LEGAL PERSPECTIVE         CONFIDENTIALITY       CONSENT       RISK MANAGEMENT         PATIENT ISSUES    

INTERNET ISSUES       PSYCHIATRIC ISSUES       PEDIATRIC ISSUES       MALPRACTICE   

CONFIDENTIALITY & RETENTION OF RECORDS

Bruce to write intro paragraph here that lets us know what these pages will be about.

CONSENT

Legally speaking, consent is the right of every person to approve or disapprove of any actions taken by a health care provider with regard to themselves or someone for whom they have decisionmaking authority.  “Informed” consent is the right of a patient to be presented sufficient information by his or her physician in order to make an informed decision about his or her health care.  What is “sufficient information?” In Virginia it is what “a reasonable physician or his/her representative” would tell a patient.  You should therefore keep yourself informed as to current practices in your area of medicine and do your best to make sure your patients understand the risks, benefits and alternatives to your proposed procedures.

 

 

RISK MANAGEMENT

 

Risk Management is the process for identifying and managing actual or potential risk exposures in order to minimize the liability presented by such exposures. Also involved in this process is an ongoing assessment of the effectiveness of actions taken to manage risk.

 

A proactive risk management program strives to avoid adverse events before they occur. Prompt reporting of events or concerns regarding potential risk allows for timely investigations and, if indicated, recommendations for change. The goal of risk management is to provide a safe environment for patients and staff and to prevent litigation.

 

Health care providers and office staff participation in the risk management process is essential to an effective program. Significant interaction with patients and their families by nursing and office staff often allows for an accurate assessment of concerns which patients may not be able to express directly.

 

The Piedmont Liability Trust is strongly committed to the prevention and reduction of risk exposures inherent in patient care as part of the University of Virginia’s quality improvement process. This manual is not intended to serve as legal advice nor should information included in this manual be construed as establishing medical standards of care. Reports of concerns regarding actual and/or potential liability should be made through contact with staff at the Piedmont Liability Trust at telephone number (434) 296-2100 or by fax (434) 296-4001. During holidays, a staff member may be reached by calling the main office number and listening for the pager number which is provided in the phone mail message.

PEDIATRIC ISSUES
MEDICAL MALPRACTICE INSURANCE

Piedmont Liability Trust has created a variety of reference materials for clinicians to use as references in their daily practices.

 

PSYCHIATRIC ISSUES

Piedmont Liability Trust has created a variety of reference materials for clinicians to use as references in their daily practices.

 

INTERNET ISSUES

Although the future is now and the Web is currently being used in many aspects of health care in this country, the law is less up-to-date. In fact, the law works slowly and most often settles issues after they have already presented practical problems. Such is the case with health care and the Web. There are some legal issues that are drawing parameters around health care efforts using the Web, and some issues actually causing a roadblock. The issues vary based on how the Web is being used, as well what the end goal of the interaction is. Legal issues range from roadblocks presented by state professional licensure laws for health care providers to the new federal privacy regulations issued by the Department of Health and Human Services (DHHS) pursuant to the Health Insurance Portability and Accountability Act (HIPAA).

Many people as a regular part of their day access the Web. The computer enables one to gather information and/or to talk to strangers or friends regarding a variety of subjects, be they personal or for business. It is not unusual to find health care practitioners using e-mail to communicate with their patients or with other health care providers. The Web is also a great source for medical research, both for the health care provider and for individuals. One of the impacts has been that patients are better informed about their health issues. Clearly the Web offers a tool to greatly enhance communications and information flow to and from patients and physicians.

For many years, health care providers have communicated with colleagues, as well, as patients by telephone. Such electronic communications always required some care. The importance of documenting telephone conversations has often been emphasized. Health care providers giving advice to colleagues over the phone have often been cautioned to avoid giving advice regarding a specific patient that they have not seen and evaluated; and, instead, give general advice shared between peers. The purpose of this is to avoid the discussion being construed as creating a physician-patient relationship with regard to the advice given over the phone involving a patient not personally evaluated. Liability concerns are minimized if no physician-patient relationship can be found.1 This can be a particularly troublesome issue if the consulting physician and/or patient are located outside the state where the advising physician is. Were the physician found to be offering medical advice and/or care to a patient, then issues of practicing medicine (or other licensed health specialty) may arise, in addition to issues of what jurisdiction would resolve any liability issues. These same issues have generated much more attention when the Web is the electronic communication tool rather than the telephone. Whether in providing a consult via telemedicine, responding to a question posed in an on-line chat room or bulletin board on the Web, or using e-mail to communicate with an individual, a health provider may create a health care provider/patient relationship which then raises critical legal concerns. Professional licensure in the state where the individual is located and the jurisdiction for liability are again the two main legal concerns.2 A number of states, including Texas and Kansas, have already dealt with the licensure issue by amending their professional licensure laws and regulations to explicitly provide that a health care provider may not come into their state electronically to provide care unless they are licensed in that state.3 As a result, telemedicine consultation services are most often being done within a given state, or interfacing with another country where a written agreement establishes the licensure and liability issues. To minimize these same legal concerns, many others are attempting to use disclaimers and other express statements to denote that all communications on the Web are educational information rather than medical advice. In doing so, such disclaimers usually include a statement that should the person seeking information have a health condition, he/she should promptly visit their health care provider.

