pathways and opportunities for advancing ... - health sciencesmedical and legal professions ....

Pathways and Opportunities for Advancing the Medical and Legal Professions

Through Addressing Mandatory Reporting, Disclosure of Protected Health Information, and Best Practices in Communication

June 18, 2018

Jointly Provided by: Creighton University Center for Professional and Corporate Excellence

Creighton University Continuing Education Nebraska State Bar Association

NSBA Health Law Section

The Conference We will make every attempt to stay with the times that are printed on the schedule.

Courtesy

For the concentration and comfort of our participants, we ask that all cell phones and pagers be silenced during sessions of the conference. Breaks are provided for your

communication convenience. Thank you for your cooperation.

Breaks These times are designed to allow you the opportunity to take a pause from the content of this conference and to visit with other conference participants. We suggest you use

this time to learn from others, share your ideas, and establish new professional contacts.

Evaluations & Continuing Education Credit Certificates Your comments and feedback are very important to us, as they allow us to help shape and improve future programs. Following today’s program, please go to the HSCE Website at

https://healthsciences.creighton.edu . Click on the Continuing Education tab located at the top of the page, then click on For Attendees located on the right side of the page under

CONTINUNG EDUCATION. Click on the course link for the Pathways and Opportunities and complete the evaluation by July 13, 2018. Upon completion of the evaluation, you will

be automatically directed to a page to complete and print your continuing education certificate. The certificate you print will serve to document the continuing education credit you receive for the conference. Please keep the certificate for your records. If you have any

questions, please contact Health Sciences Continuing Education at 402.280.1830.

Thank You!

https://healthsciences.creighton.edu/



June 18, 2018

Ignatian Values in the Spirit of Creighton As a part of Creighton University’s Mission, Ignatian values are a vital part of healthcare. Ignatian Values date back to

the days of St. Ignatius Loyola, founder of the Society of Jesus (Jesuit Order). Ignatius believed that educators could

teach students to care about others and motivate them to effect positive changes in the world around them.

: Ignatian Values in Continuing Education Academic Excellence Acceptance & Understanding of inter-religious differences Service to Others, especially to poor and socially

disadvantaged Interface between faith & culture Education of the Whole Person: intellectual, professional,

moral and spiritual Learning is a lifelong process Respect for the dignity of each human person Promotion of a faith that does justice Forming of women and men of competence, conscience,

and compassion Disclosure Policy: It is the policy of Creighton University Continuing Education, to ensure balance, independence, objectivity and scientific rigor in all its educational activities. All faculty participating in this activity are expected to disclose to the audience any significant financial interest or other relationship he/she has with the manufacturer(s) of any commercial product(s) discussed in an educational presentation.



June 18, 2018

Objectives

At the conclusion of this program, the participant should be able to:

Identify the prevalence and signs of stress that can lead to burnout in the workplace.

Understand appropriate actions you can take when:

You witness someone under significant stress

You are under significant stress

Be exposed to practical insights on ways to deal with stress in the workplace.

Role of physician fitness-for-duty evaluations.

Identify incidents subject to mandatory reporting laws.

Understand what must, what may, and what should not be reported.

Understand the reporting process, as well as the legal and practical effect of such reports on one’s license.

Understand the Licensee Assistance Program (“LAP”) program, its pros and cons, and alternatives.

Identify the regulatory exceptions permitting on-request disclosures of PHI to law enforcement.

Recognize the common conflicts and communication problems between health care personnel and law enforcement officers.

Be exposed to preventive steps to enhance understanding and communication between hospital personnel and law enforcement.

Articulate the reasons for and importance of open and timely communication with patients and families following an unanticipated outcome or adverse event.

Identify barriers to apology and communication and discussion strategies to overcome those barriers.

Recognize tools, strategies and best practices for handling apology and communication and resources to support physicians conducting these communications.



June 18, 2018

Course Director

Kayla M. Pope, MD, JD, MA Associate Professor and Interim Chair

Program Director, Psychiatry Residency Program Department of Psychiatry

Creighton University School of Medicine Omaha, Nebraska

Faculty

Christopher J. Acker, MD, MA, FACEP Assistant Clinical Professor of Emergency Medicine

Creighton University School of Medicine Emergency Medicine Physician, CHI Health

Omaha, Nebraska

Michael W. Chase, JD, MHA Partner

Baird Holm, LLP Omaha, Nebraska

Devin J. Fox, MD, FACP

Assistant Professor Assistant Dean for Patient Care Quality

Creighton University School of Medicine Hospital Medicine Specialist

CHI Health Creighton University Medical Center Bergan Mercy Omaha, Nebraska

Faculty con’t

Ronn Johnson, PhD, ABPP Associate Professor

Department of Psychiatry Creighton University School of Medicine

Clinical Psychologist VA Nebraska-Western Iowa Health Care System

Shannon M. Kinnan, MD

Assistant Professor Department of Psychiatry


Julie A. Knutson, JD, MSW

Partner Baird Holm, LLP

Omaha, Nebraska

John Marshall, CRM, ERMCP, CIC, AAI Principal and Shareholder Professional Risk Services

