1. Critical Communication Improving patient communication, follow-up and documentation to enhance care and reduce legal risk Peter I. Bergé, JD, PA Counsellor at Law Bendit Weinstock West Orange, NJ

2. What I do Represent patients who were injured by the negligence of healthcare providers Teach PAs, PA students and others how to avoid having their charts show up on my desk Volunteer for the Medical Reserve Corps in New York City A tiny bit of patient care

3. The Problem Communication is at the root of many medical malpractice lawsuits, adverse outcomes, and patient complaints Many of those lawsuits and complaints are justified Many (not all) communication problems can be prevented by improved practices

4. The Problem “RTC if sx worsen”

5. The Problem “Come back right away if you get worse”

6. Communication Begins with listening History taking – The ultimate history taking example Assessment – Example

7. Communication Assessment example – Fresh post-op patient in medical ICU – s/p urgent cervical spinal decompression – Received 0.2 mg Dilaudid in OR – Awake and talking en route to ICU, denies pain – Awake and talking in ICU – Begins biting oxygen mask – Nurse administers morphine SO4 2 mg IV and leaves room

8. Communication Assessment example – A few minutes later notices bradycardia, desaturation – Bradyasystolic arrest ensues

9. Communication Assessment example – What communication was missing? – Why? – What was the consequence?

10. Communication and Medical Malpractice Medical malpractice = negligence Elements of negligence – Duty: to exercise due care and diligence – Breach of that duty – Injury (physical, psychological, economic) – Causation

11. Medical Malpractice Duty: to exercise due care and diligence (adhere to the standard of care). Breach of duty: deviation/departure from the standard of care Injury (harm) Causation (Damages)

12. Medical Malpractice Duty: A PA will be held to a standard of care, skill and intelligence which ordinarily characterizes the profession. The standard is not what the average practitioner would have done but what a reasonable practitioner should have done given reasonable alternatives. (emphasis added) * *Estate of Elkerson v. North Jersey Blood Center, 342 N.J. Super. 219, 230 (App. Div. 2001)

13. Medical Malpractice Breach – Deviation from the standard of care [advisory*] Failure to obtain informed consent Failure to properly communicate a diagnosis Failure to properly communicate results of a diagnostic procedure *deviation is usually determined by the jury after hearing expert testimony

14. Medical Malpractice Breach – Deviation from the standard of care * Failure to follow up on diagnostic procedure ordered Failure to follow up on diagnostic procedure performed Failure to follow up on a missed appointment Failure to properly instruct patient on follow-up *usually determined by the jury

15. Medical Malpractice Attorney’s analysis (plaintiff or defense) – Deviation from standard of care? (breach of duty) – Injury? (harm) – Causation? – Damages Why is this important during initial analysis?

16. Case 1 2006: 50-year-old diabetic female steps on nail through sneaker; soaks foot for two days, then goes to ED c/o pain in foot radiating up leg Pulse 100/min 1 cm white circle surrounding puncture, not fluctuant Blood sugar over 300 WBC just slightly above lab’s ULN

17. Case 1 Plain film negative for FB. Swelling seen in area of metatarsal head. Given levofloxacin and pain medication Sent home with dx. of “foot wound” Instructions: make appointment in medical clinic; return to work 1-2 d. Fluoroquinolone information sheet: medication may take seven days to work, in some conditions, several weeks

18. Case 1 Anything missing here?

19. Case 1 Develops pain, swelling, redness in 24 hours Waits a few days for antibiotics to work (per instructions) Swelling starts going up leg, pain is excruciating Goes to ED Admitted

20. Case 1 Transmetatarsal amputation of two toes Acute and ongoing psychiatric treatment Cannot exercise/depressed  – DM out of control  Acceleration of DM sequellae, including non- healing ulcer – 6 months daily hyperbaric therapy and multiple admissions

21. Case 1 Deviations related to communication?

22. Case 1 Injury? Causation? Damages? Outcome?

23. Case 1 - Lessons Follow-up instructions must be individualized Take into account the worst case scenario Don’t leave room for claim that “they never told me” If you don’t chart it, you didn’t do it

24. Case 1 – Lessons Why does it matter? – Case 1 with proper discharge instructions?

25. Case 2 48-year-old female sees PCP for abdominal pains PCP orders abdominal ultrasound Patient goes for U/S Insurance changes and patient changes providers Calls for results: “we would call you if there was a problem, so it’s okay.”

