2. 1 Montana Dental Association Medical-Legal Issues Larry E. Riley, JD A. Craig Eddy, MD, JD, FACS 4/30/2010 This presentation will probably involve audience discussion, which will create action items. Use PowerPoint to keep track of these action items during your presentation In Slide Show, click on the right mouse button Select “Meeting Minder” Select the “Action Items” tab Type in action items as they come up Click OK to dismiss this box This will automatically create an Action Item slide at the end of your presentation with your points entered. garlington|lohn|robinson (406) 523-2500 aceddy@garlington.com leriley@garlington.com

3. 2 Type of Suits or Issues Medical Office Might See Employee / HR Suits Wrongful Discharge from Employment Act Employment Discrimination Malpractice Regulatory Issues Montana Board of Dentistry Slip and Fall / General Liability

4. 3 Ounce of Prevention Best Insurance is not for Sale Communication with patient and staff Rapport Listening Attitude Not Rude and Rushing Good Charting - Medical and HR

5. 4 They will remember how you made them feel They may not remember what you said

6. 5 Human Resources - For Office Practices Montana is Employee Friendly –Employer Unfriendly It is not an employment at will state –After Probationary period can only fire for good cause Employment cases are very expensive

7. 6 Prevention - HR Good Office Policies –Make sure handbook is available –Follow your policies Under WDEA – otherwise lawful termination is wrongful if you don’t follow your own policies on discharge and termination Good Communication Fair and Even Handed Address Workplace Issues Promptly –Hostile work environment –Harassment – gender and otherwise Use Checklists –Termination –Discipline

8. 7 Job Descriptions Business reason why the job exists Qualifications Primary duties/essential functions Review on an annual basis Use as measuring stick for annual evaluations Exempt or Non-exempt Probationary period - 6 months

9. 8 Employee Policies No Discrimination/Harassment Grievance Procedure Workweek defined Payment of final wages: next payroll day or within 2 weeks of last day, whichever is sooner No expectation of employee personal privacy when using practice computers/phone/fax Acknowledgement of Understanding Ability to extend probationary period if necessary

10. 9 Wage and Hour Issues Wage and Hour / FLSA Exempt—Administrative, Executive, Professional (with special rules for IT employees)| Employee v. Independent Contractor

11. 10 Wrongful Discharge What Constitutes a Wrongful Discharge? –Discharging an employee for refusing to violate public policy or in retaliation for reporting a violation of public policy –Discharging an employee without good cause –Discharging an employee in violation of the employer’s written personnel policies What Constitutes a Legitimate Discharge? –Legitimate economic reasons –Disciplinary / Performance concerns –During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason

12. 11 Wrongful Discharge Damages Up to 4 years lost wages & fringe benefits + interest, calculated from the date of discharge Fringe benefits –Employer-paid vacation leave & sick pay –Medical insurance –Disability & life insurance benefits –Any pension plan pay Award is discretionary NO emotional distress, pain & suffering, or other compensatory damages Employee has a statutory duty to mitigate his or her damages –Employee’s earnings or earnings an employee could have made may be deducted IF employee was discharged for refusing to violate public policy or in retaliation for reporting a violation of public policy – the employee may seek punitive damages.

13. 12 Discrimination: 1. The act of discriminating. 2. The power to recognize or draw fine distinctions. 3. Treatment or consideration based on class or category rather than individual merit; partiality or prejudice. Am. Heritage College Dictionary (3d ed. 1997)

14. 13 Why should employers be concerned about discrimination? Exposure to liability –Damages for front pay and back pay –Damages for emotional stress –Punitive damages (federal claims only) –Attorney’s fees –Transaction costs high Bad Publicity Lost Productivity

15. 14 THE PROTECTED CLASS DISABILITY RACE/ COLOR NATIONAL ORIGIN/ CITIZENSHIP RELIGION/ CREED AGEGENDER

16. 15 How does discrimination occur? DISPARATE TREATMENT DISPARATE IMPACT FAILURE TO ACCOMMODATE RETALIATION

17. 16 Age Discrimination Age Discrimination in Employment Act 1967 40 years or older The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Employers are permitted to coordinate retiree health benefit plans with eligibility for Medicare or a comparable state-sponsored health benefit.

18. 17 What constitutes Sexual Harassment? Unwelcome sexual advances, requests for sexual favors and other verbal or physical contact of a sexual nature constitutes sexual harassment when: it is a condition of employment; it is a consequence of employment; or it is an offensive job interference.

19. 18 HARASSMENT FACTS The victim or harasser may be a man or a woman and does not have to be of the opposite sex (or a different protected status) The harasser may be a supervisor, a co-worker or even a non-employee. The victim does not have to be the person harassed, but could be anyone affected by the conduct. | Actionable harassment may occur without economic injury. The harasser’s conduct must be unwelcome to the victim.

20. 19 When is the employer liable for discriminatory harassment? Was conduct based on a protected status? Was conduct objectionable to the victim? Was conduct severe or pervasive? HARASSER ACTED AS AGENT FOR EMPLOYER = LIABILITY

21. 20 AGENCY LIABILITY For actionable harassment, there is no liability if: The employer exercised reasonable care in preventing the harassment The employee failed to take advantage of corrective opportunities. For actionable harassment, there is no liability if:

22. Reasonable Care = Make it clear that discrimination or harassment is not tolerated. Define prohibited conduct broadly/ plainly. Simple and direct complaint procedure- include alternative complaint paths. Measures that instill confidence and candor. Make it flexible. Enforce it!!!! ANTI-HARASSMENT POLICY

23. 22 HANDLING SEXUAL HARASSMENT COMPLAINTS Remember: You must have “good cause” to terminate a non-probationary employee! Do a reasonable investigation- Document! Take proportionate action, but don’t make promises you can’t keep. Involve the alleged harasser and victim. Follow your Anti-harassment Policy.