SilverStone Group, Inc Omaha, Nebraska

Robert S. Thompson, RT, JD, MBA, LLM, AIC, ARM. ARE,

RPLU, CPCU Director of Education

MMIC Group Minneapolis, Minnesota

Richard D. Vroman, JD Partner

Chair, Health Law Practice Group Koley Jessen PC, LLO



June 18, 2018

The following planning committee members have listed no financial interest/arrangement or affiliation that would be considered a conflict of interest.

Kayla M. Pope, MD, JD, MA Richard D. Vroman, JD Michel Wagner, MD, FACS Amy Prenda, JD Tricia Brundo Sharrar, JD Andrea D. Bashara, MS Colin T. Dworak

The following faculty members have listed no financial interest/arrangement or affiliation that would be considered a conflict of interest. Christopher J. Acker, MD, MA, FACEP Michael W. Chase, JD, MHA Devin J. Fox, MD, FACP Ronn Johnson, PhD, ABPP Shannon M. Kinnan, MD Julie A. Knutson, JD, MSW John Marshall, CRM, ERMCP, CIC, AAI Robert S. Thompson, RT, JD, MBA, LLM, AIC, ARM. ARE, RPLU, CPCU



June 18, 2018

Education Credits

Category 1 Creighton University Health Sciences Continuing Education designates this live activity for a maximum of 4 AMA PRA Category 1 Credit(s) TM. Physicians should claim only credit commensurate with the extent of their participation in this activity.

AAPA accepts AMA category 1 credit for the PRA from organizations accredited by ACCME. Nurses CE Creighton University Health Sciences Continuing Education designates this activity for 4.0 contact hours for nurses. Nurses should claim only credit commensurate with the extent of their participation in the activity. Pharmacy Creighton University Health Sciences Continuing Education (HSCE) is accredited by the Accreditation Council for Pharmacy Education (ACPE) as a provider of continuing pharmacy education. This live activity, Pathways and Opportunities for Advancing the Medical and Legal Professions is assigned Universal Activity Number (UAN)# 0839-9999-18-060-L03-P and accredited for 4.0 hour(s) for attendance of all CE sessions on June 18, 2018. The Pathways and Opportunities for Advancing the Medical and Legal Professions is a knowledge-based CE activity. Accreditation Statement

In support of improving patient care, this activity has been planned and implemented by Creighton University Health Sciences Continuing Education and CHI Health. Creighton University Health Sciences Continuing Education (HSCE) is jointly accredited by the Accreditation Council for Continuing Medical Education (ACCME), the Accreditation Council for Pharmacy Education (ACPE), and the American Nurses Credentialing Center (ANCC), to provide continuing education for the healthcare team.

**Important – please complete this worksheet before starting the online evaluation**

Continuing Education Credit Worksheet Pathways and Opportunities for Advancing the Medical and Legal Professions

June 18, 2018

Please tabulate your credits on this worksheet before taking the online evaluation. This worksheet information will be needed when completing your HSCE credit certificate

following the evaluation.

Monday, June 18, 2018 Notes

Program Overview 0.25 Credits ______ ____________________________

Practice Management 1.00 Credits ______ ____________________________

Disclosures to Law 1.00 Credits ______ ____________________________

When Things Go Wrong 1.00 Credits ______ ____________________________

Putting it All Together 0.75 Credits ______ ____________________________

Total Credits Possible: 4.00 Credits _________

Please note this is a worksheet only and not a certificate of attendance.

Your comments and feedback are very important to us, as they allow us to help shape and improve future programs. Following today’s program, please go to the HSCE Website at

https://healthsciences.creighton.edu . Click on the Continuing Education tab located at the top of the page, then click on For Attendees located on the right side of the page under

CONTINUNG EDUCATION. Click on the course link for the Pathways and Opportunities and complete the evaluation by July 13, 2018. Upon completion of the evaluation, you will be

automatically directed to a page to complete and print your continuing education certificate. The certificate you print will serve to document the continuing education credit you receive for the conference. Please keep the certificate for your records. If you have any questions, please

contact Health Sciences Continuing Education at 402.280.1830.

https://healthsciences.creighton.edu/

Course Director

Kayla M. Pope, MD, JD, MA Associate Professor and Interim Chair

Program Director, Psychiatry Residency Program Department of Psychiatry


Dr Pope is a child and adolescent psychiatrist who serves as the Program Director for General Psychiatry and Division Chief for Child and Adolescent Psychiatry at Creighton University Medical Center. She is also serving as the interim chair for the Creighton Department of Psychiatry. She received her medical degree from George Washington University Medical Center in Washington, DC. She completed her general psychiatry training at the University of Maryland/Sheppard Pratt, in Baltimore, MD, and her child and adolescent psychiatry fellowship at Children’s National Medical Center in Washington, DC. She completed a research fellowship at the National Institute of Mental Health. She is the current president of the Nebraska Regional Organization of the American Academy of Child and Adolescent Psychiatry and is a member of the Professionalism Committee for the American Board of Psychiatry and Neurology.

