Message from the Chair
Tamara Fountain MD, OMIC Chair
I spent this past Mother’s Day at my grandmother’s house in Appalachian Virginia.
Granny is 89 years old and still lives independently in the house my grandfather built almost 50 years ago. She remains witty, often ribald, and cognitively sharp as a tack, but each time I return to her Blue Ridge Mountain hamlet, I notice small, but real and progressive changes in her motor abilities. She fell out of the blue in a bank parking lot several months ago. While nothing was broken, the experience shook her confidence and was a sobering reminder to our extended family of the encroaching threats to her physical and emotional independence.
As you will read in this issue of the Digest, falls have a crippling impact on the quality of life in the elderly population. We ophthalmologists are second only to geriatricians in the percentage of elderly patients we see in our practices. Add to that the visual difficulties inherent to our patient population and you have the perfect recipe for an accident—and lawsuit—waiting to happen.
It’s not just the elderly we have to worry about either. As a plastics specialist, I am commonly probing, poking, cutting, and cauterizing patients in my office procedure room. I encounter a handful of vasovagal events in a year, usually in someone under 40. Swooning doesn’t necessarily have to occur in a visibly nervous patient or even during the procedure. A 20-year-old male patient in our practice had an uneventful chalazion incision and was conversant and calm throughout the procedure. He checked out at our front desk and took the elevator to the ground floor. Only when walking to his car, did he pass out, pitching forward onto his face and breaking his jaw, nose, and several teeth. This prompted my office to establish a protocol in which all patients undergoing even the most minor procedures are advised to bring a companion, not only to drive them home, but to escort them to their vehicle and home after the office procedure.
We see patients who are old, frail, and can’t see. We do office procedures that can trigger the fight or flight response in even the most stoic patient. Falls cause life-threatening injuries and can signal the beginning of the end in an elderly person’s life. The bigger they are, the harder they fall, so it is said. Anyone who has ever seen (or worse, heard) a human fall to the ground knows it is a hard and traumatic landing no matter the body type or age.
Falls by their nature are unexpected but we can do a better job of anticipating these events. By putting certain policies and procedures in place, you can protect your patients from bodily harm and you and your practice from litigation harm.
TAMARA R. FOUNTAIN, MD, OMIC Board of Directors
Message from the Chair
Tamara Fountain MD, OMIC Chair
“We value your security and are committed to protecting your financial health,” thus said the letter accompanying a new credit card I received not too long ago.
In response to another major retailer cyber hack, my bank had taken the liberty of not only replacing the plastic of its millions of card holders but changing the account numbers as well. Despite the aggravation of alerting all my autopay accounts, I did take some comfort in another layer of protection for my financial information. It made me wonder, do I have the same level of comfort when it comes to the security of my practice’s information? The answer to that question is a little more complicated.
It used to be that the greatest external threat to the security of my practice might be a natural disaster. Fire and flood almost seem welcome compared to the vulnerabilities we face today in our interconnected, virtual world. You don’t have to lose an EMR laptop or have a server stolen from your office (though both have happened to our insureds) to put patients’ privacy at risk. Hackers on the other side of the world can breach firewalls and wreak havoc on your practice and its reputation.
It’s not just larger institutions like hospitals that have experienced these breaches either. OMIC has received approximately 50 reported claims related to cyber breaches. Practices may be targeted by a disgruntled employee or simply chosen at random by hackers who are now moving down the food chain as larger institutions beef up their cyber defenses.
None of this is surprising when you consider that your patients’ medical information is worth 10 to 20 times more to criminals than a credit card number on the black market. Names, birth dates, policy numbers, diagnosis codes, and billing information are collected by fraudsters to create fake IDs that can be used to buy and resell medical equipment and drugs. Patient identification data can be combined with false provider numbers to file phony claims with various insurers.
As healthcare providers, we must disclose breaches of unsecured data to comply with HIPAA and HITECH requirements. This may include contacting each of our patients to explain what happened. We also must get our systems back up and running and will be expected to help our patients protect themselves from further harm by purchasing credit monitoring services or providing some other remedy. We also may face fines or penalties.
