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    Dr. Marcinko is originally from Loyola University MD, Temple University in Philadelphia and the Milton S. Hershey Medical Center in PA; as well as Oglethorpe University and Emory University in Georgia, the Atlanta Hospital & Medical Center; Kellogg-Keller Graduate School of Business and Management in Chicago, and the Aachen City University Hospital, Koln-Germany. He became one of the most innovative global thought leaders in medical business entrepreneurship today by leveraging and adding value with strategies to grow revenues and EBITDA while reducing non-essential expenditures and improving dated operational in-efficiencies.

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On Hospital Medical Staff Selection

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fentonBy Dr. Charles F. Fenton III; JD

The Joint Commission [TJC] Accreditation Manual for Hospitals has established basic guidelines for medical staff selection and monitoring.

 

Governing Body

The responsibility for selecting and monitoring the medical staff rests with the governing body of the hospital. The governing body may delegate the actual process of review to a medical staff committee, but it cannot delegate its responsibility for the decisions that committee makes.

The hospital will be liable for allowing an unqualified person to become a member of the medical staff if that person is improperly approved by the medical staff committee. The hospital governing body must ensure that the criteria used in evaluating staff members are sufficient and are followed. While the governing body may not be qualified to judge the professional competence of the potential staff member, it can verify the current status of the applicant’s license and determine whether the letters of reference are authentic.

These may seem to be simple matters, but they are often neglected, to the great legal detriment of the facility if an unlicensed or incompetent physician is admitted to the medical staff.

The application for staff membership should include:

  • applicant’s full name, date of birth, Social Security number, drivers license number, current address, and past addresses since a student or for five years
  • name of applicant’s medical school, its location, and the date of graduation
  • names, positions, addresses, and phone numbers of references who will vouch for the applicant’s professional competence and ethical character
  • type and location of all postgraduate training
  • board certifications or eligibilities
  • all places of licensure, whether in force or not, and the identification numbers of the licenses
  • all hospital privileges now in effect, those in effect within the past three years, and any facilities where privileges were terminated for disciplinary reasons
  • all malpractice suits in which the applicant was or is a defendant, including the docket number of the suit, the place of filing, a brief statement of the allegations against the applicant, and the ultimate disposition of inactive suits
  • any current of past challenges to medical or drug licenses
  • a statement of the applicant’s health

Specials

Any special qualifications or experience that are relevant to the applicant’s professional competence. In addition to these items, the applicant should sign a release that will enable the investigating committee to check the validity of the information in the application. There are certain items that must be validated.

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ASSET_BARCODE: BCK-951-BS ## DESCRIPTION: Baltimore City Jail ## EXTENDED_DESCRIPTION: 3 | ## CAPTION: ## SUMMARY:

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These include medical school graduation, status of all medical licenses (whether currently in force or not), all disciplinary actions, and personal references. It is especially useful to contact reference by telephone, if care is taken to make a record of any information obtained and its source. The most important aspect of the application is the history of past disciplinary actions and malpractice suits. Past successful disciplinary action, especially limitation or suspension of a state license is assumed to be a strong indication of incompetent or unethical practice. The hospital may choose to grant privileges after weighing the offense and the applicant’s subsequent behavior, but this is legally very different from granting privileges without exploring disciplinary proceedings. The committee reviewing the application must decide whether the application should be granted and must be able to defend that decision. If a questionable applicant is granted privileges, there should be a formal written statement detailing the investigation of the applicant and the factors relied upon in granting privileges. The history of past malpractice suits is more difficult to interpret. The loss of a single suit should be reviewed, but this will not usually be a bar to obtaining privileges (unless it turned on intentional or unethical actions). A series of lost lawsuits is a strong indication of both negligence and poor patient relations. The decision is more difficult when there are pending lawsuits or a long string of suits that was settled or won by the defendant.

From a legal point of view, a lawsuit won by the defendant should be treated as if it was unfounded. Practically, however, there are many areas of the country where it is almost impossible for a plaintiff to win a malpractice lawsuit. A physician who attracts litigation but prevail in court may become a threat in an area where plaintiffs’ verdicts are more common. If several suits are involved or the charges involve unethical practice, pending litigation should also be reviewed.

Assessment

While civil litigation does not affect licensure in many states, its existence can be used to question the hospital’s decision to extend staff privileges to an applicant. 

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The Surgeons Scorecard

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Millions of patients a year undergo common elective operations – things like knee and hip replacements or gall bladder removals.

But, there’s almost no information available about the quality of surgeons who do them. ProPublica analyzed 2.3 million Medicare operations and identified 67,000 patients who suffered serious complications as a result: infections, uncontrollable bleeding, even death.

We’ll be reporting the complication rates of 17,000 surgeons — so patients can make an informed choice.

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Litigation and Legacy in Education and Medicine

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Distinct Fields Bound by Certain Parallels

[By Jeffrey M. Hartman]

jhThe fields of education and medicine are distinct, yet bound by certain parallels. In particular, litigation has shaped present practices in each field. Case law has expanded the rights of students and parents while increasing protections for patients. Resulting improvements in the quality of education or health care vary depending on perspective.

Of greater certainty is the comparable increase in procedures, protocols, and overall bureaucracy needed in each field as a result of litigation.

