Documenting Patient Calls Is Prudent Risk Management

By Michael R. Redmond, MD

Argus, July, 1992

Most ophthalmologists know that the telephone is essential to their practice, but few think of it as an important aspect of risk management. Because the telephone is usually the patient’s first contact with the ophthalmologist’s office, it should be used to make the patient feel welcome and important, not put off or ignored. Telephone contact alone may be considered enough to establish the physician-patient relationship. Accordingly, telephone contact should always be courteous and helpful so patients hang up feeling that their problems will receive the proper attention and will be resolved appropriately.

The ophthalmic office staff often are responsible for “telephone triage.” Inability to reach the ophthalmologist by telephone in times of perceived crisis is a common complaint of patients. Untrained staff without proper guidelines for handling urgent and emergent care can create the risk that patients may not receive care in a timely manner, or that incorrect or inappropriate advice will be given out.

Every office should establish prescription renewal procedures. The staff person handling the renewal should secure the ophthalmologist’s verbal approval, document it fully in the chart, and date and sign it. Although not all telephone contacts require documentation, anything unusual-an angry, belligerent or threatening patient, for example-should always be well documented.

The ophthalmologist and office staff must be careful about giving treatment, advice or explanations, or obtaining informed consent over the telephone. Always have the chart available before talking to a patient, and document these conversations. They can be quickly recorded when the chart is in hand at the time of the call.

Treating a patient over the telephone without examination may leave you open to criticism. There is always the risk of incomplete information, misinformation or drug misuse, especially in a multi-physician practice where all the particulars of a patient’s condition may not be known to the ophthalmologist taking the call. Always ask about potential “problem patients” before assuming a call for another physician and pass on this information to any ophthalmologist covering for you, both as a courtesy and in the interest of patient care.

Periodically review your after-hours answering service as to qualifications, courtesy and timeliness of physician contact. Physicians have been held vicariously liable for the failure of their answering services to contact them in a patient emergency.

Once again, documentation is critical. Each physician in a practice should have a logging system both at the office and at home for recording and transcribing telephone notes into the office chart in a timely fashion. Nothing is more comforting when you are challenged than being able to go back to the chart and pull up an old note supporting your position.

Pre-printed phone record pads ensure that office staff renewing prescriptions by phone document the necessary information. This should include the approval of the treating physician, the caller’s and patient’s names, a phone number where they can be reached, a brief history of the patient and the nature of the call, the prescription name and recommended follow-up, and the pharmacy filling the prescription. The staff person should date and initial the phone call record, and indicate the times the call was received and returned.

OMIC offers pre-printed telephone record pads to its insureds. Call OMIC at 415-202-4652 for more information.

This continuing series on risk management is presented by the Ophthalmic Mutual Insurance Company (OMIC), a risk retention group providing professional liability insurance exclusively to Academy members. If you have comments or questions, write or call OMIC, 655 Beach St., San Francisco, CA, 94109 or (800) 562-6642.

Before You Say Goodbye

See Terminating the Physician-Patient Relationship for our current recommendations and sample forms.

Digest, Spring, 1992

Although the decision to terminate a doctor-patient relationship should never be taken lightly, unresolvable noncompliance, patient conduct or financial reasons may make a continued relationship impossible. Should you decide that it is in your and the patient’s best interest to end the relationship, OMIC suggests you take the following steps recommended in a publication by the American Medical Association’s Specialty Society Medical
Liability Project. ¹

• Notify the patient in writing, preferably by return receipt mail;

• Provide the patient with a reason for the termination;

• Agree to continue as the patient’s treating physician for a reasonable period of time, such as 30 days, while the patient makes arrangements for the services of another physician;

• State clearly the date on which the termination will become effective;

• Provide information about resources, such as the medical society or local medical center, that can aid the patient in identifying other physicians of like specialty; normally, the terminating physician should also offer to recommend other physicians from whom the patient may choose;

• Offer to transfer records to the new physician upon receipt of a signed authorization to do so;

• Offer to see the patient in cases of emergency within a stated period of time after termination;

• Include the above-referenced items in the letter notifying the patient of termination;

• Finally, check with your personal legal counsel regarding specific requirements in your state or jurisdiction for terminating a doctor-patient relationship.