Proposals have been made to create a national system of licensure. The American College of Radiology has put forward a proposal that has received a great deal of attention. The impetus for the draft legislation is to alleviate current licensure roadblocks for teleradiology. However, a system of national licensure is still years away. In the meantime, issues of licensure, and related issues of credentialing continue to create limitations to the use of electronic consultations for health care issues.

 

Other problems are also raised by communications via the computer. For instance, corporations have already discovered problems arising from misunderstandings from e-mail messages. E-mail communications are often more casual and informal than other written communications. As a result, many corporations now caution managers to be particularly sensitive about how and when they use e-mail to communicate. Experience has shown that e-mail messages are often drafted quickly and without careful consideration to the words chosen or the overall tone of the message. Thus, the risk of misunderstanding the intention of the message is increased when using e-mail.4 Moreover, discussions that emanate from the Web (whether someone’s website, a bulletin board, chat room or other site) are frequently between people who have never met. Without a personal or professional relationship, the risk of misunderstanding, complaint and even a lawsuit may increase. It must also be remembered that e-mail, unlike the telephone, leaves a record of your communications. Maintaining a record of your e-mails must be based on an established policy with designated timeframes for retaining e-mail communications. It is also important to recognize that even when you delete a record it may still exist somewhere, whether it be with your internet service provider or on your file server.

 

It is critical to recognize that communications over the Web will generally be treated as public communications that are not privileged or confidential. Without added security protections, general communications whether in the form of an e-mail or discussions in a Web chat room, will not be afforded privacy.5 Further, courts have generally allowed employers to review an employee’s e-mail at work without the employee’s knowledge or consent. The basic premise is that since the employer provides the computer, it is a work e-mail address and underlying system. Thus, the information contained in the e-mail is work product and subject to review by the employer. This lack of privacy creates particular concerns with health care information. One problem is the potential trail of damaging information that may be discovered from computer hard discs, and another, the potential for a breach of confidentiality claim.

Privacy is a particularly high profile issue in health care today. The HIPAA regulations which are scheduled to become effective February 26, 2001, are a fallout of the broad-based support for increased legal constraints being placed on the use of personal health information. These new regulations will force health care systems and providers to re-think how they use electronic systems in health care. In fact, the added cost and effort required for health care systems to comply with these new privacy regulations has led some, including the AMA, to request that Congress reconsider the issue of privacy, assessing the costs of the new regulations versus the benefits. It is generally thought that given the national outcry for more privacy in health care, even if modifications are made to the HIPAA regulations, the regulations will still mandate significant changes in health care systems. As it is, the new regulations will require that current patient consents be rewritten to cover not only what care is to be provided, but also information regarding how medical information will be handled and maintained. The regulations, as written, will impact all health care communications whether they are on paper, on a computer or spoken aloud. The regulations were comprised of 440,000 words and 368 pages when printed in the Federal Register; and, they impose very stiff financial penalties for violating a patient’s privacy.6 Both civil and criminal penalties are available under the new regulations. Health care providers, health plans and their business associates will have two years to implement these new regulations which will be enforced by DHHS. As an inevitable part of implementing these new regulations, health care programs will be adding a privacy officer to complement their current need for a compliance officer, both of whom will, no doubt, carefully scrutinize Web-based health care efforts. Web privacy policies will need to be tightened and presented in written form. Moreover, security of on-line information will have to be reviewed and most likely strengthened, most likely requiring investment in some systems and/or software enhancements. There are thought to be few health care providers who presently can meet these rigorous new privacy standards.7

Many legal issues circle Web-based health care information and services. These issues will continue to evolve as the lawsuits make their way through the U.S. court system. In the meantime, legislation and regulations will continue to be promulgated that impact all areas of Web-based health care. As these changes come, health care providers will have to be prepared to make adjustments in the way in which the Web, as well as other electronic health information is used. Despite the myriad of legal issues involved, there is no doubt that health care will continue to use the Web in a variety of ways to support patients and patient care.