Compensation Culture

Throughout the 1980s and 1990s, a perceived rise in civil cases led some pundits to ascribe a compensation culture to certain segments of America. Sensationalistic stories about plaintiffs seeking outrageous damages generated concern that this compensation culture was real and threatening to business interests across the country.

Media outlets frequently portrayed those behind the questionable suits as poor but entitled people looking to take advantage of tort law for personal gain. Pundits claimed these cases represented a decline in personal responsibility matched by an increase in shameless greed. At the same time, the notion of frivolous litigation creating unnecessary layers of bureaucracy took hold in the American conscious and remained there.

Predatory Litigation

The actual incidence and impact of supposedly predatory litigation remains debatable. Some civil liberties advocates suggest American companies created smear campaigns in the media to make the issue appear more prevalent than it was while attempting to curtail future suits. Without question, some companies have had to pay significant damages, particularly in class action cases.

However, the claims against these companies typically haven’t materialized without cause. Tort law always has existed as a protection. A few plaintiffs and attorneys may have exploited these laws and others may continue to do so. Such exploitative cases haven’t outnumbered cases built around legitimate claims.

Ethics

Questions about the ethics and even the prevalence of civil suits are the stuff of legal philosophy. The more immediate question is whether or not such cases have impacted particular fields and if so, what has been the nature of the impact. Legal precedents often lead to regulation of industries. Some forms of regulation can alter business practices. This can be for the better of all involved. Even if regulation increases costs, it often improves safety or quality.

In fields such as education and medicine, litigation has profoundly influenced practices. Influence on quality is another matter.

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education

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Education

The impact of litigation on education has been most apparent in special education. Class action suits resulted in the foundational special education law in America. Case law continues to establish precedents and corresponding mandates that states and school districts must follow. Many of the cases parents bring against districts stem from these districts struggling to abide by demanding mandates. Large districts retain teams of attorneys who spend a disproportionate amount of their time handling special education cases. Special education bureaucracy requires many schools to employ administrators who deal solely with compliance and protocol. In special education, litigation has led to more litigation.

Special Education

Special education litigation affects school practices in several additional ways. Compensatory education losses in special education pull from overall budgets. Teachers need to compile data on special education students not just for planning, but to protect themselves and their schools in disputes with parents. School members of IEP teams construct programs from the perspective of how readily they can defend themselves should a legal case develop. Decisions about goals for students are often based on the likelihood of students appearing to make progress in a way that prevents potential conflict. When lawsuits do emerge, school districts have demonstrated a historic willingness to settle and give parents what they want rather than getting involved in lengthy and costly legal battles.

Medicine

In medicine, public perception of the effects of litigation are somewhat skewed. Malpractice cases make for attention-getting headlines. However, the number of malpractice suits has decreased in recent years. The average amount for damage claims has leveled off as well. These cases tend to be reserved for incidents involving serious injury and death. Although this might seem counter-intuitive, plaintiffs often lose malpractice cases. Preventable mistakes still account for a massive amount of loss in medicine, but the public perception of malpractice suits driving up insurance costs isn’t exactly accurate.

Malpractice Liability

This isn’t to say litigation has had no effect. Some health care professionals have had their careers upended by ruinous malpractice suits. A few states have enacted damage caps to limit what plaintiffs can claim. Expensive malpractice insurance has become ubiquitous for health care professionals. Many physicians have been suspected of practicing defensive medicine, or over-diagnosing for their own protection from suits. Defensive medicine resembles the tendency of special education teachers to write IEPs that ensure student progress. Layers of bureaucracy weigh on health care systems. Much of this exists as liability protections. Again, this parallels how schools have to handle special education.

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Improvements?

So, has litigation improved either field? In education, programs for students with special needs have expanded opportunities for equitable education. The expansion stems directly from litigation. However, special education has not solved the dearth of opportunities waiting for students with special needs after high school. At the same time, the expense of special education—including the continuing need for defense against further litigation—mires the most vulnerable school districts.

Health care has improved in many ways in recent decades, but most of these improvements are tied to technological advancements rather than litigation. Technological innovations also have contributed to increases in costs. The surge in bureaucracy does more to protect health care systems than patients, but patients have indirectly benefitted somewhat from the precautions litigation has made necessary. Patient behavior continues to drive the incidence of illness, but widespread health education campaigns have made some impact in behaviors such as smoking. Litigation has aided the creation of such public campaigns through pressure on lawmakers.

Imperfect Analogues

Education and medicine aren’t perfectly analogous, so certain comparisons can’t be made fairly. Despite differences, each field has had to respond in similar ways to changes in society. Pressure from litigation is just one of these changes. Other changes have involved how each field interacts with the public it serves. Schools and hospitals have increasingly become de facto social service providers for needy communities. Educators and physicians have had to become wary of their reputations via online ratings sites and their presence in social media in general.

Experts in both fields have their positions challenged by what information parents and patients find online. These similarities might be more analogous than similarities wrought by litigation.

Although the effects of litigation have been different in the two fields, the response in each field has been noteworthy. Litigation more or less created special education. The burgeoning field has improved equitable opportunities while creating logistical quagmires for schools. Outcomes for students have been limited by factors schools can’t control, thus derailing some of the idealistic aims of litigation. Poor outcomes haven’t lessened the burden special education law places on schools.

