Keep Track of Those After-Hours Phone Calls
By Paul Weber, JD
OMIC vice-president of risk management
Argus, April, 1995
According to a recent survey of OMIC insureds, almost half of all after-hours telephone conversations between physicians and their patients are never documented in the patient record, thereby exposing the ophthalmologist to significant liability if a complication arises and impeding defense efforts if a claim is filed. This is cause for concern, given the significant number of OMIC claims that have been adversely impacted by lack of documentation of after-hours telephone conversations with patients.
Undocumented After-Hours Calls Expose Ophthalmologists to Potential Liability
In one case, a patient had retinal surgery on Thursday, including a fluid gas exchange (FGE), for repair of a giant retinal tear. On Friday, the ophthalmologist (an OMIC insured) released the patient from the hospital with the retina totally reattached and the intraocular pressure (IOP) within normal limits. On Saturday, the patient called the physician, who received the call on his car phone, and said her eye felt “different.” When asked if she was experiencing stomach upset, nausea, vomiting or eye pain, the patient said no. The insured reminded her he would be out of town that weekend, but his partner would be covering for him if she had any problems. The ophthalmologist did not document the call.
On Sunday, the patient called again and was referred to the physician’s partner (also an OMIC insured) who took the call at home. The patient complained of seeing “black” and feeling pressure. Since the patient had a recent FGE, the partner was not too concerned that she was feeling some pressure. He learned that she was on Neptazane and prednisone and told her to come to the office the next day. He did not document this conversation.
On Monday, when the patient presented at the office, her IOP was 60, visual acuity was no light perception, and the lens and iris diaphragm had shifted forward, flattening the anterior chamber. She eventually lost the eye and needed an enucleation.
The patient filed a lawsuit against both ophthalmologists, alleging that she had complained of “pain” during her telephone conversations with them and that their failure to promptly treat the condition resulted in the loss of her eye. Defense experts were supportive of the clinical care given to the patient with the possible exception of not seeing her on Sunday. However, the plaintiff made a very credible and sympathetic witness, and there was no documentation to support the physicians’ version of what was said during the telephone conversations. This lack of documentation was an important factor in the decision to settle, rather than go to trial.
When ophthalmologists are out of the office, they frequently discuss the patient’s care over the telephone with staff, pharmacists, consultants, ER physicians and others. For risk management purposes, ophthalmologists need to have procedures for documenting all of these calls and saving this documentation in the patient’s record.
Phone Call Record Pads Simplify Documentation
Use OMIC’s patient care phone call record pads to document after-hours calls. Put a pad by each phone you use in your home and in your car and carry one in your briefcase, purse or pocket. You record who called and when, what was discussed, any prescriptions ordered and the pharmacy, and follow-up instructions. If the call concerns your patient, put the form in the patient’s chart. If it pertains to someone who is not a patient (e.g., a call from an ER physician), put the form in a general file designated for these calls.
Proper documentation is not fool-proof insulation from a claim when a patient suffers a serious injury such as the one described here. However, it does show that the ophthalmologist is a careful and conscientious practitioner, enhancing the physician’s believability if conflicting recollections arise.
To order OMIC’s phone call record pads, call the Risk Management Department, 800-562-6642, ext. 652.
Questions About Medical Record Retention
By Paul Weber, JD
OMIC Vice President of Risk Management
Digest, Winter 1998; reviewed 6/26/17. Click here for our guidelines: https://www.omic.com/medical-record-retention-guidelines/
Quite often, medical records are the determining factor in the outcome of a malpractice case so it is not surprising that the question I am most frequently asked concerns how long a physician should keep a patient’s records after treatment has ended. Unfortunately, there is no simple answer to this question because of the numerous exceptions to each state’s statute of limitations for bringing suit against a physician. Many defense attorneys will tell you that the best risk management policy is to keep all patient records forever. While this may be the safest advice, it is often impractical. The following questions address both general and specific situations that dictate how long a patient’s records should be kept.
Q How do lawsuits affect medical record retention?