OMIC recognized these external threats long before most other carriers and, 17 years ago, added benefits to the standard professional liability policy to help pay for several non-patient care professional liabilities. The Board voted unanimously last fall to double the amount of this coverage to $100,000 per policy period. You’ll be glad to know that this additional coverage comes at the same low price of FREE for our insureds. Learn more at www.omic.com/policyholder/benefits/.
Although I’m still a little concerned I may need to deal with one of these regulatory issues or cyber breaches in the future, I do take comfort in knowing that my OMIC policy is there to help me when I need it.
TAMARA R. FOUNTAIN, MD, OMIC Board of Directors
Message from the Chair
“Extra! Extra! Read all about it.”
This issue of the Digest may have some of the most practical information you’ll ever find on arguably the greatest global risk management issue in medicine: informed consent. When not managed properly, informed consent deficiencies can create trouble and misery for patients and physicians alike. A recent review of our own claims shows allegations of improper informed consent are over 50% more likely to result in a plaintiff award with damages that are substantially higher as well. Why is informed consent so critical? When we don’t take the time to properly educate patients about the pros, cons, and alternative options of the medical treatments we provide, we open ourselves to claims that they would have refused treatment had they been adequately apprised of the risks.
When things go wrong, there are two groups of patients who are more likely to allege improper consent: those who tend not to question the recommendations of their doctors and those who have strong—and potentially unrealistic—expectations for their clinical outcome. These are people who may have low health literacy (not to be confused with IQ) and need more explanation and education on the potential consequences of any medical intervention. In these situations, it is especially important that informed consent and patient instruction are not just thorough but meticulously documented. While it is neither possible nor practical to list every conceivable risk, the most common and the most catastrophic potential adverse events are a good place to start. Forms that use plain English and emphasize the active voice are most understandable, e.g., “Take your drops twice a day,” versus “Topical medications should be used twice daily.” Note in the record what patient education materials were given out. These resources serve as “extenders” of your informed consent discussion. Keep copies of these handouts as they will be powerful evidence in our defense of you should you be sued.
Feeling overwhelmed? We are here to help. OMIC has scores of procedure-specific consent forms—downloadable and customizable—that are now, through a partnership with the Academy’s Foundation, also translated into Spanish. Just a click away at www.omic.com, these forms combine frank discussions on risks/benefits/alternatives with disease-specific patient education to help arm patients with information they need to feel confident in their medical decision-making. Also on the website is an informed consent webinar, “My Doctor Never Told Me THAT Could Happen.” We feel so strongly that proper informed consent will strengthen our defense of any litigation that we will give ophthalmologists a 5% to 10% premium credit just for viewing it. Looking for more patient education materials to supplement your practice? Check out the new and innovative multimedia offerings on the aao.org website.
Informed consent is part of the conversation that we have with our patients. It acknowledges the vagaries inherent in medicine and fosters a climate of candor, rapport, and trust that may very well represent the best weapon we have against litigation: a meaningful personal connection with the patients we treat.
Happy reading.
Tamara R. Fountain, MD, Chair of the Board
Message from the Chair
The Bean. Magnificent Mile. Deep dish pizza.
There are a lot of things to like about my home town of Chicago. But for doctors, the inhospitable malpractice environment is not one of them. Perennially cited as one of the nation’s “judicial hellholes,” Cook County is a notoriously plaintiff-friendly venue with often unpredictable and seemingly unjustifiable jury awards. OMIC premiums for those of us practicing here reflect this increased liability exposure, averaging $17,000, well above the national average of $9,500. Attempts at tort reform in Illinois have been about as successful as our Cubs in postseason.
To see the power of tort reform in action, one need only look west. California enacted what is now recognized as the gold standard for malpractice reform in 1975. This legislation, the Medical Injury Reform Compensation Act (MICRA), limits pain and suffering damages to $250,000. It puts no caps on economic damages, which have continued to outpace inflation by more than double. Despite these increases, malpractice premiums for California physicians have stayed below the national average, thus helping to keep healthcare costs down and retaining access for patients. Several other states have adopted similar legislation with correspondingly good results.