Meanwhile, public perception of how malpractice has affected medicine differs from the actual effects. Litigation has affected physician practices more than it has affected costs. Patient care has improved through technology more than through legal mandates. Protections have improved vicariously through the threat of litigation, but this might be inadvertently affecting how physicians offer treatment.

Assessment

Overall, litigation has complicated each field by adding layers of protective bureaucracy. Improvements in quality might not be commensurate with the effort expended. Often what the public gains in protection is loses in simplicity and effectiveness. These fields exemplify this maxim.

ABOUT

Jeffrey M. Hartman is a former teacher who blogs at http://jeffreymhartman.com/

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RISK MANAGEMENT, LIABILITY INSURANCE, AND ASSET PROTECTION STRATEGIES FOR DOCTOR AND ADVISORS

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Skills Needed

If you are a physician, nurse, accountant, attorney, medical risk manager or healthcare executive, we need you.

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Medical Practice and Health 2.0 Risk Management is Now a Part of Financial Planning for Doctors

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About Us

Our ME-P Editor, Dr. David Edward Marcinko MBA CMP™, is a nationally recognized healthcare financial and business advisor to physicians, clinics, hospitals and medical practices. Based in Atlanta Georgia, as a Certified Medical Planner™, Dr. Marcinko leads the industry delivering expert financial and managerial advice to all healthcare entities and stakeholders regarding managed care contracting, operations, strategic planning, revenue growth, health 2.0 business modeling and physician litigation support.

Dr. Marcinko is a sought-after author and speaker with three-decades of expert healthcare consulting experience. He has authored hundreds of healthcare business, finance, economics and management articles and dozens of text books. He is a chosen speaker among prominent national healthcare groups and financial services associations.

Committed to addressing the needs of each client, Dr. Marcinko and the iMBA Inc team takes great pride in personally leading every consulting team that produces effective response time and measurable results for satisfied colleagues and corporate clients www.MedicalBusinessAdvisors.com 

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Educational Inititatives

That’s why the R&D efforts of our governing board of physician-directors, accountants, financial advisors, academics and health economists identified the need for integrated personal financial planning and medical practice management as an effective first step in the survival and wealth building life-cycle for physicians, nurses, healthcare executives, administrators and all medical professionals.

Now – more than ever – desperate doctors of all ages are turning to knowledge able financial advisors and medical management consultants for help. Symbiotically too, generalist advisors are finding that the mutual need for extreme niche synergy is obvious.

But, there was no established curriculum or educational program; no corpus of knowledge or codifying terms-of-art; no academic gravitas or fiduciary accountability; and certainly no identifying professional designation that demonstrated integrated subject matter expertise for the increasingly unique healthcare focused financial advisory niche … Until Now!

Enter the Certified Medical Planner™ charter professional designation www.CertifiedMedicalPlanner.org

Assessment

And so, for all financial services professionals interested in the fast-moving healthcare advisory space: Medical Practice and Risk Management is Now a Part of Financial Planning for Doctors

Certified Medical Planner

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The Emerging Discipline of “Slow Medicine” and Professional Liability

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Examining the Heuristic Relationship between Face-Time and Medical Negligence Lawsuits 

By Dr. David Edward Marcinko MBA CMP™

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[Editor-in-Chief]

Our colleague and blogger Kent Bottles MD has been thinking and posting about the emerging philosophy of “slow medicine”. Of course, health economists realize how complex and difficult it is to transform American health care so that we will enjoy lower per-capita costs along with increased medical care quality in our lives. Unfortunately, grass root practitioners have done just the opposite these last two decades or so. In other words, practicing “faster medicine” with assembly line efficiency relegating office visits to 15, 10 or even 7 minute increments etc, in order to compensate for diminishing MCO/HMO reimbursement. And, this may have been a financially acute perspective for modernity until now!

Defining the Obvious

Slow medicine is practiced by a small, but growing subculture whose pioneer and spokesperson is Dr. Dennis McCullough, author of the book My Mother, Your Mother [Embracing “Slow Medicine,” The Compassionate Approach to Caring for Your Aging Loved Ones].

In other words, slow medicine is a philosophy and set of practices that believes in a conservative medical approach to both acute and chronic care. However, I believe there may be more to it than first perceived.

Link: http://www.thehealthcareblog.com/the_health_care_blog/2010/12/slow-medicine.html#comments

My Experiences

After serving as a medical expert witness in hundreds of malpractice cases [consulting, chart review, discovery depositions, trial appearances and sworn testimony] – both directly and indirectly and for both plaintiff and defendant doctors [predominately] – thru almost twenty year of private practice, my gut tells me the following:

“Patients do not sue doctors they personally like – they do sue doctors they do not like.”

In my opinion and experience, great clinical doctors are often sued while their lesser adept souls are not. Moreover, I believe this pleasing reduced liability relationships is enhanced by more patient face-time; not less. This is not a function of competency, but one of human relationships and “connectedness” with one’s caregiver. It will not be changed by eMRs, or more diagnostic tests [malpractice phobia] or procedures. It will be improved by intense physical examination, touching, eye contact, sympathy, empathy and time [aka: a TRUSTING relationship and pleasing bedside manner forged by TIME]. Period!