24. 23 SIMPLE TIPS FOR AVOIDING HARASSMENT CLAIMS Do a thorough job hiring employees. Think before you hit the “send” key. Separate “work” and “play” Avoid idle time. Create a positive work environment.

25. 24 Malpractice Issues

26. 25 General principles of liability Good News –Non-physicians have minimal personal risk Generally Employees –Respondeat Superior Captain of the Ship Doctrine –Now somewhat in question Deeper Pockets Available Generally have good family relationships Bad News –Ticket to deep pockets of hospital –Captain of Ship Doctrine Eroding

27. 26 General principles of liability Duty: Arises in 4 main ways –Common Law –Legislation –Regulatory (CMS, JCAHO) –Hospital and Nursing Policy Breach (Negligence) Causation (Connects Breach and Damages) Damages

28. 27 Duty, Breach, Causation, Damages Plaintiff has Burden of Proof Preponderance of Evidence All Elements must be proved

29. 28 Montana Medical-Legal Process Filed and Heard by Medical Legal Panel Filed State or Federal District Court Discovery Expert Witnesses Mediation Trial

30. 29 Truth – Facts – Justice Illusive - Not Black and White People see, perceive and remember the same event differently

31. 30 Potential Problems Causing Litigation Criticizing other health care providers Altered Records Different people have different perceptions Dentistry is not an exact science Dentistry constantly improving (changing) Jury’s view – through the retrospectoscope What is reasonable in an unusual event? Battle of Experts Watch out for the “ordinary” task –The kind you do without thinking

32. 31 Other Issues What is a “bad outcome”? –Unrealistic Expectations Miracle outcomes Television Society Sympathetic Patient Undesirable Nurse or Doctor

33. 32 Dental Malpractice Claims Will Always Exist To err is human Bad Providers Unpredictable events Catastrophic Outcomes Interpretation of Standard of Care Provider Impairment Systems Fail Money involved

34. 33 Points of View in a Malpractice Claim Patient Incident report Dentist Peer Review Administration Insurance Company Plaintiff Lawyer Defense Lawyer Experts Med Mal Panel Members (6) Judge Jury (12) Supreme Court Board of Dentistry Criminal Investigator

35. 34 Medical Record Introduction

36. 35 Medical Record Your Best Friend or Worst Enemy Technical definition Written evidence of: –The interactions between and among health care professionals, patients, their families, and health care organizations. –The administration of tests, procedures, treatments, and patient education. –The results of, or patient’s response to, diagnostic tests and interventions

37. 36 Medical Record Purpose Accountability Communication to other providers –Sequential picture of patient Memory of facts – 5-10 years later Research Satisfaction of Legal and Practice standards Reimbursement Education

38. 37 How Bad Charting Hurts What poor documentation allows the plaintiff to do –Your word against theirs –Patient Recall Generally Poor They can confabulate, you cannot refute –Duke Study in 2003 –Australia Study in Radiology 2003 –If they have had any poor result jury may be sympathetic

39. 38 How Good Charting Helps Never any question of facts or times Demonstrates to jury –Expertness –Trustworthiness –Professionalism

40. 39 Elements of Effective Documentation Medical Record Mandatories Use a common vocabulary. Write legibly and neatly. Use only authorized abbreviations and symbols. Employ factual and time-sequenced organization. Document precisely, accurately and completely, including any errors. Dated and Timed Explain Late Entries Objective and without editorials Unaltered

41. 40 What if Medical Record Incomplete?? 3 File Drawers of Information –What is Written Down –What You Actually Remember –Usual Custom or Practice

42. 41 Medical Record Pitfalls

43. 42 Medical Record Pitfalls Non-Standard Abbreviations Erasures, Overwrites or Whiteouts Unexplained Late Entries Ink that does not photocopy Negative Editorial Comments

44. 43 Example of a Poor Medical Record

45. 44 Example of a Poor Medical Record

46. 45 Example of a Poor Medical Record

47. 46 Electronic Medical Record Pointers –Don’t depend on drop down menus Use the comment section liberally –Be sure to have somewhere to scan or somehow capture extra pieces of paper –Be sure to justify late documentation

48. 47 Lawsuit Triggers Providers who are sued the most –Rude –Rushing –Failed to answer questions Providers sued the least –Concerned –Accessible –Willing to communicate

49. 48 Apology and Montana Law The Montana law Understanding the difference between an expression sympathy and an apology. An effective and well done apology is powerful medicine. The lack of an apology generates incredible anger.

50. 49 What to do in case of Lawsuit House of God: Take your own pulse first Get Help –Talk to your employer immediately Seek good counsel –You are out of your element Do not admit anything immediately Never talk alone Don’t sign anything

51. 50 Requests from the Audience Patient Dismissal What to do in a Medical Emergency

52. 51 Questions?

53. 52 Conclusion The Hard Things in Life The Trauma of Being Sued Options if you don’t like something –Change the thing –Change your attitude Happiness –Belong to people –Accept pain –Know you make a difference –Don’t pursue happiness: do the things that create it

54. 53 Conclusion Joy comes from our inside and its ours if we have the will to find it Tragedy is a human legacy Joy is a human creation Leon Uris Life is mostly froth and bubble but two things stand like stone Kindness in another’s trouble Courage in your own –Adam Landsay Gordon

55. 54 Three Poems to Share People Who Take Care Hippocrates Child