Practice Management, Burnout, Substance Abuse and Mandatory Reporting Obligations

Ronn Johnson, PhD, ABPP

Associate Professor Department of Psychiatry

Creighton University School of Medicine Clinical Psychologist

VA Nebraska-Western Iowa Health Care System Dr. Johnson is an Associate Professor at Creighton University School of Medicine Department of Psychiatry and is a clinical psychologist at the VA Nebraska-Western Iowa Health Care System. He is a licensed and board certified psychologist with extensive experience in academic and clinical forensic settings. Formerly, he was the Director of the Western Region of the American Board of Clinical Psychology. Dr. Johnson has served as a staff psychologist in community mental health clinics, hospitals, schools and university counseling centers. The University of Iowa, University of Nebraska-Lincoln, University of Central Oklahoma, and San Diego State University are among the sites of his previous academic appointments. In addition, he was an adjunct professor in the Homeland Security Department at San Diego State and the California School of Forensic Studies at Alliant International University. His practice and research areas include antiterrorism, trauma, police psychology, and transdiagnostic issues with veterans.

Practice Management, Burnout, Substance Abuse and Mandatory Reporting Obligations

Richard D. Vroman, JD

Partner Chair, Health Law Practice Group

Koley Jessen PC, LLO Rick uses a broad range of legal and practical experience to help clients navigate the highly regulated and ever-changing global healthcare environment. Rick received his JD from Creighton University School of Law, where he also served as editor in chief of the Creighton Law Review. Rick’s health law practice includes advising healthcare clients with respect to their individual and entity licensing, medical staff, credentialing and peer review matters, as well as regulatory matters arising out of the client’s participation in, or ties to, the Medicare and Medicaid programs, which would include the Stark Law, Federal Anti-Kickback Statute, and False Claims Act. Rick effectively represents clients before licensing boards as well as state and federal agencies governing both employment related and healthcare matters.

Disclosures of Protected Health Information to Law Enforcement Officers

Christopher J. Acker, MD, MA, FACEP

Assistant Clinical Professor of Emergency Medicine Creighton University School of Medicine

Emergency Medicine Physician, CHI Health Omaha, Nebraska

Dr. Acker is an Emergency Physician practicing at CHI Health Mercy Council Bluffs and CHI Health Creighton University Medical Center- Bergan Mercy. After graduating from Marquette University with a degree in Biomedical Sciences and minor in Ethics, he attended Loyola University Chicago, Stritch School of Medicine. There he completed a dual degree program, earning a Masters in Bioethics and Health Policy while attending medical school. He then completed his residency in Emergency Medicine at the University of Nebraska Medical Center and served as Chief Resident. Currently, Dr. Acker is the EMS Medical Director for Council Bluffs Fire Department and Co-Medical Director for the Pottawattamie County Rural EMS. He is also an Assistant Clinical Professor of Emergency Medicine at Creighton University School of Medicine. Dr. Acker is a diplomate of the American Board of Emergency Medicine and a Fellow of the American College of Emergency Physicians.


Michael W. Chase, JD, MHA


Omaha, Nebraska Michael is a member of the Health Care Practice of Baird Holm, representing health care clients in the areas of fraud and abuse, clinical research, electronic health records, HIPAA, HITECH, Meaningful Use and other Federal and State laws regarding Privacy. He is a graduate of the joint degree (Juris Doctor/Master of Health Administration) program of St. Louis University and received his Bachelor of Science in Business Administration from Creighton University.




Omaha, Nebraska

Julie's practice primarily focuses on advice and representation concerning regulatory compliance, government investigations and self-disclosures, medical staff, licensure, contracting, behavioral health issues and the legal aspects of facility operations. She received a Bachelor of Arts in Sociology from Creighton University, a Master of Social Work from the University of Nebraska at Omaha and a law degree from Creighton University School of Law. Prior to joining Baird Holm, Julie worked for 18 years in the health care industry as a social worker, manager, internal consultant in quality improvement and management trainer.

6/12/2018

© 2018 Baird Holm LLP 1

Disclosures of Protected Health Information to Law Enforcement

OfficersNSBA Health Law Section

June 18, 2018

Christopher J. Acker, MD, MA, FACEPMichael W. Chase, JD, MHA


Faculty DisclosuresChristopher J. Acker, MD, MA, FACEP

Michael W. Chase, JD, MHA


have listed no financial interest/arrangement that would be considered a conflict of interest.