And so, for our business managers, CEOs and medical executive readers, let us compromise on terminology and call it “slower medicine.”

Assessment

Link: http://www.amazon.com/Insurance-Management-Strategies-Physicians-Advisors/dp/0763733423/ref=sr_1_3?ie=UTF8&s=books&qid=1275315795&sr=1-3

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SOAP[IER] eMRs [Beware the Alphabet Soup Switcher-Roo]

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Medical Records not a Reflection of Reality – Are Reality Itself

[By Dr. David Edward Marcinko; MBA, CMP™]

[By Hope Rachel Hetico; RN, MHA, CMP™]

Now more than ever, inadequately documented medical charts can mean civil and criminal liability to the sloppy and/or unwary practitioner.

Medical records were previously used to aid in the quality of medical care. Today, they are also the basis for payment for services, not as a record or reflection of the care that was actually provided, but as a separate justification for billing.

History

As little as a hundred years ago, detailed medical records were likely to have been compiled by medical researchers such as Charcot and Hughlings-Jackson. The medical record was an “aide memoire” for detecting changes in patients’ conditions over time, solely for the benefit of the physician in treating the patient.  As health care became more institutionalized, medical records became a communications device among health care providers. A centralized record, theoretically, allowed all to know what each was doing.  The ideal was that if the doctor were unable to care for the patient, another physician could stand in his or her shoes and assume the patient’s care.

Payer Pressures

Then, according to our friend and colleague William “Duffy” LaCava PhD Esq, came pressure from third party payers. As insurance and government programs became larger players in the compensation game, they wanted to know if the care they were paying for was being delivered efficiently. Though the real push behind these questions was the desire to save money, utilization review also directly contributed to better patient care.

Utilization review however, was mainly retrospective; denial of compensation was rarely imposed, and suasion by peers was the main effector of change. Though “economic credentialing” was shouted about, it rarely showed itself in public. Even managed care which openly admitted economic incentives as one of its motivators, preferred to find some other reason for deciding not to admit Dr. Jones to its panel of providers or not renewing Dr. Smith’s contract with the MCO. The medical record remained essentially a record of patient care which was good or not, efficient or not. If the record wasn’t complete, the doctor could always supplement it with an affidavit, use information from somewhere else, or provide explanations.

A Paradigm Shift

This nearly complete change in function of the medical record had precious little to do with the quality of patient care. To illustrate the point, consider only an office visit in which the care was exactly correct, properly indicated and flawlessly delivered, but not recorded in the office chart. As far as the patient was concerned, everything was correct and beneficial. As far as the third-party payer is concerned, the bill for those services is completely unsupported by required documentation and could be the basis for a False Claims Act charge, a Medicare audit, or a criminal indictment.

IOW: We have left the realm of quality of patient care far behind in the current e-medical record debates.

An Attitude Shift

In this contemporary age [circa 2010 and beyond], medical practitioners must adjust their attitude to the present function of patient records. They must document as required under pain of punishment for failure to do so. This new reality is infuriating to many doctors since they still cling to the ideal of providing good quality care to their patients and disdain such requirements as hindrances to reaching that goal. They are also aware of the fact that full documentation can be provided without a reality underlying it.

So, in the modern era of eMRs; some doctors think … and frustratingly say outright: “Fine, you want documentation?  I’ll give you documentation!”  Hence e-MR diarrhea!

APSO needs to replace SOAP in eMRs?

But, according to Dr. Ed Pullen, writing for the Health Care Blog www.TheHealthCareBlog.com,

Consultants have known for years that their referring physicians do not want to look through the entire history and physical exam documentation to get to the assessment and plan. Most consultants make notes to their referring physicians with the Impression and Plan/Recommendations at the top. . 

So, now the entire legal world knows that referring physicians do not want to look through the entire history and physical examination documentation to get to the medical assessment and treatment plan. WOWSA! As the patient, how would you feel about this statement? Furthermore he states that:

When a physician reviews a prior progress note, the information they usually want to see the assessment and plan.  Much less often they need to know the details of the patient’s history, examination, review of systems, etc. In a paper chart it is just a movement of the eyes to find the desired part of the note, and it makes little difference whether the needed information is on the first few lines, or at the end of the note.  The traditional progress note format is the SOAP note: Subjective history first, Objective information like vital signs, physical exam and test results next, Assessment including the diagnosis and documentation of the thought process and decision making third, and the Plan of treatment last.  This reads in a logical fashion, and has become the standard format in most paper patient charts.  In an EMR note reviewed on a computer monitor, the traditional SOAP note simply does not work.  The history of present illness, past medical history, family, and social history, and review of systems, and physical exam more than take up the available space on a monitor. 

To which we agree as the traditional SOAP format of medical charting was developed by Dr. Lawrence Weed in 1968. More formally, it is known as the Problem Orientated Medical Record [POMR]. However, the concept was updated about 20 years ago by adding the extension SOAP[IER], which may work a bit better:

I = Intervention
E = Evaluation
R = Revision

Of course, nurses know this, but doctors still may not. Or; they know but do not execute – a much graver offense.