26. Case 2 One year later, increasing abdominal complaints Abdominal CT: large tumor in colon One large and multiple small metastases to liver Requires surgeries to resect colon, liver Chemotherapy

27. Case 2 Discovers original ultrasound results in hospital records: mass in liver, must consider malignancy Only one liver lesion; probably 1/5 mass Eventually achieves remission with combined surgery and chemotherapy Likelihood of 5 year survival decreased by 80% due to growth of tumor and metastases

28. Case 2 - Analysis Deviation from SOC (breach)? Injury? Causation? Damages?

29. Case 2 - Analysis Damages Outcome:

30. Case 2 - Lessons Have concrete, consistent, reproducible system for – Tracking tests ordered – Following up on results – Contacting patients with results – Documenting all of the above Attempts to reach patients should be proportionate to the potential harm to the patient Documentation should also be proportionate to potential harm to patient and to controversy

31. Case 3 48 y/o woman sent to surgeon for mass in left axilla Surgeon sends her to pathologist for FNA of lymph node Path report: malignant cells consistent with breast carcinoma metastatic to lymph node

32. Case 3 MRI: abnormal cluster of calcifications suspicious for cancer in light of positive FNA Surgeon to patient: you have breast cancer. We must remove your breast or you will die.

33. Case 3 In OR, surgeon sends a tissue sample from area where the MRI abnormality was probably located No tumor found Performs mastectomy

34. Case 3 Deviations? – Pathologist? – Surgeon?

35. Case 3 What is INFORMED CONSENT?

36. Informed Consent What must be included? Can a clinician express a preference? What if the patient doesn’t want what you want? What if the patient is unreasonable?

37. Informed consent What is the role of “consent forms” in obtaining informed consent? What is the role of charting? Who can obtain informed consent? Who is responsible for assuring that informed consent was given?

38. Informed Consent When is informed consent required? Why?

39. Take home lessons Tests ordered, tests done must be followed up consistently; document Never tell patient, “we won’t call you unless there is a problem”. Follow up must be affirmative, i.e. patient should expect/receive a positive or negative result

40. Take home lessons Follow-up instructions to patients must be – Clear, appropriate to problem and patient – Well documented – Oral and in writing where practical – Cover contingencies, e.g. – Call if, come back if, to ED if, 911 if… – Specific times (not 48-72) – Specific events (pain, fever, redness, swelling. streaking...)

41. Take home lessons Follow up procedures for missed tests or appointments: – The more important, the more you document – The more important, the more you do Telephone calls (well-documented) Letters (CM-RRR? FedEx?) Call emergency contacts? Write to other providers?

42. Take home lessons OTHER COMMUNICATION POINTS Tell patient what your concern is – Cancer, losing pregnancy, bleeding, etc. – Use the words and document that you did (do not leave room for patient to say that you didn’t tell her how serious it was) – Follow-up instructions need to be clear, detailed and individualized

43. Take home lessons OTHER COMMUNICATION POINTS Use language that patient understands (English or otherwise) – no jargon! Be aware of the cultural context of your patient populations Can your patient read?

44. Examples – Standardized follow-up instructions Include catch-all instructions – Call office if any problems with medications – Call if not improving in 72 hours or if worse at any time – To hospital if unable to drink liquids or keep liquids down; if light-headed; very high fever despite medication; or other severe problem and unable to reach provider quickly

45. Examples – Standardized follow-up instructions Include catch-all instructions – Call office if any problems with medications – Call 911 for chest pain, difficulty breathing, passing out, severe bleeding or when in doubt about seriousness of emergency

46. Examples – Standardized follow-up instructions Disease-specific instructions – Infections » Return if not improving in __ hours » Return or go to ER if high fever, severe pain, greatly increasing swelling, red streaking from area or if otherwise getting worse – Asthma » Return if…. to ED if… call 911 if… – URI – UTI

47. Solutions Missed appointments – Low tech: pull the chart, act, document – High tech: computerized follow-up, tickler, reminders, and letter generator

48. Solutions Diagnostic studies – Low tech: appointment for all studies In person if high risk, separate list if low risk – Low tech: log all studies ordered, staff checks off with provider input – High tech: computerized ordering, follow-up and reminder

49. Solutions Patient follow up and care instructions – Low tech: hand write, document in chart – Low tech: write up instructions, index and number, document number or title in chart – Low tech: copy handouts from journals or internet, document as above – High tech: Mosby, MD Consult, and others – standardized handouts, document in chart Circle and underline, document

50. Solutions Think of “informed consent” as a process that is critically important to quality patient care, not as a piece of paper See involving patients in decisions regarding their care as a step toward improving the quality of the care that you provide Document the consent process as you would (should) document any important procedure

51. Thank You Please complete evaluations Peter I. Bergé, JD, PA pberge.atty@yahoo.com