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Kevin M. Klauer, DO, EJD, FACEP Chief Medical Officer, EMP, Ltd. Assistant Clinical Professor, MSU-COM Editor-in-Chief, Emergency Physicians Monthly Professional.

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Presentation on theme: "Kevin M. Klauer, DO, EJD, FACEP Chief Medical Officer, EMP, Ltd. Assistant Clinical Professor, MSU-COM Editor-in-Chief, Emergency Physicians Monthly Professional."— Presentation transcript:

1 Kevin M. Klauer, DO, EJD, FACEP Chief Medical Officer, EMP, Ltd. Assistant Clinical Professor, MSU-COM Editor-in-Chief, Emergency Physicians Monthly Professional Liability Landmines 2013

2 The Current Malpractice Climate Claims Frequency 1/25,000 ED visits Indemnity –2002: $80,000 –2009: $162,000 CDC Ambulatory Care Study –117 million ED visits in 2007 –94.9 million in ASHRM Hospital Professional Liability Benchmark Analysis Future claim severity expected to increase 4% annually Bouncebacks? 30 Yrs 135,000 Pts 17

3 The Current Malpractice Climate PIAA: 11,529 EM Claims/$664 Million 18% No medical error could be identified Negligent Adverse Events: 37% of Paid Claims –South Med J Nov;98(11): ,345 Primary care claims –23% Negligent –68% in outpatient settings –Qual Saf Health Care Apr;13(2):121-6

4 The Genesis of Risk Unhappy Patients Bad Outcomes +

5 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

6 Crowding & Boarding

7 Joint Commission. Sentinel Event Alert, June 17, 2002; cs cs 50% of sentinel events occur in the ED 1/3 rd are related to crowding

8 THE ASSOCIATION BETWEEN EMERGENCY DEPARTMENT CROWDING AND ADVERSE CARDIOVASCULAR OUTCOMES IN PATIENTS WITH CHEST PAIN Pines, J.M., et al, Acad Emerg Med 16(7):617, July ,424 Adults possible ACS ACS: 18% Death, Cardiac Arrest, Delayed AMI, CHF, Dysrhythmias, HYN 12% in ACS and 4% of others ED Crowding ACS Group: Lowest qrtile to Highest: OR (adverse event) Occupancy: 3.1; WR #: 3.7; Pt Care Hrs: 5.2

9 Effect of Emergency Department Crowding on Outcomes of Admitted Patients Benjamin C. Sun, Renee Y. Hsia, Robert E. Weiss, David Zingmond, Li-Jung Liang, Weijuan Han, Heather McCreath, Steven M. Asch. Annals of emergency medicine 10 December ,379 ED visits resulting in admission to 187 hospitals 5% greater odds of inpatient death 1% increased costs per admission 300 inpatient deaths 6,200 hospital days $17 million

10 INCREASE IN PATIENT MORTALITY AT 10 DAYS ASSOCIATED WITH EMERGENCY DEPARTMENT OVERCROWDING Richardson, D.B., Med J Australia 184(5):213, March 6, shifts with ED overcrowding v. Non crowded shifts Poor performance of standard performance measures 10-Day mortality: 0.42% v. 0.31% THE ASSOCIATION BETWEEN HOSPITAL OVERCROWDING AND MORTALITY AMONG PATIENTS ADMITTED VIA WESTERN AUSTRALIAN EMERGENCY DEPARTMENTS Sprivulis, P.C., et al, Med J Australia 184(5):208, March 6, ,495 Pts: ED Admissions to 3 tertiary facilities Adjustment for confounders 7-Day mortality: Occupancy 90-99%: Hazard Ratio: 1.2; Higher occupancy: 1.3 Deaths at 30 days: Due to overcrowding: 2.3 per 1,000 hospital admissions

11 Cases $3.58 Million Judgment for ER Delay That Resulted in Death of 12-year-old Boy 7:00 7:30 8:15 “The infant girl presented to the hospital with clear signs and symptoms of Streptococcus A, a bacterial infection that had invaded her blood and organs, persistent fever, skin discoloration and weakness. Emergency room physicians kept the infant waiting 5+ hours”

