Bootcamp Fall 2022: Hot topics in medical professional liability

To view the full video of the presentation, click here.

INTRODUCTION

Today’s physicians face more litigation risks than in the past, and some of these risks originate in four surprising areas, according to a session presented during Medical Economics® Fall 2022 Physician Bootcamp.

For example, telemedicine was great during the COVID-19 pandemic — and 86% of patients love the service — but it has limitations that can lead to missed diagnoses. Another recent development is an increased use of advanced practice providers to help reduce the burden on physicians. But without proper oversight, these individuals with less training can put the physician at risk. Physicians also may be sharing space to save money and pool resources or maybe the hospital owns the building, but this can create patient confusion about who is providing care; risks also occur here when staffers are not clear on who is maintaining medical records for each physician, meaning follow-ups might be overlooked. And finally, many doctors have added ancillary services to recoup revenue lost during the pandemic, but those services may not be protected by their current liability policy.

LEARNING OBJECTIVES

Identify current medical professional liability trends impacting health care professionals.

Recognize potential vulnerabilities in practice by examining case examples.

Describe strategies to mitigate risk and reduce the likelihood of being named in a lawsuit.

MEET THE PANELISTS

Terese Souders
Regional Claims Administrator
ISMIE Mutual Insurance Company

Michael O’Neill, CPHRM
Assistant Vice President, Risk Management Operations
ISMIE Mutual Insurance Company

4 areas of malpractice risk physicians must know about

Telemedicine use exploded during the COVID-19 pandemic as patients sought new ways to see their physicians while keeping themselves safe from exposure to the virus. But with any new technology, there are risks. A virtual visit doesn’t allow the same hands-on exam, meaning vitals can’t be taken and a diagnosis might be missed.

To avoid many of the pitfalls, physicians need to have processes in place to make sure that patients are being tracked and any ordered follow-ups are not missed, said Michael O’Neil, CPHRM, assistant vice president of ISMIE Mutual Insurance Company. “How do you check in to make sure they are doing what they are supposed to?” he asked. “How do you schedule a follow-up appointment?”

Daily documentation is critical for telemedicine, just as it is for in-person visits. “Will the documentation hold up in court, and does it tell a story?” asked O’Neil, who noted that with physicians often doing multiple telemedicine visits in a short time, the documentation requirements can quickly pile up.

Terese Souders, a regional claims administrator for ISMIE, said the most recent cases she’s seen have to do with the diagnostic limitations of not being able to touch the patient and examine their complaint area. If a physician directs the patient to go to the emergency department or take other action, that needs to be carefully documented.

O’Neil added that states have started restricting telemedicine as the pandemic winds down, so physicians need to be very careful that they are not illegally practicing in a state via telehealth because the rules are rapidly changing.

Another area of risk is with advanced practice providers, such as nurse practitioners (NPs) or physician associates. “How are you supervising them?” asked O’Neil. “Are they seeing patients that are complex or that are new to the practice with tons of medicines and problems that have never been seen by the doctor?”

He said doctors need to carefully consider which patients advanced practice providers are seeing and clearly outline those procedures and expectations. For example, maybe a patient can only be seen twice by an NP before they are automatically referred to the doctor. If NPs are working with nursing homes, prescribing medicine, or making medical judgments, the supervising physician needs to be consistent in reviewing their work. As an NP or physician associate takes on additional work, doctors need to ensure that internal policies and procedures are updated to reflect these changes.

The third area of risk, and one that is often overlooked, is sharing office space. Maybe the physician works in a space owned by a hospital, or maybe multiple independent physicians work in the same office complex. Souders said that physicians must make it clear to patients who is seeing them and what affiliations they have. For example, a doctor working in a space owned by the hospital might be mistaken by the patient as a representative of the hospital.

The other problem that often arises from shared-space arrangements is a blurring of staff responsibilities. Who is in charge of updating a patient’s medical records? Who handles follow-ups? These issues can also occur when multiple physicians combine into one building. Who is insuring the building, and how is the malpractice liability coverage being handled for each individual in the group?

And lastly, doctors tend to overlook additional liability coverage for ancillary services. These may have been added to recoup revenue lost during the COVID-19 pandemic, but not all policies will automatically cover these new services.

“If your practice is changing in any way, check in with your underwriter to make sure those areas are covered as well,” said Souders.

The same is also true when working for a hospital: Make sure your coverage extends to that facility.

Takeaways & Solutions

• Review all telehealth policies, and clearly document each encounter.
• Set clear expectations for advanced practice providers, and review their work.
• Inform patients about what provider they are seeing and what organization/practice that provider works for.
• Check with your underwriter on whether ancillary services are covered.
• Update the practice’s policies and procedures as they evolve over time.