business of Medicine
Onboarding Medical Assistants and Office Staff Toolkit
August 2, 2019
Risk Management in the Medical Office
Terminating the physician patient relationship
Once the physician establishes a physician patient relationship, he/she may not abandon the patient without the threat of potential liability. The physician is obligated to continue treating the patient until the patient’s condition no longer warrants it or the patient discharges the physician. The physician may also terminate the relationship by following these steps.
- Wait to withdraw from caring for a patient who is in the midst of a medical crisis until the crisis is resolved.
To withdraw from a patient who needs care at the moment, risks injury to the patient and a suit for abandonment.
- Verbally discharge the patient in person.
- Confirm the discharge in a letter signed by the physician. The letter should include the following information:
- Summarize the relationship with the patient.
- Establish a date for ending the relationship (usually 30 days depending on the patient’s condition and the availability of a qualified physician).
- Describe the patient’s current condition.
- Inform the patient of his/her need to select another physician.
- Indicate whether follow-up care should be immediate.
- Indicate prognosis if follow-up care is not obtained.
- Inform the patient of other physicians qualified to treat him/her.
- Tell the patient the physician will be available for emergencies or to treat acute conditions during the transition.
- Inform the patient the office will provide a copy of his/her medical records to another physician upon request and with written authorization.
- Inform the patient that the physician will consult with a new physician if requested.
- Send the letter to the patient by certified mail/return receipt requested and also by regular mail. The letter may be sent by FED-EX in lieu of certified mail if there is a concern that the patient may not make the trip to the post office. Most of the time, hand-delivering the letter to the patient is the best option.
- Enclose an authorization form for transfer of records.
- File the mail receipt with a copy of the letter.
- Send a copy of the letter, if the certified letter is returned unclaimed, by regular mail and document the fact that this was done. Place the unclaimed certified letter in the patient’s records.
- Inform the staff not to schedule a new appointment after the effective termination date.
Closing the medical practice
Physicians need to address many issues when closing their medical practice. Below are some of the major issues that should be addressed.
- Notify employees well in advance of the office closing to allow them enough time to seek other employment.
- Consider employing a few staff members after the office has closed to handle medical records, accounts receivable, payables, etc.
- Assist employees in securing employment elsewhere.
- Send a letter to all active patients at least two months prior to closing the office. The letter should include the reason for closing the office, the date of the closing and any recommendations for further treatment. Include an authorization to release medical records in the letter. Also, provide telephone numbers for local medical societies or physician referral services to assist the patients in finding another physician.
- Notify all colleagues of the date of the office closing.
- Retain all original medical records.
- If a patient requests his/her medical record, send only copies.
- If the physician is transferring his/her records to another physician, develop a written agreement stipulating that the physician still owns the records and the custodian of the records will not destroy the records, alter the media or transfer the records to another physician without written permission from the physician. In the alternative, the agreement should at a minimum allow the retiree access to the records as necessary (e.g., for the defense of a claim.)
- Maintain a list of transferred files and their disposition.
- The general rule for retaining medical records for 10 years (see Section 3) does not apply to physicians retiring from practice. (See Chart Medical Records in Section 3 - Record Retention). However, it is recommended that retiring physicians maintain medical records as long as practical and feasible, and preferably, until expiration of any applicable statute of limitations.
- Notify MAG Mutual’s Underwriting Department, the DEA and Composite State Board of Medical Examiners of the physician’s intention to close his/her office.
- Notify hospitals and the physician’s professional societies of the physician’s intention to close his/her office.
- Make provisions for the collection of accounts, making sure the physician’s policies regarding billing and collections are maintained by the third party that handles the collections.
For additional information, physicians may obtain a book entitled Closing Your Practice from the Department of Practice Development Resources of the American Medical Association at (312) 464-5000.