On the APSO Format

Ed further states that:

Simply making an APSO note instead of a SOAP note, i.e. putting the Assessment and Plan first, and the Subjective history and Objective information later can make reviewing notes much more efficient.  This simple change can be done easily in most eMRs, and just requires thinking about the different work process using a computer monitor to look at information.

Note: APSO = Assessment, Plan, Subjective and Objective

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So, Let’s Change the eMR – But Not Bad Physician Behavior?

Well maybe; maybe not! The thought process here seems to be that if the physician behavior is wrong [not reading the entirely legible e-note], let’s change the electronic algorithm instead. To which we say, let’s change bad physician behavior; or doctor – PLEASE READ THE DAMN NOTE.

eMRs – A Malpractice Litigator’s Dream

Regardless of the above, whether electronic medical records will be more helpful, or even read and reviewed in the future, is still not known. Nevertheless, it is at best naive and more frequently closer to a death wish to think that an unscrupulous practitioner can beat the system, with handwritten notes; computer generated records, or fabricated eMR documentation. And, we do politely disagree when Dr. Pullen opines that:

eMRs also can easily make a document that does a good job of producing a document that can stand up to legal scrutiny. Although there is little data to prove it, some experts believe use of an EMR can reduce liability.

In fact, after serving as expert medical witnesses thru three decades, beginning during the early digital medical records revolution, we believe that eMRs will actually increase medical liability as astute plaintiff attorneys and skilled litigators portray them as canned, automated and robotic notes – not at all relative to the real patient. We’ve seen it before, and it will successfully happen again, as sympathetic jurors buy the argument – en mass.

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For example, we can just imagine a sly attorney admonishing the lay jury–

“My client, Mrs. Smith, is a human being – a patient – she is not an electronic template. Like you, she exits in the real world, not the virtual world of manipulated bits and fabricated electronic bytes. And, by the way doctor, did you even read the notes. After all, according to Dr. Ed Pullen, consultants have known for years that their referring physicians do not want to look through the entire history and physical exam documentation to get to the assessment and plan.   

Of course, like some other experts, we also believe that eMRs actually hinder the patient-physician relationship and communication channel.

http://www.kevinmd.com/blog/2010/03/emr-conversion-physician-communication.html

Assessment

MD-TraderIn almost an ironic return to the original reason for medical records, False Claims Act suits have been maintained on the basis that the care actually provided to patients was not good enough in quality to justify the claims being submitted. In other words, if the care provided fell below the standard of care provided, not only did the practitioner commit medical malpractice, but he or she also submitted a false claim!

Therefore, always remember that medical records are not a reflection of reality – they are the new reality [personal communication “Duffy” LaCava].

Conclusion

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Will eMRs Raise the Legal Standard of Care and Increase Malpractice Risk?

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Focus on Malpractice and Professional Liability

By Ann Miller; RN, MHA

By Dr. David E. Marcinko; MBA

[Executive Director]

We first postulated on this topic in our print book “Insurance Planning and Risk Management for Physicians and their Advisors.” Additional posts and comments are contained within this ME-P.

And now, Robert J. Mintz, JD wonders if medical provider liability increases with eHRs, even if the quality of care is vastly improved?

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Conclusion

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Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™ Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™

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Medical Malpractice Trial Types

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Understanding the Litigation Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

There are two types of trials, trial by jury and trial by judge. It is the task of the judge to determine the law, while the jury determines the facts.  In a trial by judge—called a “bench” trial—the judge determines both the law and the facts.  The U.S. Constitution guarantees a trial by jury.  If a party does not request a jury trial, however, the right to a jury trial can be waived.

The Statistics

Most civil cases in the United States are tried by jury.  Of the 3 percent of all cases that go to trial, the Department of Justice reports about two-thirds are jury trials, and one-third are bench trials. Whether to try a case to the judge or to a jury is strictly a matter of choice by the litigants.  If either party timely requests a jury trial, however, the case must be tried to a jury.  Because of the constitutional implications, in most cases both parties must waive their right to a jury trial in order for the case to be tried to a judge.  In a few instances, such as trials for injunctions and family law matters, a jury trial is not an option and a judge must hear the case.  However, the majority of civil issues offer the litigants a choice between bench or jury trials.

Notions and Perceptions

So why would anyone choose to have a case heard by a judge as opposed to a jury, or vice versa?  The reasons are mainly based on preconceived notions about judge and juror biases.  Generally, most litigants favor a jury over a judge because the decision is put into the hands of many rather than in the hands of one.  Plaintiffs usually like juries because lay individuals are believed to be more sympathetic, and a plaintiff can appeal to the emotions of a jury.  Conversely, defendants usually prefer bench trials because a judge is thought to be more objective in deciding a case.  Requesting a bench trial can also result in a much quicker trial date.  Since court dockets in most large cities are becoming increasingly congested, the time difference between a jury trial date and a bench trial date can be literally years.

Assessment

None of the perceptions about the benefits of a jury trial or a bench trial apply to all situations—every case is different.  There is at least some empirical evidence that some of the commonly held conceptions about bench and jury trials are actually misconceptions.  For example, while it is almost universally believed that juries tend to favor plaintiffs and award much higher monetary amounts, a recent study by the Department of Justice suggests that judges favor plaintiffs and return higher verdicts.  Still, jury trials outnumber bench trials by about two to one [1].