12 LIABILITY EXPOSURE ED Attending: Liable for Bad Outcome, or Not? August ED Legal Letter;Aug2012, Vol. 23 Issue 8, p90

13 Recommendations All emergencies are addressed by the EP EP should be notified of change in status –Vital signs Periodic reassessments performed with documentation provided

14 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

15 EMRs & Technology

16 Medical Malpractice Liability in the Age of Electronic Health Records. N Engl J Med 363;21. November 18, 2010 Early –Inadequate training –Documentation gaps –EHR bugs and failures Mid –Metadata creates more discoverable events –Cut and paste histories –Information overload –Ignoring decision support Long term –Failure to use may = breach in SOC –Widespread decision support may result in false SOC

17 March 5, 2012 Defense attorney Catherine J. Flynn e-Discovery $50,000 Modification allegations

18 Case Presentation CC: Passed out/fever HPI: 33 year-old male, no previous medical history, c/o sudden-onset headache today. –He has been having fevers as high as 100. –He had 2 episodes of syncope today. –No nausea or vomiting. –He has had some chest congestion with cough. MEDS: Percocet ALL: Cephalosporins; Levaquin SH: Smokes tobacco. Denies drugs. Occasional EtOH.

19 Physical Exam GENERAL: Well-appearing male, appears to be in pain. VS: T 98.1º, HR 81, BP 123/77, RR 14, SaO 2 97% on RA HEENT: NC/AT. PERRL. EOMI. Mucous membranes moist. NECK: Supple. No meningismus or meningeal signs. No JVD, no LAN. HEART: RRR, no murmurs LUNGS: Clear to auscultation bilaterally. ABD: Soft, nontender, nondistended. Normal active BS. EXT: Thin, good peripheral pulses. No edema. NEURO: Alert and oriented x3. No deficits on exam.

20 ED Timeline  11:13 Arrives by private vehicle  13:28 Seen by EM resident  13:59 Attending EM physician signs up on computerized tracking system  14:49 Ketorolac 30mg IV administered  16:24 LP completed  18:26 Morphine 5mg IV; Vancomycin 1gm IV administered (after LP results)

21 Diagnostics  WBC 12.9, 84% neutrophils  CT Head: Normal  Lumbar puncture: CSF clear & colorless  Tube # WBC / 650 RBC  Tube # WBC / 41 RBC

22 ED Course  20:08 Ceftriaxone 2gm IV administered (ordered by EM attending)  RN calls EM physician (elsewhere in a large ED)  Reports patient c/o hand pruritis / flushed skin  Physician gives verbal order via cell phone to D/C ceftriaxone infusion  20:18 Benadryl 50mg IV

23 ED Course RN calls EM physician a 2nd time due to pt c/o SOB  Per RN, ‘ Pt gasping, audibly wheezing, drooling, with edema of face, lips, tongue, arms ’

24 ED Course RN calls EM physician a 2nd time due to pt c/o SOB  Per RN, ‘ Pt gasping, audibly wheezing, drooling, with edema of face, lips, tongue, arms ’  Epinephrine 0.3mg 1:10,000 IV x2 doses  Solumedrol 125mg IV  Pepcid 20mg IV

25 ED Course RN calls EM physician a 2nd time due to pt c/o SOB  Per RN, ‘ Pt gasping, audibly wheezing, drooling, with edema of face, lips, tongue, arms ’  Epinephrine 0.3mg 1:10,000 IV x2 doses  Solumedrol 125mg IV  Pepcid 20mg IV  Pt intubated with adjunct use of bougie

26 One Little Detail: On subsequent review, it is discovered that the same physician ordered IV ceftriaxone for a pt with a cephalosporin allergy 6 months earlier In a bizarre coincidence, it also happened to be the exact same patient, who had developed urticaria and mild wheezing during that previous encounter

