Don’t Ever Alter Records in an Attempt to Change Facts
By Jerome W. Bettman Sr., MD
Argus, October, 1991
Altering records in an attempt to change the facts is one of the most certain ways to lose a malpractice suit. Never do it. It is dishonest, unethical and is nearly always detected. Once the plaintiff’s attorney is able to show that a physician has improperly changed a patient record, the attorney can maintain that nothing the physician says can be trusted and the defense will lose.
There is often a great temptation to alter records when a claim has been filed. For example, if an ophthalmologist has neglected to record the intraocular pressure in a patient on whom another ophthalmologist later makes the diagnosis of glaucoma with significant nerve damage, the defendant-ophthalmologist may be tempted to insert a pressure reading, especially if there is plenty of space on the record. The ophthalmologist may even consider using the same pen as was used for the rest of the record and make it correspond in all respects to what has been written before.
How Can These Careful Alterations Be Detected?
Records are frequently duplicated for insurance reports. If the plaintiff’s attorney obtains a copy of the record before it was altered and then receives a copy of the altered record, the defense loses. In addition to this hazard, there are companies whose business it is to detect such changes.
When is Making Changes in a Record Proper and How Should It Be Done?
When taking a history, the patient may change his or her story, or the ophthalmologist might be interrupted in his recording or thought process and write something that is irrelevant or wrong. These are instances when corrections may and should be made. The proper way to make such a correction is to draw a line through the unwanted statement in such a manner that it is still legible, write the appropriate statement, date and initial it. A plaintiff’s attorney cannot maintain that this method of change is an attempt to conceal the true facts and a defendant-ophthalmologist who handles corrections in this manner will be accepted as honest and his statements are more likely to be believed.
In conclusion, once a claim has been made, never, never alter the plaintiff’s record no matter how tempting or damning the document.
Fear and Loathing of Malpractice Litigation
By Paul Weber, JD
Mr. Weber is Vice President of OMIC’s Risk Management/ Legal Department.
Digest, Fall 2003
To the view the tables referenced in this article, go to http://www.omic.com/new/digest/DigestFall_03.pdf
Media coverage of the impact of malpractice litigation typically focuses on multimillion dollar jury awards, skyrocketing insurance premiums,and physicians who decide to relocate or retire early because an unfavorable malpractice climate has made it too expensive to continue practicing in their state. Regrettably, scant coverage is given to the pervasive negative impact that fear of litigation has on the decision making of physicians and the delivery of health care services.
In March 2002, a Harris poll was conducted by phone and online of more than 300 physicians to provide insight into the impact that fear of litigation has on the practice of medicine and the delivery of medical care. (The results of the Harris poll, as well as other polls relating to the medical liability crisis, can be found on the Common Good web site at http://www.commongood.org/blog/c/health-care)
OMIC interspersed many of the Harris poll questions throughout its recent Mock Litigation interactive presentation before more than 230 ophthalmologists in Anaheim. The results of OMIC’s informal “poll” are strikingly similar to the Harris poll. Both polls indicate that fear of litigation influences all aspects of health care decision making, from ordering tests, prescribing medications, and making referrals to a reluctance to discuss adverse events with colleagues.
That many medical professionals’ behavior is clearly influenced by their fear of litigation can perhaps be explained by the finding that the overwhelming majority of physicians (85% in the OMIC poll and 83% in the Harris poll) do not believe they can trust the current system of justice to achieve a reasonable result if they are sued. This widespread mistrust contributes to feelings of apprehension of possible lawsuits and encourages the practice of defensive medicine rather than care based on medical need.
The Harris and OMIC polls asked the following question concerning three areas of medical care: “Based on your experience, have you noticed fear of malpractice liability causing physicians to (1) order more tests; (2) prescribe more medications; and (3) make more referrals than they would based on professional judgment of what is medically needed?”
As Figure 1 shows, both polls overwhelmingly demonstrate that the omnipresent fear of having to deal with litigation results in excessive treatment. Not surprisingly, physicians were nearly in unanimous agreement in both polls (99% of OMIC respondents; 94% of Harris respondents) that these extra tests, medications, and referrals contribute in a significant way to health care costs. The fact is that every time a test is ordered or a treatment is rendered that is not medically necessary, health care funds are diverted away from a patient who really needs the care, while the patient undergoing the test or receiving the treatment is exposed to an unnecessary risk.