Conclusion

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[1] See Civil Jury Cases and Verdicts in Large Counties, Civil Justice Survey of State Courts at: http://www.usdoj.gov/bjs/abstract/cjcavilc.htm.

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Securing Medical Professional Liability Insurance Coverage

Tips for Doctors Looking for Malpractice Insurance

By Dr. David Edward Marcinko; MBA, CMP™

[Publisher-in-Chief]

dem2The following are buying tips for healthcare professionals who are shopping for medical professional liability insurance coverage:

** Shop well in advance of your renewal or expiration date. Your agent should have all of the necessary information to the insurer at least six to eight weeks before your coverage expires.  See below for more tips and  the type of information your agent will need.

** If you do not know an agent who can place your coverage, the Bureau of Insurance has a list of agencies that are licensed and appointed with at least one of the insurers on the Bureau’s list of “Insurers Writing New Business for Physicians and Surgeons.”

  • Contact one or two agents and be sure to ask each agent which insurer will be contacted for a quote. Ask the agent if an application will also be submitted to a surplus lines broker.  If so, ask for the name of the surplus lines broker and ask which surplus lines insurers will be contacted.  Provide this information to the other agent to avoid multiple applications being submitted to one insurer from different agents.  If the application is being submitted to a surplus lines broker, be sure to ask the agent for information on the coverage provided and specifically request information on exclusions.
  • If the agent recommends coverage through an unlicensed company (such as a surplus lines insurer or a risk retention group), be aware that, in the case of insolvency, the insured will not have coverage through the [State] Property and Casualty Insurance Guaranty Association.  However, if the healthcare professional has had several claims or an open claim, they may only be able to obtain coverage through a company not licensed in their state.
  • Ask the agent for information on the financial rating of the company and if the surplus lines insurer has its own guaranty fund.  Also, if shopping, the medical professional should feel free to check with the Insurance Bureau of their respective state to see if the company and agent are licensed or authorized to do business.
  • The agent should fully understand the healthcare professional’s business.  If incorporated, ask the agent what coverage is needed to protect the corporation as well as any individual doctors.
  • Ask the agent about the availability of “tail coverage” or if the new insurer will provide coverage for “prior acts.”  If coverage is offered with two insurers, ask the agent what each insurer charges for “tail coverage.”  This information may help in deciding which insurer has the most competitive price.
  • Complete the application for coverage in its entirety.  Don’t omit any information and be sure to provide as much detail as possible, especially about prior claims.  Many insurance companies want 10 years of information.  They may also request information about any risk management practices and procedures.
  • Discuss deductible options with your agent.  These may help lower your premium.
  • Find out if the insurance company offers any risk management or loss prevention programs.  Such programs may lower the premium and help reduce exposure to losses.

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Assessment

The author has been an expert medical witness in both state and federal court. He is a former licensed insurance agent and certified financial planner, advisor and consultant.

Conclusion

And so, your thoughts and comments on this Medical Executive-Post are appreciated. Have you ever considered a more modern liability coverage method, such as an RRG, etc?

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Advisor’s Checklist for Physicians Seeking Insurance

Background, Education, and Certifications

By Dr. David Edward Marcinko; MBA, CMP™

Publisher-in-Chiefdem22

The following are sample questions and information gathered for Professional Liability Coverage

The Checklist

**Medical specialty information by percentage of practice.

**Information on medical education, including information on medical school, internship information, residency information, and fellowship information, if any.

**Information on medical experience, including information on military discharge (DD214), public health service, moonlighting, ‘locum tenens’, and private practice information. Have dates and locations available. Other information includes:

  • Information on completed continuing education hours in the past two years.
  • Publications, speeches, instruction, etc.
  • Information on medical licenses, including state, license number, expiration dates, and current status.
  • Information on board certifications.
  • The above information may be contained in a Curriculum Vita, if you have one.
  • On an “as applicable” basis:
  • Complete details including dates and outcomes of any board certification revocations or suspensions, license revocations or suspensions, alcohol or drug addictions and treatments, criminal or sexual misconduct charges, or Medicare or Medicaid charges.
  • Previous Insurance Information
  • Insurance history, including the name, policy number, whether the coverage form was occurrence or claims made, policy period, limits of liability, deductible amount, and prior acts date, for your current carrier, and your first, second, third, and fourth prior carrier, if applicable.
  • Information on any insurance company cancellations or non-renewals.
  • If your current policy is a claims-made policy, whether you are obtaining tail coverage from your current insurance company.
  • Copies of prior policies, if available.

Current Medical Practice Information

  • Information on supervision and employment of residents, physician assistants, nurse practitioners, CRNAs, nurse midwives and other physicians;
  • Information on networks or managed care organizations associated with (IPA, PHO, MSO, etc.), including group name, type of organization, and relationship;
  • Information on other contractual relationships other than PPOs, HMOs, IPA, etc;
  • Full information on all hospital privileges, including hospital name, location, and type of privilege.
  • Information on any suspension, denial, revocation, restriction, or other sanctioning of hospital privileges.