MICRA is now under attack. Californians will go to the polls in November to vote on an initiative that, among other things, proposes to more than quadruple the cap on pain and suffering damages to over $1,000,000. Raising caps alone is not widely popular with voters, in part because it is expected to raise healthcare costs and limit access. To sweeten the deal, the plaintiff attorney bar has added two seemingly unrelated provisions: random and post-adverse event physician drug testing, and mandatory use of a cumbersome and non-secure statewide database of patient prescription information (CURES) in order to cut down on prescription drug abuse. Focus groups have shown these issues resonate with voters. And why shouldn’t they? An informal poll of my own physician colleagues finds little resistance to drug testing. While most did not relish the thought of submitting to such scrutiny, few could offer compelling arguments why physicians should be exempt from the same workplace drug testing as other high-stakes professions, such as pilots, police officers, or school bus drivers.
One can argue the pros and cons of physician drug testing, but we feel any such debate and vote should address this issue independently and not be a Trojan Horse for dismantling the nation’s oldest and most successful initiative in tort reform.
OMIC insures 484 California ophthalmologists, over 10% of our entire insured base. As a nationwide carrier, we clearly see the impact MICRA has had on minimizing frivolous lawsuits and stabilizing malpractice premiums in California. For that reason, OMIC has chosen to support Californians Allied for Patient Protection (CAPP), a broad coalition of California-based physicians, hospitals, and other providers fighting to keep the provisions of MICRA in place.
Watch for this battle to spill over nationally in the coming weeks. The decision on Prop 46 will impact tort reform everywhere. We hope California voters will see through the smoke screen.
Tamara R. Fountain, MD, Chair of the Board
Message from the Chair
“It’s just words on a piece of paper!”
This was the tearful response of my son, then 5, who had “graduated” from kindergarten and expecting a trophy or some other shiny hardware, had instead received an unframed computer-generated “diploma.” As he fought back bitter tears of disappointment (and I stifled a chuckle at the pomp of a kindergarten graduation in the first place), I hugged him close and tried to reassure him that some of the most important things in life are “words on a piece of paper.” Whether a birth certificate, medical license, or mortgage note, just about every important life event, achievement, or transaction is formalized with a document.
Words on paper (and increasingly, a computer screen) continue to be the primary method physicians use to record the patient encounter. When things go wrong, when there is a dispute, when answers are needed regarding a clinical outcome, the only reliable information available is what was documented in the medical record. One of the earliest tenets of risk management hammered into us during training is to document thoroughly and maintain the integrity of the medical record. “If it’s not in the record, it wasn’t done,” is a familiar plaintiff attorney refrain.
Failure to document, lost charts, medication errors, illegible entries, and altered records are examples of documentation deficiencies that have torpedoedan otherwise defensible OMIC malpractice claim. The migration of medical documentation to the electronic record is the solution, we are told, to most of what ails the paper record. Perhaps, but not necessarily. On the plus side, lost charts, illegible handwriting, and record alteration should be a thing of the past. On the minus side, with the click of a mouse, one can copy, paste, and propagate redundant, repetitive, and sometimes inaccurate data. In this issue of the Digest, we explore the state of medical record documentation to better harness the good parts of the electronic platform while avoiding its pitfalls.
Speaking of words on paper, we are excited about a project OMIC has entered into with the AAO’s Hoskins Center for Quality Eye Care. We are translating each of the consent forms on the OMIC website into Spanish. This will make our internationally recognized library of ophthalmic consent forms available to a broader audience.
Our insureds spoke; we listened. While already permitting immediate sequential bilateral cataract extraction, OMIC has modified its underwriting requirements to allow immediate sequential bilateral intraocular refractive surgery. With appropriate guidelines and proper informed consent, insureds may now offer this option to patients seeking same-day bilateral refractive lens extraction.
Finally, every five years, our financial statements and overall corporate governance are reviewed by auditors from our domicile state of Vermont. I am happy to report that OMIC received the top rating on its internal financials and controls and was placed in the top compliance tier of the nation’s physician insurers. More good words on paper!
As for that tearful kindergartner, his college graduation was a few weeks ago. The setting may have been different, but many things were the same. There was pomp, circumstance, and more words on a piece of paper, and again some tears. This time, however, the tears were mine.
Tamara R. Fountain, MD, Chair of the Board