A paradox can be observed here. Even though physicians are increasingly using tests and referrals to avoid malpractice litigation, claims and lawsuits continue to rise. As Figure 2 shows, OMIC claims frequency has been rising steadily and substantially since 1998.
Apparently for OMIC insureds, more treatment does not result in fewer claims. Indeed, as Figure 3 demonstrates, some of the OMIC claims that have resulted in the largest payouts to patients are in fact related to allegations of failure to order a test leading to failure or delay in diagnosis or allegations of failure to make a timely referral leading to delayed treatment. The number of large payout cases ($500K and above) has increased severely since 1998. From the company’s inception in 1987 to 1998, there were only five large losses; there have been ten large losses in the ensuing five years.
The increase in frequency and severity of OMIC claims is not due to a decline in the quality of ophthalmic care. It remains constant that year after year, the vast majority of OMIC claims (over 78%) are disposed of without an indemnity payment to the patient. It is commonly accepted that most claims and lawsuits are attributable to a combination of unmet patient expectations regarding a procedure or course of treatment and poor doctor-patient communication. Throw the following technological and societal dynamics into the mix and you have a recipe for claims:
- Improved outcomes leading to unrealistic patient expectations.
- A large population of lawyers practicing in a litigious society.
- HMOs and other managed care entities contributing to real and perceived perceptions of problems with access to health care.
As a result of the current dysfunctional litigation system, there is an unfortunate sense of futility among physicians that there is little they can do to avoid being named in a malpractice suit. This sentiment is often expressed by OMIC insureds in surveys conducted by the Claims Department after a claim or lawsuit has been closed. One of the comments most frequently heard by insureds is that the claim was frivolous and there was nothing they could have done to avoid it. The following comment by one insured sums up the frustration felt by many with a tort system that seems unjust. “It appears that plaintiffs have unlimited rights and the accused have no rights. In the eyes of Medicare, state licensing boards, and hospital boards, doctors are presumed guilty and must prove their innocence. Reports of staggering malpractice jury awards add to the fear that regardless of the facts, regardless of guilt or innocence, doctors are at risk of losing everything they own with any lawsuit brought against them. These outrageous awards also encourage a ‘win the lottery’type of mentality on the part of plaintiffs and a feeding frenzy for lawyers hungry for cases. The current liability system is terribly unfair to doctors and in no way helps us take better care of our patients, which should be our primary goal as physicians.”
Physicians in both the OMIC and Harris polls agree that 95% of malpractice claims arise as a result of adverse results rather than actual error. However, in a litigious society, the priority is to find “fault” and not to be unduly concerned with whether it was an “adverse result” or an “error.” An emerging patient safety movement is critical of the current system of health care delivery for being overly complex,ineffective, and intrinsically hazardous. It proposes shifting the focus of malpractice litigation from finding fault to scientific and analytical review of medical errors with the goal of preventing such errors in the future.
The patient safety movement understands that as medical care becomes increasingly complex, there are many opportunities to improve quality and safety and reduce costs. Failures of the system occur as a result of a combination of multiple small failures, each individually insufficient to cause an accident but when combined, capable of leading to catastrophic injuries. Since fault is not the focus of the patient safety movement, it fosters among health care providers an open and ongoing analysis of the latent and active errors that contribute to incidents and near misses. There already exists in medicine a collaborative inclination to openly discuss and consider ways to reduce errors. Both polls found that physicians strongly agree that open communication and analysis of incidents, adverse events, and errors helps them avoid similar mistakes. However, a significant barrier to information sharing among physicians is the fear that this information will somehow be used to prepare a lawsuit against them.
There is no one quick fix to remedy the negative impact and detrimental effects that fear of litigation has wrought on health care providers and, consequently, on patient care. Reversing this trend will require a strong, sustained effort to raise awareness among patients and providers of the seriousness of the situation and the efforts being made in health care to improve patient safety.