Classification and Specialty Identification

Full information on procedures performed, including details of surgeries, average number of patients seen weekly, specialty practice areas, etc.

Prior Claims History (if any)

For each claim, patient’s name; date of occurrence; insurance carrier; location of occurrence; date claim was reported; date claim was closed (if applicable); copies of subpoenas, pleadings, or judgments; amount reserved on your behalf; and amount paid on your behalf.  Provide as complete a description of the allegations as possible.

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Important Note

This checklist is provided as a guide to assist the Healthcare Professional in gathering the information that insurance companies typically request.  Discuss this checklist with your agent to identify additional information as needed.

Assessment

The author has been an expert medical witness in both state and federal court. He is also a former licensed insurance agent and certified financial planner.

Conclusion

And so, your thoughts and comments on this Medical Executive-Post are appreciated.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com  or Bio: www.stpub.com/pubs/authors/MARCINKO.htm

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Updating the Doctor’s Business Insurance Portfolio

Most Medical Practitioners Lack Adequate Coverage

By Dr. David Edward Marcinko; MBA, CMP™

By Professor Hope Rachel Hetico; RN, MHA, CMP™

[ME-P Publisher and Managing Editor]dave-and-hope1

Good insurance coverage—especially property and liability insurance—is essential for private independent medical practices. And, malpractice insurance is a separate beast; altogether. But, far too often, experts from the Institute of Medical Business Advisors Inc. find that doctors sign standard “form” contracts, and review only the section in which premiums are discussed.

www.MedicalBusinessAdvisors.com

Overlooked Issues

Here, we outline some critical but frequently overlooked issues that financial advisors may want to discuss with their doctor clients; or that physicians might consider want to consider themselves:

• Coverage: Most property is insured for the appraised value or cost. The appraisals however, are often less than the actual cost of replacement. Rather, the office and other critical property should be insured for their full replacement or cash value (replacement cost less depreciation). Replacement value has little relationship to typical insurance valuations.

• Upgraded values: When replacing old instruments or equipment, medical practices are purchasing “next generation” equipment. But in many cases, the proceeds from replacement value insurance do not cover the full purchase prices of upgraded equipment. Doctors can protect themselves against shortfalls in replacement costs with policy riders known as functional replacement endorsements. In essence, when the old equipment is superseded, functional replacement allows for the costs of purchasing the available, upgraded equipment.

• Business interruption insurance: Medical practices need adequate income protection in the event of a fire or other disaster. Business interruption insurance provides doctors with income disaster relief. With this type of insurance, revenue projections must be made and updated periodically. It is advisable to enlist a qualified insurance broker, agent or counselor because the language in this type of policy can be difficult to decipher.

• Business continuation: Medical practice business interruption insurance ends 30 days after the property is replaced. However, it may take doctors much longer to get back to business as usual. An extended period of indemnity rider allows businesses additional time for disaster recovery. The additional period is often a full year.

• Off-the-premises insurance: Sometimes medical office property damage can be caused by a problem off the premises, such as a power disruption. If a practice does not have off-premises direct damage coverage, it will not be insured for damage to equipment caused by the loss of electricity, which may, in turn, have been cause by a storm. So it’s often helpful to insure for this type of damage—as well as loss of water and telecommunications.

• Exclusions: Insurance policies often contain strange exclusions: Property is damaged because a boiler explodes, but boiler malfunction is excluded from coverage in the property insurance policy. Many business owners and doctors are unaware of this. All policies should be carefully reviewed for exclusions.

• DME Inventory: Without a rider, insurance typically covers only the cost of the durable medical equipment, goods or related inventory, not its selling price. It may be, however, that an extended wait for the materialization of profits presents a hardship for the practice. If a doctor wants additional protection to cover the sales price of damaged inventory, a selling price endorsement rider is needed.

• Safety codes: If a practice’s building was purchased many years ago, coverage for compliance with current and more stringent safety codes is essential. This is called an ordinance or law endorsement, and it covers the cost of restoring damaged property in a manner that complies with current safety ordinances.

• Data processing and IT rider: Electronic data processing and health information technology coverage riders cover offices for the full cost of replacing lost hardware and software. They also protect against the loss of practice income from disruptions in billing or services.

• Supplier damage: If a medical practice is closed down because a major supplier sustains significant property damage, medical offices may have no means to cover the loss. A contingent business interruption insurance rider protects the physician-owner from a loss of income.

• Worst case scenario: “Worst case scenario” coverage is available, but sometimes requires a customized amendment to provide adequate medical practice insurance coverage.

• Earthquake and Flood Insurance: Protection against earthquake and flood damage may also be desirable. Many offices are surprised to learn they are in earthquake zones. Everyone knows about it in California, but Massachusetts has a number of earthquake zones as well.

Disclosure: Both authors are former financial advisors and licensed insurance agents.insurance-book

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Assessment

Medical professionals should sit down with their consultants and advisors and review their levels of insurance coverage to make sure they have adequate protection. It is also important to ensure that their coverage suits their circumstances—and they are not paying for something that might not be appropriate for their specific situations.

Conclusion

And so, your thoughts and comments on this Medical Executive-Post are appreciated?