Beverley Kane, MD and Daniel Z. Sands, MD, MPH, “Guidelines for Clinical Use of Electronic Mail with Patients,” Journal of the American Medical Informatics Association, Vol. 5, No. 1 , (Jan/Feb 1998).
Telemedicine Report to Congress, January 31, 1997.
Id.
James J. Ciapciak and Lynne Matuszak, “Employer Rights in Monitoring Employee E-Mail,” For the Defense, (Nov. 1998).
U.S. v. Hambrick, VLW 099-3-144, (Aug. 1999).
65 Fed. Reg. 82462 (Dec. 2000).
“Privacy Rule: Will Force Major Changes in Handling of Patient Information,” Health Lawyers News, Vol. 5 # 2 (Feb. 2001).

PATIENT ISSUES

The General Rule:
As a general rule, there is no legal requirement for an individual physician to accept a new patient. However, once a physician-patient relationship has been established, the physician’s duty to the patient continues until the course of treatment for the health issue for which the patient sought care is completed.

 

Creating Patient Relationships:
The most common way a patient-physician relationship is formed occurs when a physician agrees to see a patient, an appointment is made, the physician interviews and examines the patient and makes treatment recommendations. However, there are other less obvious and less traditional ways to establish a clinical relationship, some of which may be inadvertent on the part of the physician.

 

MEDICAL MALPRACTICE INSURANCE

Understanding medical professional liability insurance has become critically important to physicians. Although the insurance may be expensive, having insufficient or inappropriate coverage can be more costly. When a clinician is sued for medical malpractice, it is a suit against him personally and as such the clinician’s personal assets are at stake. If the clinician has inadequate insurance coverage, the claimant will look to satisfy their claim from the clinician’s personal assets. Therefore, you should understand basic issues related to malpractice insurance to ensure you know you have adequate coverage wherever you are.

There are several fundamental definitions related to the type of coverage you obtain that need to be understood. They are as follows:

  • Occurrence Coverage provides funding for all claims which arise out of a given policy year, regardless of when the claim is actually made. [n.b., as a Trust covered clinician you have this type of coverage]
  • Claims Made Coverage provides funding for claims which are filed during a given policy year. Events that occur in one policy year but for which no claims are filed until a subsequent year are not included.
  • Tail Coverage must be purchased after leaving a claims made policy to provide insurance for incidents which have already occurred but where no claim has yet been received.
  • Prior Acts Coverage also provides coverage after leaving a claims made policy for incidents which have occurred but for which no claims have yet been made; however, as opposed to “tail” coverage, in this instance you are purchasing the insurance coverage from a carrier other than the one that provided the claims made policy.

 

It is important for you to know whether you have a claims made or occurrence policy; and, if you have a claims made policy, who pays for the tail if you leave your position. It is fairly common for the tail not to be paid by a group practice when a clinician leaves. Often, purchasing tail coverage can cost a significant sum of money. Occasionally, when there is a “soft” market, the insurance carrier will offer free tail coverage if you agree to stay with the company for at least five years. However, the company can change this provision at any time and the rule that governs is the one that is in effect when you leave the company.

An occurrence policy provides more complete coverage than a claims made policy. However, occurrence policies are no longer very common. The commercial insurance industry switched primarily to claims made policies in the nineteen-sixties when the frequency of malpractice suits increased. It was difficult for insurance companies to price occurrence policies because of problems predicting losses for any given policy year. The reason it is difficult is because medical malpractice claims generally take years from the inception of the claim until payout. The average time span until payout is five years; but it may be as long as 20 years before a claim is brought by a minor. A claims made policy allows the insurance company to more accurately predict their losses by looking only at claims made in one particular year.

There are other questions you should ask about your insurance policy. Some of the most important questions are as follows:

  • Is there a limit to the number of claims paid in a policy year?
  • What are the policy limits for any one claim and during any policy year?
  • Can a case be settled without my approval?
  • What defense attorney will be used?
  • May I have a voice in selecting my defense attorney?
  • Are punitive damages covered by the policy?


It is important to know the answer to each of these questions. Your insurance broker should be willing to provide the answers.

If you are self insured, then the answers to these questions are determined by your own representatives.

You should be able to find the answers by contacting your program’s administrators.

© Copyright 2015, Piedmont Liability Trust

1020 Ednam Ctr # 100 Charlottesville, VA 22903

(434) 296-2100 | Email Us

LEGAL PERSPECTIVE

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Piedmont Liability Trust has created a variety of reference materials for clinicians to use as references in their daily practices.

 

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