Figure 3
State Indemnity Year Allegation
RI $500K 2003 Failure to diagnose brain tumor
CT $500K 2003 Failure to diagnose retinal melanoma (patient died)
IL $1M 2002 Steroid mismanagement (joint degeneration)
TX $850K 2002 Failure to diagnose lung cancer
TX $500K 2002 Negligent retrobulbar to treat pain
TX $500K 2002 Numbness OS post retrobulbar to treat pain
AZ $1.8M 2001 Failure to diagnose/treat pediatric glaucoma
IL $1M 1999 Failure to treat pediatric corneal ulcer in the ER
MA $1M 1999 Stroke post strabismus surgery
AZ $740K 1999 Negligent administration of marcaine via catheter (patient died)
GA $575K 1996 ROP lost to follow up
TX $735K 1995 Failure to diagnose endophthalmitis post cataract surgery
FL $656K 1995 Corneal perforation during blepharoplasty
FL $500K 1995 Garamycin toxicity causing blindness
FL $790K 1993 Failure to diagnose pituitary tumor (patient died)
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.
Preventing and Managing Surgical Fires
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Summer 2006
As the Closed Claim Study in this issue illustrates, there is much ophthalmologists, anesthesiologists, nurses, and surgical facilities can do to avert these rare but devastating occurrences. Accordingly, many professional organizations have issued guidance, most of it based upon the research of ECRI’s Accident and Forensic Investigation Services. Moreover, accrediting organizations have made minimizing OR fires a compliance issue for many ophthalmologists who own or operate accredited office-based surgery suites or ambulatory surgery centers. The Joint Commission on Accreditation of Healthcare Organizations included surgical fire prevention in its 2005 and 2006 National Patient Safety Goals, and the Centers for Medicare and Medicaid regards this risk management effort as a condition of participation. This Hotline article will present actions ophthalmologists can take to protect themselves, their patients, and the entire surgical staff.
Q What causes surgical fires?
A Three elements are needed: oxygen, fuel, and a spark, and all are present wherever surgery is performed.Oxygen is abundant in the operative setting; heavier than air, it pools under drapes. The list of fuels is extensive, and includes prep solutions, ointments, cotton balls, drapes, sponges, endotracheal tubes, masks and tubing, and the patient’s hair, especially the fine hair on the face. The spark is provided by electrosurgical units, electrocautery units, and lasers.
Q What precautions need to be taken before the surgery begins? As the surgeon, am I responsible for these?
A The entire surgical team must cooperate to prevent fires, and as the surgeon, you can take a leadership role. If flammable preps such as alcohol are used, allow them to fully evaporate and dry before draping the patient, and check for pooling or wicking.[1] Arrange the drapes to fullyexpose the face; this helps minimize oxygen and nitrous oxide buildup underneath. Place suction under the drapes to scavenge oxygen and further reduce the concentration of pooled oxygen. Use a properly applied incise drape, if possible, to help isolate head and neck incisions from oxygen-enriched atmospheres and from flammable vapors under drapes. As a general policy, use air or ≤ 30% oxygen for open delivery during procedures. Coat facial hair near the surgical site with water soluble surgical lubricating jelly to make it nonflammable. Moisten sponges, gauze, and pledgets (and their strings) to make them resistant to ignition; keep a water sponge on the Mayo stand for this purpose.
Q Are there steps I should take when using electrosurgery, electrocautery, or laser surgery?
A Yes. Communicate with anesthesia personnel about the need for oxygen and inform them of planned use of equipment that could cause sparks, such as cautery units and laser. Ask the anesthesia provider to stop using supplemental oxygen (if > 30%) at least one minute prior to and during the use of the unit if possible. Use clear methods to communicate the use of oxygen, i.e., “Oxygen on!” and “Oxygen off!” Activate the unit only when the active tip is in view, and deactivate the unit before the tip leaves the surgical site. Place electrosurgical electrodes in a holster or another location off the patient when not in active use. Place lasers in standby when not in active use. Do not place rubber catheter sleeves over electrosurgical electrodes; instead, use manufactured insulated electrodes. Keep the endoscope light away from drapes to prevent heat from igniting the drapes.
Q What should I do if I notice a surgical fire?
A First, the fire needs to be extinguished. If it is small, pat out or smother it, or remove the burning material from the patient.[2] For large fires on the patient, stop the flow of breathing gases to the patient, and remove the burning material from the patient. At times, a fire extinguisher may be needed. Next, care for the patient by resuming ventilation, controlling bleeding, evacuating from the room if there is ongoing danger from smoke or fire, examining the patient for injuries, and treating as needed. If the fire cannot quickly be controlled, notify other operating room staff and the fire department. Save all involved materials and devices for later investigation. Contact the risk manager of the facility, as well as OMIC’s Risk Management Department, for assistance in discussing the fire with the patient and in determining reporting obligations.
