By James W. Saxton, Esq. and Maggie M. Finkelstein, Esq.
The national healthcare reform legislation passed in March 2010 is comprehensive and could have a profound impact on the delivery of health care services. The Patient Protection and Affordable Care Act (signed into law on March 23, 2010) and Health Care and Education Reconciliation Act of 2010 (signed into law on March 30, 2010) (Collectively “PPACA”) is far reaching. Its impact is already being felt by healthcare providers nationwide, with implementation of the Act’s requirements to continue through 2018 (although most that would impact healthcare providers will be in place by 2015). The new measures and requirements bring a new and different environment for physicians: Accountable Care Organizations, increased reliance on mid-level providers, more patients, changing reimbursement methods, data collection, and are just the beginning. With these changes comes some new physician liability risk and, as always, we encourage physicians to be proactive.
With more patients and increased requirements for prevention, screening, and monitoring, healthcare professionals need to move towards true patient accountability. Prevention and ongoing screening cannot be truly achieved without the involvement of the patient. Patients need to become more responsible for their health.
Data is clear that patients do better when involved with their own care; however, for various reasons, patients do not always adhere to physician care plans. In the new environment, you can expect to see more of this within the new 32 million insureds that will be seeking care.
You have always had some of these tools in your “risk mitigation toolbox”: At-risk letters; anti-abandonment letters; informed refusal forms; and informed consent forms. The tools help to not only assure that the patient is making informed decisions about their health care (what they do or do not do) but also helps to document that process (which can reduce liability exposure). With the new environment, it is time to fortify those efforts and to adopt new strategies to enhance true patient accountability.
New strategies and tools include:
- New policies and protocols (For example, missed appointments)
- New forms and strategies (For example, spousal consent for surgical procedures)
- Addressing written patient care plans (For example, physician office written discharge instructions)
- Using technology (For example, using email communication)
Following are two examples:
For example, Missed Appointments: When patients do not follow through in keeping appointments (annual appointments, sick visit appointments, referrals, and lab testing appointments), it increases risk to patient health and increases physician liability exposure. You know this scenario: The physician says, “Get another pap in 6 months.” The patient does not. When this happens, you can be held responsible. In efforts to first enhance patient compliance with appointments at the same time that you appropriately provide notice to the patient of his or her responsibility, incorporate a new patient missed appointment policy. Make it clear it is the patient’s responsibility to schedule and keep appointments. Also, make it clear what the potential implication may be from not being the good partner (as a patient) they need to be. Require patient signature to verify understanding and responsibility. Provide the patient with a copy; and use the document to enhance your at-risk patient/letter process, as more evidence to support any needed patient termination from the practice.
As mentioned, with healthcare reform come new mandates on patient wellness and disease prevention care with a focus on chronic conditions: for example, hypertension, diabetes, smoking cessation, and weight loss. Clearly patient compliance is key to enhanced outcomes. Evidence of physician instruction and care is key to liability risk reduction.
Written Instructions from the Office: Often now, patients who leave their office visit with instructions (to return for Coumadin re-check lab test in 3 days, or to return to call the office is the patient’s pain is not relieved, or instructions on how to take certain medication) must simply remember all of the instructions provided by the office, and further, often, there is no comprehensive documentation that the patient was told and understood the importance of the instructions. An example: Consider the patient whose pap returned abnormal but with normal colposcopy. You recommended follow up pap in 6 months. The patient did not return for 12 months, at which time you did a pap which was returned abnormal, and a later colposcopy was abnormal. The patient now has been diagnosed with metastatic cancer. It is likely that you would be held responsible for the lapse.
It is time to change this process which will not only enhance their compliance, but also set the record straight on this important patient responsibility issue. You could use a specific written template or incorporate this into your EMR. Again, incorporate written patient signature/sign-off of understanding. Begin in the areas of greatest risk that are relevant to your area of practice. In obstetrics, this could be instructions for tracking kick counts where a patient presented with concerns of lack of fetal movement; in bariatric surgery, this could be instructions for post-operative vitamin and supplement intake; in gynecology, this could be instructions on when to return to the office for a colposcopy; and so on. The areas of greatest need will differ with specialties. When identifying the clinical risk area of need, include physicians and staff in the process; also include them in the process of creating such tools.
This is a culture shift. Over the years physicians have culturally accepted a great deal of responsibility in overseeing patient compliance efforts. The responsibility, appropriately, however, should rest, in part, with the patient. They are in the best position to assure compliance takes place. Risk management strategies have been a key factor to the success of a physician’s practice for over a decade now. New factors at play in the healthcare environment, particularly national healthcare reform as mentioned above, makes the need for incorporating strategies to not only reduce exposure but also enhance quality and efficiencies even greater. This will not happen overnight, but why wait?
James W. Saxton, Esq. is Co-Chair of Stevens & Lee’s Health Law Department and Chair of the Health Law Litigation Group, whose practice consists of representing and protecting physicians, medical practices, Centers, and health care organizations in areas of risk management, staff issues, and health and hospital law litigation. Mr. Saxton can be reached at email@example.com.
Maggie M. Finkelstein, Esq. is a shareholder in Stevens & Lee’s Health Law and Litigation Departments, concentrating her practice in representing health care organizations and professionals in developing and implementing risk management and loss control strategies as well as in litigation matters. She can be reached at firstname.lastname@example.org.
 James W. Saxton, Esq. is Co?Chair of Stevens & Lee’s Health Law Department and Chair of the Health Law Litigation Group, whose practice consists of representing and protecting physicians, medical practices, Centers, and health care organizations in areas of risk management and litigation. Mr. Saxton can be reached at email@example.com.
Maggie M. Finkelstein, Esq. is a shareholder in Stevens & Lee’s Health Law and Litigation Departments, concentrating her practice in representing health care organizations and professionals in developing and implementing risk management and loss control strategies as well as in litigation matters. She is a former law clerk to the Honorable William W. Caldwell, U.S. District Court for the Middle District of Pennsylvania. She can be reached at firstname.lastname@example.org.