Risk management issues in telemedicine
The use of telemedicine within the healthcare delivery system is experiencing unprecedented growth spurred by Federal support, managed care demands, the decreasing cost of the technology and the opportunity to provide access to medical care to areas of this country where previously unavailable. Using technology that ranges from simple telephones to satellites to state-of-the-art video conferencing equipment and high-tech links, telemedicine has created a variety of applications today in patient care, education, research and public health. However, with the advance in healthcare delivery comes risk to patient care and professional liability exposures to physicians and other healthcare workers. Although not altogether new, these areas of risk and liability exposure have taken on a new look.
- Providers must become comfortable and proficient with the technology they will be using during the telemedicine encounter. Where is everyone involved in the encounter on the learning curve with the technology?
- Minimum requirements for the technology specifications of the equipment used must be established and standardized to fit the type of encounter. For instance, a dermatology consult requires a high-resolution camera and monitor where a psychiatric consult does not. Equipment used for static image consults, such as in radiology, requires certain types of technology. The American College of Radiology has established standards for teleradiology, but who is setting the standard for the type and quality of the equipment being used in other specialties?
- Technology is changing so rapidly that, without minimum standards and specifications, the practice of telemedicine may not evolve congruently among users. A standard which is established by the clinical community which utilizes telemedicine will protect practitioners and patients.
Credentialing and Qualifications
- What are the credentials of the physician or other healthcare provider or who is presenting the patient?
- Who credentialed them, and what are their credentialing criteria?
- Is the working relationship between the two telemedicine healthcare providers compatible? Are styles similar enough that the encounter does not appear to the patient to have any conflict between such providers? Do the practitioners act as a team?
- Has the referring doctor or healthcare provider teleconsultant (‘teleconsultant”) been trained and credentialed in the use of the technology?
- Is the staff at the referring site qualified to handle an emergency during the consult where you are directing treatment? Do you have proper emergency equipment?
- Is the referring physician comfortable with the credentials of the teleconsultant? In the face of an injury brought on by a teleconsultant, the referring physician may be held vicariously li-able for their actions.
- As you have become comfortable with the credentials of physicians you consult with, now you must also become comfortable with the credentials and qualifications of your teleconsultants.
- Do hospitals that host telemedicine sites credential the present-ing physicians and give them some level of privileges? The hospitals could have vicarious liability for physicians practicing in their facility, and the consulting physician should have the assurance the presenting physician is qualified to perform his/her duties.
- In a closed system, it is easy to set the qualifications and guide-lines for those physician and non-physician practitioners working within the system. When telemedicine goes outside of a closed system, you lose control and should be at a higher level of awareness of the qualifications of those with whom you are work-ing. You wouldn’t send your patient to someone without knowing their qualifications; teleconsulting should be the same.
- Under most state laws, the patient does not have to give in-formed consent for a telemedicine encounter. However, with this new system of healthcare delivery, it is important for the patient to have a complete understanding of risks and realistic expectations of the benefits and limitations of telemedicine. Therefore, obtaining informed consent from the patient is advisable.
- Make the patient aware of treatment options to telemedicine, including traveling to the specialist and other acceptable alternatives.
- At this early stage of telemedicine where the public may be skeptical and their level of acceptance is low, the physician may be held to a higher standard, as the courts may view telemedicine as experimental.
- Make sure telemedicine is appropriate for the situation.
- The patient needs to understand what the limits and benefits of telemedicine are in their treatment plan and accept the limitations of telemedicine.
Document the Encounter
- Not only should the exam, findings, treatment and instruction be documented as they would with any patient encounter, the environment used in the telemedicine encounter, including the equipment used and its specifications (i.e., resolution), should al-so be documented.
- All caregivers who treat the patient should generate and maintain a medical record on each patient they encounter.
- The rules for documenting patient care do not change with tele-medicine. The medical record is still the first line of communication to you and subsequent treating practitioners and still the first line of defense in an allegation of professional liability.
When to Proceed & When to Stop
- Don’t be afraid to stop a telemedicine exam or treatment if you, in your professional judgment, believe the patient would be best treated in person. Proceeding with an exam or treatment when there is a high possibility of misdiagnosis or treatment injury is not a new liability exposure.
- However, proceeding with a telemedicine exam when a face-to-face encounter is indicated adds an extra problem when faced with an injury.