Agenda

• Review of HIPAA exceptions permitting disclosures to law enforcement

• Discuss real-life scenarios involving health care personnel and law enforcement

• Learn steps to enhance understanding and communication between hospital personnel and law enforcement

6/12/2018


Background

• Often times, the "knee jerk" reaction is to call law enforcement

• But, wait…what about HIPAA?• Hospitals are not agents of law enforcement• Must consider duties to the patient• Carefully consider each situation before

calling law enforcement

Background• Health care providers often face demands from

police or other law enforcement officials– Not only written demands, but also verbal demands

(in uniform; in the middle of the night or immediately following an accident)

• Many times a conflict occurs when law enforcement seeks access to patients or request patient information

HIPAA – General Rules• RULE: Individually identifiable health

information is confidential by law and cannot be accessed, used or disclosed except according to an exception

• EXCEPTIONS– Broad: treatment, payment, health care

operations– Narrow: As listed in §512 of HIPAA

6/12/2018


HIPAA – General Rules

• If source of threat is current or former patient, when can you call law enforcement and what can you tell them?

• Must have authority to disclose patient protected health information (PHI) to law enforcement under HIPAA

Disclosures to Law Enforcement

• Disclosure of patient's name, condition, etc. is PHI

• Disclosure of "evidence" (for example, a bullet, bag of drugs, etc.) might not itself be PHI– But does it include identifying information?– Did you provide a history/details about how it

was obtained from the patient, etc.?

8

Required By Law

• 45 CFR 164.512(f)(1): may disclose PHI– As required by law, including laws that require

the reporting of certain types of wounds or other physical injuries

6/12/2018


Required By Law• In compliance with

– Court order, court-ordered warrant, or a subpoena or summons issued by a judicial officer

– Grand jury subpoena– Administrative request (subpoena, summons, civil

investigative demand), provided that• The information sought is relevant and material to a

legitimate law enforcement inquiry; and• The request is specific and limited in scope to the extent

reasonably practicable in light of the purpose for which it is sought; and

• De-identified information could not reasonably be used.

Examples - Paging Dr. Acker• Nebraska wounds of violence reporting• Verbal demands for information from a

highway patrol officer following a motor vehicle accident?

• Subpoena to testify– Does it have the patient's name? Who are they

supposed to testify about? – What is the provider supposed to testify about?

Is the subpoena specific enough?

Identification & Location• 45 CFR 164.512(f)(2): may disclose PHI

– In response to a law enforcement official's request for the purpose of identifying or locating a suspect, fugitive, material witness, or missing person.

– May only disclose the following information• Name and address • Date/time of treatment

• Date and place of birth • Date/time of death

• Social Security Number• ABO blood type and rh factor

• Description of physical characteristics

• Type of injury • May not disclose DNA, dental records, or analysis of body fluids (e.g., blood alcohol)

6/12/2018


Examples – Paging Dr. Acker• Law enforcement asks the Hospital to notify

when the patient is discharged (so they can show up and arrest the patient)– Remember, this is a permissive disclosure– Get representation that the patient is fugitive,

material witness, or missing person• Child protective services asks to be notified

when a pregnant mother (on probation) shows up to deliver her baby– No evidence of prenatal drug abuse?

Crime on Premises

• 45 CFR 164.512(f)(5): may disclose to a law enforcement official PHI that the covered entity believes in good faith constitutes evidence of criminal conduct that occurred on the premises of the covered entity.

Crime on Premises

• Assault on a health care professional– Neb. Rev. Stat. §28-929

• Unlawfully obtaining or attempting to obtain controlled substances by theft, misrepresentation, fraud, forgery, deception, or subterfuge– Neb. Rev. Stat. §28-418

• Theft of services– Neb. Rev. Stat. §28-515

6/12/2018


Examples – Paging Dr. Acker

• Patient threatens staff or starts a physical altercation with a provider– What if you notice a pocket knife in the patient's

belongings?

• Patients seeking narcotics/opiates– What if the provider finds unmarked pill bottles?

Prescriptions in another individual's name?

• Patients using another individual's ID card to obtain services

Examples – Paging Dr. Acker

• What if the patient has a small amount of marijuana in his/her belongings?– Do you call law enforcement?– Do you dispose of the drugs?– What about paraphernalia?– What if it's a large amount of drugs? What if it's

cocaine? Meth? Narcotics?

Avert a Serious Threat• 45 CFR 164.512(j): may disclose PHI if the covered

entity, in good faith, believes the use or disclosure– Is necessary to prevent or lessen the threat, including

the target of the threat; or– Is necessary for law enforcement authorities to

apprehend an individual; or– Is necessary for law enforcement to identify or

apprehend an individual• Because of a statement made by an individual

participating in a violent crime; or• Where it appears the individual has escaped from a

correctional institution or lawful custody.