Notes:

1. Risk Management Principles & Commentaries for the Medical Office. American Medical Association/Specialty Society Medical Liability Project, Chicago. 1990: 14-15.

Advance Directives and Surrogate Decision Makers

Anne M. Menke, RN, PhD, OMIC Risk Manager

Digest, Fall 2010

A policyholder called for advice about a mentally handicapped patient who resided in a state-run home. As the patient had never had decision-making capacity, power of attorney (POA) for medical decisions had been granted to a relative. The relative was now 90 years old, lived in another state, and was no longer able to travel. Meanwhile, the patient had developed visually significant cataracts that, given his disability, were having a profound impact on his ability to take care of himself and participate in activities of daily living.

Q  A state representative accompanied the patient and said the state is applying for guardianship. What is involved? Do I have to wait until this process is complete?

A  This patient has been determined by a judge to be incompetent to make medical decisions. While it is likely that a judge will approve the state’s application to assume POA duties, the state does not currently have the authority to make medical decisions on the patient’s behalf. However, this patient would benefit from prompt surgery, so waiting is not advisable either. Arrange a conference call with the patient, the relative with the authority to make medical decisions, the state’s representative, and someone from the ambulatory surgery center where the procedure will be performed. If the relative and state’s representative agree that the surgery is appropriate, and the ASC is comfortable with the consent process, obtain the signature of the relative and proof of POA status, document the conference call, and proceed with surgery.

Q  I’m on call and have a patient who is unconscious but needs repair of a ruptured open globe. May I proceed without consent?

A  Possibly. Quickly check to see if the patient has an advance directive in his or her belongings or in the medical record. Advance directives address the kinds of decisions a patient would like someone to make if he or she is unable to participate in a consent discussion. If there is no available advance directive or person with POA, and you feel the patient requires emergent treatment, ask the ER physician and/or OR nurse to determine the facility’s process for emergency exceptions to informed consent. Some hospitals require a second physician to agree that the care needs to be provided without delay. Both you and the second physician should document the need for emergent treatment and attempts to reach the patient’s family. Direct a hospital staff member to continue attempts to contact a family member or friend, as consent for additional non-emergent treatment will need to be obtained from a surrogate.

Q  How should I proceed if there is time to try to find a surrogate decision maker?

A  The ideal surrogate is one who understands the patient’s health care values and goals and will respect them during the decision-making process. Each state has a system for determining who may act as the surrogate decision maker and ranks them in decreasing order of authority. The top two are usually the individual who has been granted POA in an advance directive or a legal guardian with POA for medical decisions. Next come spouses, adult children, parents, and adult siblings. Adult children and siblings who do not have POA are able to act as surrogates only if they are in agreement. Many hospitals ask members of an Ethics Committee for guidance when these family members have different opinions on whether to proceed with treatment.

Q  Our ASC suspends “do not resuscitate” and advance directives during surgery. My patient is quite upset and insists that her wishes be honored. How should we proceed?

A  Your patient brings up a difficult issue that most ASCs and ORs have not addressed, even though all ask patients if they have advance directives. While you could simply try to find an ASC that will honor the patient’s wishes, it would be worthwhile to discuss this problem with the facility’s leadership team. The American Society of Anesthesiologists (ASA) has stated that “automatic suspension of DNR orders… may not address a patient’s right to self-determination in a responsible and ethical manner.”1 Instead, the ASA suggests asking an anesthesiologist to review possible options with the patient. First, the patient may choose full resuscitation, thereby suspending DNR orders and other directives during anesthesia and the immediate postoperative period. Second, the patient could choose a limited attempt at resuscitation defined with regard to specific procedures. The anesthesiologist and surgeon would inform the patient of procedures that are essential to the success of the planned anesthesia and procedure. The patient consents to these but refuses any procedures that are not essential. Finally, the patient may opt for a limited resuscitation defined with regard to the patient’s goals and values. The patient and family, after a discussion with anesthesia, agree to allow the anesthesiologist to use professional judgment. Full resuscitation procedures will be used to manage adverse clinical events that are quickly and easily reversible. The patient will not be treated for conditions that are likely to result in permanent neurological impairment or unwanted dependence on life-sustaining technology.

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.

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.