A Lawsuits against physicians for malpractice must be filed by the (allegedly) injured patient within the statute of limitations. However, this time period can be “tolled” or suspended if the patient is incompetent or a minor, or if the provider fraudulently concealed the malpractice, or if a foreign body with no therapeutic or diagnostic purpose was left in the person of the injured patient. In some states, the statute does not begin running from the time the alleged substandard act occurred, but from the time the patient should have been aware that the substandard care caused the problem. This is frequently indefinite and may be subject to the discretion of the judge. Defense attorneys know that before a lawsuit is dismissed by a trial judge because of being untimely filed, the judge will construe the statute of limitations very liberally to allow the plaintiff his or her “day in court.” What might mitigate a liberal construction is whether the defendant physician has been prejudiced by an unjustified delay. If prejudice cannot be shown, the lawsuit may go forward because of a “loophole” in the statute of limitations.
Q How long should I maintain the records of adult patients?
A It is advisable to keep the records of adult patients for ten years after their last contact with the practice.
Q How long should I maintain the records of minor patients?
A For most patients under 18, it is prudent to keep records for ten years after their last contact with the practice (same as adults) or four years beyond their 18th birthday, whichever is longer. For minor patients who will always be considered “incompetent” because of a mental or physical disability, records should be maintained indefinitely or five years after the patient has died.
Q How long should I maintain the records of deceased patients?
A It is recommended that records of deceased patients be kept long enough for the probate of the estate to close, usually five years.
Q How long should I maintain the records of incompetent patients?
A Because of the tolling of the statute of limitations for incompetent patients, their medical records should be kept indefinitely or five years after the patient has died.
Q What other factors influence record retention?
A All records that have been the subject of an incident that could lead to litigation and all records that have been requested by an attorney or administrative agency should be excepted from the general retention policy. These records should not be destroyed until the matter is fully resolved and only with the advice of OMIC or your assigned attorney. If these files are not retained appropriately, the result may be a claim of spoliation, whereby a plaintiff charges that evidence was destroyed that the physician had a duty to retain. Also, federal and state laws and regulations (e.g., Medicare and OSHA) will determine the length of time that a medical record is retained. Managed care contracts should be scrutinized to determine if your general retention policy meets the contract requirements.
Q How should patient records be destroyed?
A Every practice should have a written record retention and destruction policy in place, and staff should be familiar with the policy to ensure uniform record handling and minimize claims that a patient’s records were destroyed improperly. Even when it has been decided to dispose of records, the practice should maintain some basic information, including the patient’s name, date of birth, Social Security number, dates of first and last visit, general problems and procedures done in the office. Destruction of records must be accomplished in a manner that protects the confidentiality of the documents being destroyed. Documents should be shredded or burned rather than simply disposed of in a garbage receptacle. Horror stories abound regarding incomplete record destruction resulting in public disclosure of confidential information.
When Should You Call The Claims Department?
By Paul Weber, JD
OMIC Risk Manager
Digest, Winter 2002
The OMIC Claims Department frequently receives questions from insureds about when it is necessary to report a claims-related matter and what impact such a report will have on their policy, particularly if the patient does not demand damages. Another area of concern for insureds is the need to report claims to regulatory agencies and hospitals.
Q Why should I report a claims-related matter to OMIC if I have not been served with a summons and complaint?
A When you call OMIC immediately after an incident occurs, we may be able to advise you of steps you can take to keep the situation under control. OMIC’s claims and risk management staff have handled hundreds of ophthalmic claims and are available to assist you and answer questions regarding any matter that you think might have the potential of arising into a claim.
Q What matters must I report to OMIC?
A Your OMIC policy states that you shall report any claim. A claim is defined in the policy as a written notice, demand, cross-claim, or lawsuit (including an arbitration proceeding) which the insured receives resulting from a medical incident. Your OMIC policy is claims made, meaning you are covered only if the policy is in force both on the date the incident causing the claim occurs and on the date the claim is first reported. Therefore, you should report any matter to OMIC as soon as possible to protect your insurance coverage.
Q Should I report an incident if there is no lawsuit or other written notice or demand from the patient?
A Your OMIC insurance policy also states that you shall report, as soon as practicable, any medical incident that may reasonably be expected to result in a claim. A medical incident is defined as any act or omission in the furnishing of professional services. A report of a medical incident will be deemed notice of a claim and will trigger your insurance coverage for this event. Again, by reporting a medical incident, you are protecting your OMIC insurance coverage.
Q If I report an incident before it becomes a claim, will it affect my record and cause my premium to go up?
A No. Reporting a patient problem or incident (an occurrence with the potential of developing into a claim) that does not develop into a claim will have no effect on your premium. Early notice of an incident shows that you are proactive and risk management conscious.
Q How does OMIC categorize reports from insureds?