6/12/2018


Examples – Paging Dr. Acker• Patient leaves against medical advice

– After receiving high doses of pain medications?– Is intoxicated and might be driving a vehicle?– Leaves with infusion port still attached – and it could be

used to administer illicit drugs?

• Patient makes homicidal threats– What is the patient's mental state?– What if the patient has dementia?– What if the patient made suicidal threats while in the ED?

Blood Alcohol Tests• Birchfield v. North Dakota (U.S. Supreme Court)• Reviewed statute establishing implied consent to

BATs related to drivers licensure• Generally, law enforcement requested BAT and

patient refusal was enforced through criminal penalties

• Illegal Search and Seizure – Constitutional right • Illegal BATs not admissible in criminal prosecution to

show BA level in excess of legal limits for driving

Blood Alcohol Tests• Suspected drunk driver may consent to BAT

– But do they have capacity if drunk?• Ideally, consent in writing; special consent form• Drivers may postpone test by requiring law

enforcement to obtain a search warrant for BAT– They may hope to have lower BA level by the time the

warrant is presented to the hospital• HIPAA implications for release of the BAT results

– Warrant or patient authorization

6/12/2018


Disclosures to Other Agencies

• 45 CFR 164.512(b) public health activities– Child abuse reporting (Neb. Rev. Stat. §28-710)

• 45 CFR 164.512(c) victims of abuse, neglect or domestic violence– Elder neglect and abuse reporting (Neb. Rev. Stat. §28-

372)– Domestic violence reporting (Neb. Rev. Stat. §28-323)– Assault of an unborn child (Neb. Rev. Stat. §28-395)

Community Coordination/Innovation

• Not just the hospital's problem• Convene an interdisciplinary team (Hospital

staff and law enforcement)• Exchange information and have processes in

place that comply with HIPAA• Sample guidance from Minnesota Hospital

Association, MN Department of Health, and MN Sheriff's Association

Collaboration with Law Enforcement – MN Example

• Interdisciplinary safety team including law enforcement partners– Communications plan with law enforcement– Agreement to have law enforcement on-site– Including law enforcement in high risk cases or security huddles– Prior notification of arrival process– Develop and implement a security plan– Process for information sharing (HIPAA compliant)– Communication process for the hospital to receive results of a public

safety risk assessment– Presence of law enforcement during a hospital stay (if necessary)– Develop and implement a security program

6/12/2018



• Emergency Holds and Peace Officer/Health Officer Authority– Process to receive patients under peace officer authority

(safe waiting space)– Process to notify law enforcement if a patient leaves AMA

or is discharged during a 72-hour hold– Design spaces that provide safety and security to patients

(could include high security rooms)


• Child Protective Services– Process in place to notify CPS and law enforcement if

mandated reporting is necessary– Communication with law enforcement when a child is

taken into custody and removed from family/guardian

• Medical Evidence Recovery– Process for responding to court orders (and administrative

requests, subpoenas, CIDs, etc.)– Training on cross-contamination techniques

Collaboration with Law Enforcement

• Discuss limitations and appropriate protocols for handling specific situations– Emergencies at the hospital (violent patients and

visitors)– Emergency holds– Medical evidence (including issuing subpoenas

and court orders)

6/12/2018


Collaboration with Law Enforcement

• Provide education as necessary• Improve processes for inter-agency

communication• Debrief problem situations as a group

General Recommendations• Adopt HIPAA policies and procedures for

each law enforcement exception• Train workforce on the policies and

procedures• Work with law enforcement in advance• Periodic education/updates on specific

scenarios– Patient searches/seizures– How to comply with/respond to subpoenas

Questions?

Michael W. [email protected]

(402) 636‐8326

Julie A. [email protected]

(402) 636‐8327

Dr. Christopher J. [email protected]

When Things Go Wrong: Apology and Communication

Devin J. Fox, MD, FACP

Assistant Professor Assistant Dean for Patient Care Quality Creighton University School of Medicine

Hospital Medicine Specialist CHI Health Creighton University Medical Center Bergan Mercy

Omaha, Nebraska Dr. Fox is the Chief Medical Officer of Creighton University Medical Center and the Assistant Dean for Patient Safety and Quality at Creighton University School of Medicine. He is a graduate of the University of Nebraska College of Medicine. He completed his training in Internal Medicine at Creighton and, after a year as Chief Resident, began his clinical practice in General Medicine in a community-based clinic in Omaha. During his years of clinical practice, Dr. Fox continued to round and teach on the Inpatient Medicine Service at Creighton University Medical Center (CUMC) and had learners from Creighton and the University of Nebraska in his clinic. He is a three-time winner of the Golden Apple Award for Clinical Teaching from the students of the Creighton University School of Medicine. He still maintains clinical practice and clinical education at CUMC as a part-time Hospitalist in addition to his administrative duties. Dr. Fox has been a member of the American College of Physicians since 1993 and currently serves as the Vice Governor for the Nebraska Chapter. He chaired the annual meeting in 2008 and has served on the Governor’s Advisory Council since that time. He has been active in various community organizations over the years, most recent the Board of Directors of the Nebraska Aids Project and President of the Board of the BLUEBARN Theater in Omaha. He has been a volunteer physician with the Magis Clinic at the Sienna-Francis House since 2002 and has traveled on medical missions to the Dominican Republic and Jamaica. Dr. Fox was honored with the Volunteerism Award by the Nebraska Chapter-ACP in 2011.