1. Recommendations are from “Only You Can Prevent Surgical Fires: Surgical Team Communication is Essential.” ECRI. This free poster is available at ecri.org.
To order in color or to obtain more information about surgical fires, contact ECRI at 1-(610) 825-6000.
2. Recommendations are from “Surgical Fires,” Operating Room Risk Management, ECRI, 2004.
Access to an EHR System While On-Call
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Winter 2012
A policyholder called today to get input on a difference of opinion in his group. The group has implemented an EHR system. One of the partners, who is an early and enthusiastic adaptor of technology, feels that ophthalmologists must access the EHR when handling after-hour calls for the group. Another physician, less technologically-inclined, is reluctant to carry a computer at all times and take on additional work if it is not necessary.
Q Am I legally required to access the EHR when speaking to a patient after-hours? Does OMIC require this?
A No. OMIC is not aware of any laws or regulations that make such access mandatory, and we have no underwriting requirements related to electronic records.
Q Do all members of the call group have to agree on whether or not to access the records?
A Patient safety studies have shown the value of a standardized approach in reducing the incidence of errors and improving communication. As in other areas of practice administration, such as appointment scheduling, prescription refills, noncompliance and billing, it is easier for staff if all physicians in a group handle issues in a similar fashion. Once the group reaches consensus, it would be helpful to develop a written protocol and train staff members in it. Policies need to be realistic and reflect goals that can be consistently reached. Such written protocols protect physicians from inadvertent criticism from their colleagues and staff if there are unexpected patient outcomes.
Q What are the risks if I don’t access records?
A During telephone conversations, the health care team does not have access to the wealth of information obtained from face-to-face communication and a physical examination of the patient. Moreover, the patient may be a poor historian who does not know how to communicate what the problem is, or may not want to inconvenience the physician or appear to be whining or complaining. This situation is even more problematic after-hours, when the patient may be unknown to the ophthalmologist and medical records may not be available at the time of the telephone encounter. Making medical decisions on the basis of the limited information obtained over the telephone is, therefore, a risky—albeit necessary—aspect of ophthalmic practice. Indeed, OMIC claims experience confirms that inadequate telephone screening, improper decision-making, and lack of documentation all play a significant role in ophthalmic malpractice claims. Negligent telephone screening and treatment of postoperative patients is especially likely to result in malpractice claims. By reviewing the record, you may find information key to the diagnosis or management of the patient, such as a patient’s allergy, test results, medication record, or history of recent surgeries. Without such information, you may inadvertently prescribe a contraindicated medication, or determine that urgent care is not needed. If the patient is harmed and sues, he or she may allege that failure to consult the record was negligent. As more and more physicians implement EHR systems, pressure may grow to access records after-hours, even though this care is generally not reimbursed by insurance companies.
Q What else can I do to reduce the risk of telephone care?
A First and foremost, exercise the same care when treating a patient by phone as you would during an office visit. To promote both continuity and defensibility of care: (1) gather the information necessary to assess the situation and determine the treatment plan, (2) communicate the assessment and plan to the patient, and (3) document the encounter and your decision-making process in the medical record as soon as possible after the conversation, by the next business day at least.
Q Can’t I just get the information from the patient?
A You may be able to if you ask enough questions and have a patient who can reliably answer them. At other times, you may have to make a decision with limited or inaccurate information. In the absence of records, OMIC recommends using an after-hours contact log that prompts you to ask detailed questions about the current complaint and prior care. The form also serves to document the conversation and can be faxed to the patient’s regular physician to promote continuity of care.
Q If I do access the record, how thoroughly do I need to review it?
A There is no easy answer. You face a similar situation when you take over care from another physician, or see a partner’s patients in the office. The standard to which you will be held is that of a reasonably prudent physician. Obviously, you will not have time to review the entire record. At a minimum, you would want to check allergies, medication history, and recent procedures. Reading notes from the latest visits or phone calls might help you determine if the patient’s condition is changing or worsening. Document which records you reviewed in order to assess the patient. To facilitate after-hours call, it would help if the record contained a front sheet with key information.