27 Case Presentation 44 yo male with a groin rash –DX as tinea cruris –Developed a horrible excoriating rash after starting his “antifungal” cream ED doc wanted to prescribe fluconazole, but inadvertently prescribed fluorouracil (5-FU) $20,000

28 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

29 Scribes

30 Scribe Update FAQs, regarding scribes, published by The Joint Commission on July 12, “Scribed for Dr. X by name of the scribe and title” with the date and time of the entry. “scribed” entries-- the physician or practitioner must actually sign or authenticate through the clinical information system. The authentication must take place before the physician or practitioner and scribe leave the patient care area Scribes cannot perform CPOE

31 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

32 APP Supervision

33 Coding & Billing “Incident to”? Not in the ED “Split/Shared Visit” Allowed in the ED “Face to Face”?  Demonstrate that the physician personally saw the patient face-to- face and participated in the management of the patient.  Not be limited to a physician’s co-signature of the NPP’s note or additions to the NPP’s note.  Not simply indicate that the physician reviewed and/or discussed the case with the NPP. *Coding for a shared visit may be based on the information recorded in the combined notes of the non-physician and the physician.

34 Coding & Billing No “Face to Face”? The service may only be billed for under the NP/PA’s provider number. Critical care services are not covered under the “Shared services” rule. Qualified NPPs may provide critical care services (and report for payment under their National Provider Identifier (NPI)), when these services meet the above critical care services definition and requirements. (trans 1548)

35 Smoke & Mirrors? 100% v. 85% PFS? Does signing the charts meet the requirements? Does billing 85% remove physician liability?

36 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

37 Pain and EMTALA

38 Am J Emerg Med May, 2007 –Patient identification –Letters to patients and their primary care physicians regarding frequent ED visits and opioid rescue –Non-narcotics used in subsequent visits –Primary care follow up for alternatives suggested Decrease in ED and Primary care visits “Chronic pain program”

39 Chronic Pain South Carolina Hospital Association Our Emergency Department staff understands that pain relief is important when one is hurt or needs emergency care. But………………….

40 The primary role of the Emergency Medicine provider is to look for and treat an emergency medical condition. You may be asked about a history of pain medication use, misuse, or substance abuse before prescribing any pain medication.

41 We may ask you to show a photo ID, such as a driver’s license, when you check into the Emergency Department or receive a prescription for pain medications. We may also research the statewide prescription data base regarding your prescription drug use. We may only provide enough pain medication to last until you can contact your doctor. We will prescribe pain medications with a lower risk of addiction and/or overdose when possible.

42 For your safety, we do not: – Give pain medication shots for sudden increases in chronic pain, or aggravation of chronic pain syndromes. – Refill lost or stolen prescriptions for medications. You must obtain refill prescriptions from your primary care provider or pain clinician. – Prescribe missed methadone doses, or provide prescription refills for chronic pain management. – Prescribe long-acting pain medications, such as OxyContin, MSContin, fentanyl patches, or methadone for chronic, non-cancer pain. – Prescribe pain medications if you already receive pain medication from another doctor or emergency department.

43 CMS Response

44 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

45 Safe Harbors for Quality?

46

47

48 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

49 Insurance Trends July 15, 2012 “Malpractice insurance is a lawsuit magnet” –Unnamed hospital CEO in NYC Reduced Judgments Can result in financial catastrophe

50 $1 mill/$3 mill $2 mill/$6 mill Perceived imbalance in financial exposure Projected premiums: 30%-40% Increased cost of care CMA: Avg. Indemnity $200,000 Settlements/Judgments > $1,000,000

51 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

52 tPA and Consent Standard of Care Doctrine of Informed Consent

53

54 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

55 Apology Laws

56 LIABILITY CLAIMS AND COSTS BEFORE AND AFTER IMPLEMENTATION OF A MEDICAL ERROR DISCLOSURE PROGRAM Kachalia, A., et al, Ann Intern Med 153(4):213, August 17, 2010 University of Michigan Full disclosure of medical error Offers for compensation Claims/yr: Claims resulting in lawsuit/yr: Avg Cost: from $405,921 to $228,308