John Marshall, CRM, ERMCP, CIC, AAI

Principal and Shareholder Professional Risk Services

SilverStone Group, Inc Omaha, Nebraska

John leads Silverstone Group's Professional Risk Practice. He is a frequent speaker on issues of professional risk management and enterprise risk management for a significant group of healthcare clients and well as other professional organizations and industries using industry research along with other unique data. John earned his Bachelors of Science in Business Administration from Drake University.


Robert S. Thompson, RT, JD, MBA, LLM,

AIC, ARM. ARE, RPLU, CPCU Director of Education

MMIC Group Minneapolis, Minnesota

Robert specializes in delivering patient safety, risk management and healthcare communications seminars. He earned his bachelor's degree from North Georgia College and State University, his Juris Doctorate from the University of Georgia School of Law, his Master of Business Administration from Lincoln University and his Master of Laws in dispute resolution from the University of Missouri School of Law.

6/12/2018

1

© 2016 MMIC. All rights reserved

When things go wrong:

apology and communication

Robert Thompson, RT, JD, MBA, LLM, AIC, ARM, ARE, RPLU

MMIC GroupJohn Marshall, CRM, ERMCP, CIC, AAI

SilverStone Group, Inc.Devin Fox, MD, FACP, MBA

CHI Health Creighton University Medical Center


Robert Thompson, RT, JD, MBA, LLM, AIC, ARM. ARE, RPLU

John Marshall, CRM, ERMCP, CIC, AAI

Devin Fox, MD, FACP, MBA

have listed no financial interest/arrangement that would be considered a conflict of interest.

Faculty Disclosures

2

© 2016 MMIC. All rights reserved3

• Why are healthcare providers adopting alternative approaches to handling adverse outcomes?

• What barriers, economic factors and liability implications must be considered?

• Practical application and process overview

• Strategy/process-Examples and open discussion

Presentation Summary

6/12/2018

2


Transparency—Honesty—Communication

Until we normalize adverse outcomes, patients and providers will continue to suffer. . .

Why

4


• Patients want it and expect it• Preserves patient trust• Opens dialogue about what’s next• May reduce the possibility of a lawsuit• Starts the healing process

– For patients– For providers

Why

5


• Professional responsibility from AMA• Required by The Joint Commission• Supported by IHI, ASHRM,

AHRQ, ACOG…• May reduce patient seeking

legal remedy

Why

6

6/12/2018

3


0%

5%

10%

15%

20%

25%

30%

MMIC Occurrence vs. Total Cost

% Cases

% Cost

Allegations and Cost Drivers

MMIC N=2,867 | CBS Peers N = 28,482 (excl. AMC) | MPL Open/Closed Cases | Asserted 2010-2015

Diagnosis-related Allegations (N=484)

$84.7million

Other Major Allegations (N=65)with Diagnosis-related Minor Allegations

$17.7million

7


Scope of FUSF

Other 81%N=2,318

No FUSF 11%N=320

42%of MMIC cases with

a major or minor dx-related allegation

involves an FUSF factor

FUSF 8%N=229

Cases with Follow up System Failures (FUSF)

Dx-related 19%N=484

Cases with a major or minordiagnosis-related allegation

MMIC N=2,867 PL Open/Closed Cases Asserted 2010-2015

Scope of FUSFwithin Diagnosis-related Cases

FUSF 42%N=229

No FUSF 58%N=320

Even if physicians diagnosed accurately 100% of the time, we’d still have diagnostic error.

8


“From 2009 to 2014, after PEARL was implemented, the frequency of lawsuits was 50% lower, and indemnification costs in paid cases were 40% lower compared with 2003 to 2008”.

Also: See University of Michigan Medical Center Program

Stanford's Pearl Program

Examples of programs

9

6/12/2018

4


• Fear of inciting a lawsuit• Fear of tough conversations• Fear of vulnerability• Uncertainty of what to say/not say• Waiting for a full investigation • Waiting for a lawsuit• Lack of leadership support• Insurance industry-historic approach of “Defend and Deny”

Apology and communicationWhy Not

10

Copyright 2014 MMIC • All rights reserved

Insurance industry-making the case for change

Claims frequency stable Claims severity on the rise 1 in 4 jury verdicts exceeds

$1.2 million Most medical malpractice insurance carriers

slow to change Technology changing healthcare fast-Liability

implications?