A Each matter is unique and how a file is set up, with the exception of a lawsuit, will depend on the nature of the incident or medical event. The status of a file may change over time, and a matter set up as an incident may later become a lawsuit if the insured is served with court papers. It bears repeating that regardless of how a file is set up, insurance coverage is extended only if the policy is in force both on the date the incident causing the claim occurs and on the date the claim is first reported.
Q What duty does OMIC have to report claims to regulatory agencies such as the National Practitioner Data Bank (NPDB), state medical board, and state insurance department?
A OMIC must report a claim to the NPDB if an indemnity payment is paid on an insured’s behalf. When such a report is made to the NPDB, a copy must be sent to the appropriate state medical board. In addition, a very few state medical boards and insurance departments (e.g., Texas) require that all claims be reported regardless of whether an indemnity is paid. By definition, matters set up by OMIC as incident or miscellaneous files need not be reported to these agencies. OMIC staff will advise and consult with an insured before a report is made to any agency.
Q What matters are reported to hospitals and HMOs for credentialing?
A Because OMIC encourages policyholders to report all potential incidents on a precautionary basis, OMIC reports loss history only if a case closed with an indemnity payment or an actual lawsuit was filed. The insured must give written authorization before OMIC sends a loss history report to a hospital or HMO.
This article is for informational purposes only and is not intended as a modification of the terms and conditions of your OMIC insurance policy. Please contact the Claims Department at (800) 562-6642, ext. 629 or claims@omic.com if you have other questions about reporting a claims-related matter to OMIC.
Explanation of Application Process
Updated 8/22/2019
Q. Must I be a member of the Academy to apply?
A. Yes. Because OMIC was created and is exclusively sponsored by the Academy, we require that ophthalmologists be a member of the Academy to be eligible for coverage with OMIC. As an Academy member, you are also eligible for many other valuable benefits.
Q. Do I need to send payment with my application?
A. No. In fact, you should not submit payment until you receive our quote letter, review it, and decide to become an OMIC insured.
Q. How long will it take to process my application?
A. We recommend that you forward your completed application to us at least 30 days prior to your requested effective date of coverage to allow us ample review time. If you need us to expedite your application review, please notify us and we will do our best to accommodate your needs.
Applications are usually processed based upon the order received and the requested effective date. Review times will vary depending upon the completeness of the application, the level of review required, and the volume of applications received, among other factors. Processing time may take longer if the application is incomplete, if the applicant has prior claims history, or if special review by members of our physician-staffed Underwriting Committee is necessary.
Q. What does OMIC look for when reviewing my application?
A. We consider a variety of factors that have an impact on your liability exposure, including your training, previous practice experience, claims history, and scope of practice, to verify that your exposure is reasonable based on guidelines established by OMIC’s Board of Directors, composed of practicing ophthalmologists like yourself. By doing so, we are able to keep our coverage reasonably priced; your premiums will not be used to subsidize high risk physicians.
Q. Will OMIC consider me if I have had any claims?
A. Yes. One of the advantages of being insured through OMIC is that we have a committee of experienced, practicing ophthalmologists who review each claim. We know that claims sometimes are simply an unavoidable result of practice in today’s litigious environment. While OMIC does consider claims frequency and severity, we also look beyond the “numbers” when evaluating the quality of care rendered and when determining your eligibility for insurance.
Q. Will I have to complete this detailed application every year?
A. You will be asked to complete an abbreviated version of the general application once every three years to provide OMIC with current information regarding your practice activities. We do ask, however, that you notify us promptly if changes in your practice or liability exposure occur to make sure that you are properly insured. For examples of the kinds of changes you should advise us of, click here.
You may also need to complete other short-form questionnaires if you perform refractive surgery or other procedures that require special underwriting.
Q. When should I cancel my current policy?
A. You should never cancel your current coverage or allow it to lapse until we have advised you in writing that your application has been approved. Although most applicants are ultimately approved for coverage, occasionally an application may not meet OMIC’s conservative underwriting guidelines and may be denied as a result.
Q. What happens if an application is denied?
A.The applicant will have two choices. When the company determines it is not in a position to offer coverage, we will notify the applicant of our intent to decline the application and advise the doctor why we are considering this decision. The applicant will have the opportunity to request reconsideration by our Underwriting Committee by sending us additional or clarifying information within the time period specified in our notice. Or, the physician may withdraw his/her application and seek coverage elsewhere.