57

58 Apology Laws Per the AMA: 35 states in 2012 Those without: Alabama, Alaska, Arkansas, Illinois, Kansas, Kentucky, Mississippi, Nevada, New Jersey, New Mexico, New York, Pennsylvania and Rhode Island Dresser R. The Limits of Apology Laws; Hastings Center Report, Volume 38, Number 3, May-June 2008 pp. 6-7 –Limited Protection

59 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

60 Medicaid Recovery October 8, 2012 –Wos v. E.M.A. –NC: Lien on settlements of 1/3 rd –Disproportionately high when the medical expenses are < 1/3 rd. –NC victory = Chilling effect on lawsuits March 20, 2013 –SCOTUS: Affirmed 4 th Circuit Courts Holding –Medicaid Act Preempts State Statutes –Case by case basis: Expenses only

61 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

62 Loss of Chance Doctrine Probabilistic Cause An alternative to traditional causation in seriously ill patients Hawaii: 1972 Approximately 50% of states If < 50% chance or survival or improvement –Recovery rare

63 Chilling New Ways Patients Are Suing Doctors. Anthony Francis, MD, JD; March 29, Medscape.com 2008: Mass: Matsuyama v. Birnbaum –37.5% Chance – (1) “the full amount of damages allowable for the injury,” without any probabilistic offset; – (2) the probability of survival before the medical malpractice; – (3) the probability of survival after the medical malpractice; – (4) the difference in probabilities between steps (2) and (3); and – (5) the product of the difference in probabilities (4) and the full amount of damages (1).

64 Civil Rights Violations: “Failure to Accommodate” Does not require the burden of expert testimony –Probable medical negligence

65 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

66 INTERRUPTIONS

67 ED Interruptions Chisholm CD, Collison EK, Nelson DR, Cordell WH. Emergency department workplace interruptions: are emergency physicians "interrupt-driven" and "multitasking"? Acad Emerg Med Nov;7(11): Three EDs: Urban teaching, Suburban teaching, Rural Investigator followed EPs for 180 minute periods Tasks Interruptions: …event that briefly required the attention of the subject but did not result in switching to a new task Breaks in Task: …an event that required the attention of the physician for more than 10 seconds and subsequently resulted in changing tasks. Mean # of Interruptions: 30.9 Mean # of Breaks in task: 20.7

68 Jeanmonod R, Boyd M, Loewenthal M, Triner W. The nature of emergency department interruptions and their impact on patient satisfaction. Emerg Med J May;27(5): Observation: 4 hour blocks of time If in the primary patient interaction, Pt satisfaction assessed (1-10) 53%: While reviewing data 50%: While charting 26%: Bedside interruptions 60%: By other providers Negative Impact on Patient Satisfaction

69 Case Presentation 48 year old white female CC: Left upper back pain HPI: 3 hours, acute onset, non- reproducible to palpation but slightly worsened by ROM Assoc: Pleuritic PSHx: No ETOH, ½ ppd Tobacco history

70 Case Presentation CBC, Urinalysis, BMP, Troponin I negative ECG SR without ectopy or ischemic changes CT Pulmonary angiogram: Negative

71 Case Presentation Disposition Discharged 3-5 Day follow up Rx: Ibuprofen and Vicodin

72

73 Case Presentation Died 26 hours after discharge

74 Case Presentation Claim Filed Combined Settlement on behalf of the physician & hospital

75 Top 10 Professional Liability Landmines 2013 Boarding &Crowding EMRs Scribes Pain and EMTALA Insurance trends Safe Harbors for QualitySafe Harbors for Quality tPA and consent Apology laws Medicaid repayments Loss of Chance Interruptions APP Supervision summary

76 Remember! When Your Day Seems Bad? It Could Always Be Worse!

77 Thank you!


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