Medical Malpractice-paid claims trends

12

6/12/2018

5

Copyright 2014 UMIA • All rights reserved

Insurance industry-Crisis?!?

Medical Malpractice rates estimated at 15-year lows when adjusted for inflationNebraska doctors base rates (can be higher or lower by

50%) plus 40% additional to NE Liability Fund– Internal Medicine-$3,434 annual premium– General Surgery-$10,301– OB/GYN-$15,737

Health systems self-insure much of risk including employed physician exposures



Medical Malpractice-Severity trends

14


Insurance industry-making the case for change

80% of matters tried result in defense win80% of claims closed without indemnity paymentOnly 3% of all incidents turn into claim or lawsuitDefend and Deny strategies prevalent for decades nowMidwest medical malpractice carrier stats better than

above


6/12/2018

6


Medical Malpractice-Regional Trends

16

*Hepatitis C case in Nebraska drove 2005 frequency


Medmal Industry-Other considerations

Insurance industry has shrunk as doctors become employed and health systems self-insure primary risk.

– More experimentation of alternative resolution payment programs as health systems control provider response

– Identification and focus on “frequent flyers”– 2% of doctors contributed to half of all payouts-NPDB study– Half of claims filed are abandoned by plaintiff

Health systems have deeper pockets and more insurance– Last medical malpractice crisis most physicians had limits no

greater than $1million per occurrence/$3million aggregate



Medmal Industry-Other considerations

Will apology and disclosure lead to more payments?– Instead of having difficult discussions.

Coordination of apology programs with insurance carrier– Providers must preserve rights of their insurance company by

not admitting guilt at time of incident (standard language)– Providers cannot normally make an offer of payment without

consent of insurance carrier– Reputational risk

Erosion of tort reform measures at state levelNot always clear what the definition of an incident is-

Reporting to insurance carrier ramifications


6/12/2018

7

When do we talk?

19


The Joint Commission

When outcomes differ from anticipated outcomes, or sentinel events

AMAAs soon as feasible after care is addressed and patient is emotionally ready

ASHRMPatients want timely information – undue delay allows for atmosphere of mistrust

ACOGAs soon as reasonably possible, while emphasizing to patients that it is an ongoing process

When

20


FIRST PRIORITY – Medical needs of the patient• Full, open communication about medical issues• Assign/clarify primary responsibility for care• Don’t delay necessary consults, tests, imaging

When

21

6/12/2018

8


• Would you want to know if it happened to you or your family member?

• Will the outcome result in a change in treatment, either now or in the future?

• Would the info help the patient heal physically or emotionally?

When

22


Who’s on my team?• Who was involved?• Who’s on future care?• Supervisors?• Risk management?• Department chiefs?• Who can do a quick investigation?

Who

23


Team meeting:• Pertinent facts• What came from our quick investigation?• Here’s what we’re going to say…• Follow-up strategy• Assess emotions• No blaming

Who

24

6/12/2018

9


Who should talk to the family?• The involved provider(s) whenever possible• Ad hoc teams vs. fixed memberships?• Chief of staff?• Risk manager?• Social work?• Malpractice insurance carrier?• Patient support people?

Who

25

What are we going to say?

26


Apology and Communication

Acknowledgement of the event or errorAn explanationAn apologyAn assurance it will not happen again

What Do Patients Want?

6/12/2018

10


• Known facts of what happened (don’t speculate)• Medical care going forward• Where to go with more questions• What you’re doing next to review• What to expect during your review• What you plan to do to make sure this doesn’t

happen to anyone else• Whatever else the patient wants to know

What

28


What do patients want?1. An acknowledgement of the event or error 2. An explanation3. An apology (repetition phenomenon)4. Assurances this will not happen again

What

29


Apology of regret

Apology of remorse

I’m sorry for what happened or what you’re going through, we’ll take care of it

I’m sorry I made a mistake

30

6/12/2018

11

What do we do next?

31


Professional impact

Personal impact

Team support

32


Second victim impact:• 61% increase in anxiety over future errors• 44% loss of confidence• 42% decreased job satisfaction• 42% sleep difficulties• 13% felt harm to reputation

Team support

Waterman, A, et al. The Emotional Impact of Medical Errors on Practicing Physicians in the United States and Canada. Jt Comm J Qual Saf, 2007 Aug.