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Risk Management: It’s Not All About Medical Malpractice Anymore

Book Review

By Murray J. Goodman; MD

In the narrow world of our day-to-day practice, orthopaedic surgeons often think of risk management strictly in terms of avoiding exposure to medical liability lawsuits. But, in the book Insurance and Risk Management Strategies for Physicians and Advisors, author, physician, and healthcare economist David E. Marcinko has assembled a cadre of experts who address the broader issue of risk management.

Link: http://www.amazon.com/Insurance-Management-Strategies-Physicians-Advisors/dp/0763733423/ref=sr_1_3?ie=UTF8&s=books&qid=1217606361&sr=1-3

15 Chapter Overview

This book examines the many important risks that we, as physicians, face daily in the practice of medicine. You may not think of life insurance, sexual harassment, Medicare fraud, marital divorce, and privacy issues as part of a risk management plan, but they are. Dr. Marcinko has written a book that provides an initial reference point for these diverse issues.

Each of the 15 chapters covers a single area, providing a broad overview as well as specific information and recommendations. This book addresses the personal, professional and business risks physicians face on a daily basis.

Personal Insurance Matters

The personal side of insurance is first, beginning with a discussion on insuring the doctor’s life. The chapter explains the various types of policies available, as well as various permutations and combinations of policy provisions. It briefly discusses both health insurance and long-term care insurance. It includes the critical features to look for in selecting a long-term care policy for yourself and the necessary criteria for successfully filing a claim under such a policy.

Practice Insurance Matters

Many orthopaedic practices are also small businesses, so property insurance and the business uses of life insurance, such as in buy-out and succession planning, are covered. The author reviews the use of restrictive covenants and employment contracts, providing examples of what works and what does not. One of the questions this chapter addresses is the difference in applicability between a restrictive covenant with regard to a departing employed physician and a restrictive covenant included in the sale of a medical practice.

Compliance Topics and Medical Workplace Regulations

Recent actions by the Department of Justice [DOJ] and activities of the Office of the Inspector General [OIG] regarding Medicare have focused attention on compliance issues. The text provides a good overview on medical documentation and healthcare compliance, including a summary of record-keeping obligations.

In addition, the author includes pointers on how a medical practice can avoid running afoul of the federal False Claims Act, fraud and abuse statutes, Stark and safe harbor laws, and the “alphabet soup” of HIPAA, OSHA, and ERISA regulations. Risks involved with serving as an expert witness, doing peer review and taking call are also covered. The discussions are as timely as those sponsored by the AAOS. The chapter on medical malpractice even includes a discussion of physician self-regulation and expert witness discipline.

Sexual Harassment Issues

The section on sexual harassment explains what constitutes a hostile work environment and what the physician’s role should be in risk avoidance. Complimenting an employee’s dress or telling a slightly off-color joke may seem innocent enough, but not if they meet the two criteria that determine offensive behavior and can lead to a lawsuit. Violence in the workplace is discussed as it relates to patients and employees, both as perpetrators and as victims. The author recommends that every orthopaedic practice have a policy and a plan in place to deal with these issues should they arise.

Malpractice Liability and Going to Court

One-quarter of the book is devoted to medical liability risks. Although the discussion of the medical liability crisis might be a bit dated and only too familiar to many readers, the section on the anatomy and procedures of a medical liability trial and the physician defendant’s role in that process is excellent. From subpoena to verdict, the process is laid out. Written by a malpractice attorney who is also a physician, the chapter provides solid advice on how to respond to the subpoena, secure the medical record [make an exact copy and seal it], and find personal counsel.

Pre-Nuptial Agreements, Divorce and Asset Protection

The financial risks of divorce are rarely covered in books geared to medical professionals, but this text examines them in detail. It also discusses prenuptial agreements and the special circumstances surrounding older divorcing medical professionals. Final chapters cover asset protection principles and how to select insurance and financial advisers who specialize in serving medical professionals.

Recommended Reading

Each chapter is authored by an expert in that particular field, but the text has a uniform consistency and approach, listing basic principles and citing specific examples to illustrate the issues involved. Ample references are provided, including written texts and articles, case law, and Internet Web sites. The table of contents is functional, and the index is well-organized for quick reference.

Insurance and Risk Management Strategies for Physicians and Advisors[Jones and Bartlett Publishers, Sudbury, Mass] is a comprehensive examination of risk management strategies. It does not provide specific legal or financial advice, but it does provide a background in many areas germane to the practical aspects of maintaining a medical practice in this millennium. Although not a stand-alone text, it gives the reader the vocabulary and information necessary to take many of these issues to the next level.

Assessment

“This book is recommended reading for those about to enter the practice of medicine; those already in practice will find it a helpful reference when seeking resources on a particular issue”.

Personal

My wife tells me that because it also addresses the personal and emotional issues affecting physicians’ lives, it is suitable for spouses as well.

Note: Murray J. Goodman, MD, is a member of the Medical Liability Committee. He can be reached at mj-goodman@comcast.net June 2008 AAOS Now http://www.aaos.org/news/aaosnow/jun08/managing2.asp

From the article of the same title AAOS Now (06/08) Goodman, Murray J.

http://www.asoa.org/resources/practice-mgmt-news/practice-management-news.cfm

Conclusion

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