discussion of surrounding facts and circumstances, we may suggest using neutral language to explain the offer; for example, “I want all of my patients to be happy with their experience here. Since I haven’t met your expectations, I would like to offer to waive/reduce/refund fees, pay for a second opinion, etc.”
Q Will offering monetary support dissuade my patient from suing me?
A Not necessarily. Some patients accept such offers with gratitude, and continue to seek care from you. Others may conclude—regardless of what you say or do—that your generosity is “proof” that you did something wrong and proceed to consult with a medical malpractice attorney. You know your patients and are in the best position to decide how they might respond, and whether you would like to make such an offer.
Q Can I waive the patient’s co-payment or deductible?
A Contracts with third-party payers (including Medicare) usually require that you collect co-pays and deductibles at the time of service, and they may limit your ability to waive or refund fees. Some plans allow a physician to waive a co-pay or deductible only after a patient has demonstrated financial need and to refund such payments only if the physician also refunds any fees paid by the third-party payer. It is important to review contracts and follow their provisions since you may be subject to allegations of insurance fraud or abuse if you violate them.
Q What types of monetary support do I have to report?
A Some reporting requirements differentiate monetary support given on the physician’s own initiative or in response to an oral demand from money paid in response to a written request, claim, or lawsuit. Reporting to the National Practitioner Data Bank, for example, is only required if (1) there is “a written complaint or claim based on a physician’s … provision of or failure to provide health care services” and (2) the payment is made by a business or corporate entity, including a business entity comprised of a solo practitioner (45 C.F.R. § 60.3). Payments in response to oral requests, fee waivers (when no money has changed hands), or those paid for out of personal funds are not reportable. State laws vary, so it is important to check what is required by speaking with OMIC and contacting your state medical board.
Q Should I ask the patient to sign an indemnity release in exchange for a fee waiver, refund, or payment?
A The answer will depend upon the particular patient and situation. Some patients readily agree, while others may become angry or feel you wouldn’t ask if you hadn’t been negligent. You should contact OMIC’s Claims Department if you want the patient to sign a release, as these must comply with state law and require the assistance of an attorney. For additional information, please download the document “Responding to unanticipated Outcomes” from the Risk Management Recommendations section of our web site, order the CD of the same name, or take this course online.
Medical Record Requests
Hans Bruhn, MHS, OMIC Senior Risk Management Specialist
Digest, Fall 2007
Medical record requests (MRR) are made for various business reasons (e.g., billing matters) as well as for ongoing patient care (e.g., referral to another physician or specialist). These requests require written authorization from the patient. The only exceptions to this rule involve requests pursuant to subpoenas, search warrants, or court orders, and certain mandatory reporting obligations where the law expressly allows for disclosure within the physician’s discretion.
Sometimes, an MRR is the first indication that a patient is dissatisfied with the treatment rendered and intends to file a lawsuit. This issue’s Closed Claim Study demonstrates that the medical record is an important defense against allegations of improper consent or poor overall management of care and underscores the need to respond carefully to an MRR.
Q My practice regularly receives requests for medical records from various parties (patients, attorneys, etc.). Do I have to release the patient’s records to anyone he or she designates?
A Yes, but each request for medical information should be evaluated carefully. Federal and state laws and regulations clearly specify that patients have the right to decide who has access to their medical information. HIPAA is the primary source for federal regulations on access to medical information and your state medical society can provide you with state requirements. Physicians should only release a patient’s medical information upon receipt of written authorization from the patient or the patient’s legal representative. The written request should meet HIPAA standards. (see www.omic.com for a sample medical record authorization.)
Q Should I designate a specific person in my practice to respond to these requests?
A Yes, in order to ensure that an MRR is handled properly, only authorized staff members in a physician’s practice should handle these requests. A written procedure should be developed for the practice and reviewed regularly with staff so it is clear who is authorized to handle these information requests. Be sure that these designated staff members are familiar with access laws and regulations as well as what can or cannot be done in the process of preparing a file for release to another party. For example, no “clarifying” remarks or statements should be added to the records prior to release. While these comments may be well intentioned, they will invariably furnish plaintiff attorneys with an opportunity to question the motive, and potentially damage the defensibility of your care. Of course, alteration of records is illegal and should never be done. If you feel that clarifying statements are needed, a separate file should be created. This is the appropriate place for statements clarifying chart entries, elaborations on your customs and practices for treatment, and recollections of your decision-making process. If a formal claim is made, your defense attorney may find this information helpful.
Q Can I release the “original” medical record?
A While a patient is given authority to control access to his or her medical information, the physician or surgical facility retains ownership of the record. Therefore, a physician should never release original records to a patient, a patient’s representative, or any other third party. Copies or a summary of treatment should be provided instead. Original medical records should only be released in appropriate instances (e.g., valid search warrant, court order, or subpoena). Contact OMIC’s Risk Management Hotline at (800) 562-6642, ext. 651 or 662, if you are unsure whether original documents or copies should be released, or if you have other questions related to record releases.
Q Do I need to release records we have received from other physicians? How about letters from the patient and billing records?
A Yes, anything related to patient care and treatment is considered part of the medical record, and should be released unless the authorization specifies more limited information. For additional information on confidentiality, see “Confidentiality/Privacy issues and Malpractice Claims” in the Risk Management Recommendations section of www.omic.com.