33

6/12/2018

12


Documentation1

Billing issues2

Internal reviews3

34


What to include: • Known facts• Care given in response• Facts of communication

with patient and family– Who, when, where– Summary of discussion– Questions and answers

• Follow-up plans

Documentation1

35


What NOT to include: • Jousting• Subjective feelings• Speculation

Documentation1

36

6/12/2018

13


What NOT to include: • References to incident report

forms, analysis• Discipline• Comments about potential lawsuits• Comments about calling an attorney

or MMIC

Documentation1

37


Sending bill as usual = recipe for a lawsuit

• Place a hold until evaluation is done• Don’t make promises to the patient

or family• Get advice about any restrictions

Billing issues2

38


• Conduct internal reviews• Reexamine root causes• Reexamine policies and procedures• Learn and improve

Internal reviews3

39

6/12/2018

14


Rethink your policy on apology:• Does your organization have a culture of

honest communication?• Are providers free to apologize?• Do you support providers through

the process?

Internal reviews3

40

Catholic Health Initiatives /

Case Study

• Mary is a 39-year-old mother of two small children who presented to the hospital's GI suite to undergo a procedure under moderate sedation. Her parents, Bill and Beth, accompany her. Toward the end of the procedure, the nurse notices that Mary has turned blue and stops the procedure. The nurse also notices that Mary is not breathing, and her EKG shows a heart rate of less than 30. The nurse calls for a code blue response while the team involved in the procedure begins to administer CPR. When the code team arrives, there are some delays in providing appropriate care while different physicians argue about the proper course of treatment. Eventually the team is able to re-establish Mary's normal heart rate, blood pressure, and adequate blood oxygen level.

• During the resuscitation efforts, information obtained from the devices monitoring Mary's EKG, blood pressure, and blood oxygen levels reveals a period of approximately 7 minutes during which she may not have been breathing adequately, possible from too much sedation medication during the procedure. The nurse involved in monitoring Mary appears visibly shaken and states that she was distracted during the procedure because she was trying to obtain different pieces of equipment for the procedure.

• Bill and Beth are in the waiting room. They have heard the overhead call of code blue and have seen many people running to the procedure area.

• You have been asked to go to the waiting room and speak with Mary's parents. You approach Bill and Beth in the waiting room.

AHRQ CANDOR Toolkit 41

• Disclosure Immediately After An Occurrence

Catholic Health Initiatives /

Case Study

• Adam, a 55 year-old male is admitted to your hospital for an elective removal of his spleen. The nurses, operating surgeon and anesthesiologist are all employed by the hospital, which is self-insured for professional liability. The procedure is technically challenging due to the patient's obesity but appears to go smoothly.

• Adam is discharged after 3 days and has mild, persistent abdominal pain. The medical team attributes the pain to the surgical incision. When Adam returns for his 2-week post-operative check at the surgeon's office, he reports increasing abdominal pain and a 3-day history of a low-grade fever.

• An X-ray of the abdomen reveals a surgical sponge. Adam undergoes another surgery to remove the sponge, at which time an abdominal infection is discovered. The surgery is performed by a different surgical team at the same hospital. Treatment of the abdominal infection requires a 4-day stay in the hospital followed by a 3-week course of intravenous antibiotics at home. Adam, who is employed as an architect, misses a total of 8 weeks of work.

• The root cause analysis reveals that the sponge counts took place before and after the surgical procedure, and correct counts were documented. The patient's physical make-up was considered to be a causative factor.

AHRQ CANDOR Toolkit 42

• Disclosure After An Investigation

6/12/2018

15


• MMICGroup.com, UMIA.com

• ACOG: http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Patient-Safety-and-Quality-Improvement/Disclosure-and-Discussion-of-Adverse-Events

• AHRQ Error Disclosure: https://psnet.ahrq.gov/primers/primer/2

• ASHRM: http://www.ashrm.org/pubs/files/white_papers/Disclosure-of-Unanticipated-Events-in-2013_Prologue.pdf

• CRICO Disclosure and Apology: https://www.rmf.harvard.edu/Clinician-Resources/Topic-Tag/Disclosure-Apology

• ECRI: https://www.ecri.org/components/HRC/Pages/IncRep5.aspx

• Empathetics: http://empathetics.com/

• IHI: http://www.ihi.org/resources/Pages/Publications/PowerofApology.aspx

• The Sorry Works! Coalition: http://www.sorryworks.net/

Apology resources

43

Pathways and Opportunities for Advancing the Medical and Legal Professions: Putting it

All Together: Moderator

Shannon M. Kinnan, MD Assistant Professor

Department of Psychiatry Creighton University School of Medicine

Omaha, Nebraska Shannon Kinnan MD is an assistant professor of Psychiatry at the Creighton University School of Medicine. She completed medical school at University of Nebraska Medical Center, residency at the combined Creighton-UNMC program, and joined Creighton Faculty in 2010. She is involved in teaching services both on inpatient care at Lasting Hope Recovery Center and in her work in collaborative care at One World Community Health Center. She recently became board certified in Addiction Medicine and serves as a core faculty for the psychiatric residency program.

pathways and opportunities for advancing ... - health sciencesmedical and legal professions ....

Documents