Responsibility for Patient Treatment
- As with any consult or referral, discuss and clarify the roles and responsibilities of each practitioner prior to the patient encounter and clarify the arrangement to the patient.
- Who has established the primary patient-physician relationship?
- A referring physician may be held vicariously liable for the negligence arising from the acts of the teleconsultants. This theory of negligent referral is not new as applied to telemedicine, it just emphasizes the need to know your consultant and feel comfortable with their qualifications.
When is the Patient-Physician Relationship Created?
- This is a fundamental issue with telemedicine that continues to be up to interpretation. It must be made clear to all, including the patient, as to who has responsibility for which part of the patient’s care, treatment and follow-up.
- If the teleconsultant acts as an advisor to the treating physician, a relationship with the patient may not have been created. The attending physician is still the one making the treatment deci-sions based on the advisor. If the teleconsultant is actually directing care and treatment of the patient, there is no doubt that a patient-physician relationship exists.
- In most states, the existence of a patient-physician relationship is requisite to creating a legal connection between the parties, and thus a duty.
Personalize the System
- The teleconsultant must put forth an extra effort to establish rap-port with the two-dimensional patient on the monitor.
- The public may be accustomed to viewing TV, but they are not accustomed to real-time interaction.
- Design both the transmitting and receiving rooms to be similar and make reference to objects or charts in the room to give the patient more of a feeling that you are there.
- In some situations, the person uncomfortable with the encounter may not be the patient, but the physician or other practitioners.
Electronic Records and Confidentiality
- As part of a standard procedure, the teleconsultant and the referring physician must explain to the patient how telemedicine and the electronic transfer of medical information work. The safe-guards of confidentiality on the transmission of the actual encounter, any recorded information and any hard copy documents should be explained.
- The patient must be told who is viewing the encounter. If they feel their cyber exam is being viewed by others, they may not be honest during the exam or worse, may not seek care or follow-up.
- Properly designed electronic record systems can provide greater protection for sensitive information than paper-based records.
- Passwords for electronic record systems must be changed regularly and never shared. Employees should be asked to agree to and sign a Confidentiality Agreement.
Standard of Care for the Use of Telemedicine
- At what point will obtaining a telemedicine consult be considered a standard of care and, thus, create a duty? Some say the duty may be created now.
- In Georgia, the requisite standard of care is defined as what is employed by the profession generally under similar conditions and like surrounding circumstances.
- Therefore, if a teleconsultant is available in a rural area through a locally established telemedicine conferencing center, and the resource is not used as other physicians in the community utilize the resource; is this practicing below the standard of care? Is telemedicine, once established and proven effective, another re-source that must be considered and utilized, if applicable, as you would refer to any specialist?
- Telemedicine has the capability to substantially improve access to needed healthcare services and medical expertise. However, the technology of telemedicine has evolved faster than applicable law.
- Physicians and other healthcare workers are subject to the laws, rules and regulations of the state in which they practice. In most states, a physician is considered to be practicing medicine in the state where the patient is located. Therefore, if a physician teleconsults on a patient in another state, he or she will most likely be subject to that state’s jurisdiction and licensure laws. Physicians who teleconsult should consider the following:
- The Federation of State Medical Boards and the American Medi-cal Association has been in discussion as to the numerous licensure issues, but to date nothing has been decided upon toward the adoption of uniform standard and administrative requirements.
- Will he/she have coverage for professional liability claims if they occur from a telemedicine encounter and the suit is filed in an-other state?
- In which venue will the plaintiff be allowed to file the lawsuit? The attorneys will likely choose the location most favorable to the plaintiff.
- At this time it is advisable to be licensed in the state in which he or she resides and the state where the patient is being consulted.
Reporting lawsuits, threats of legal action, claims and potential claims as soon as possible is a policy obligation and, more importantly, can assure efficient action by MAG Mutual. Action taken within the first few days or even hours after an injury has occurred can reduce the severity of a loss and possibly prevent a lawsuit. The claims representative will offer advice during this difficult time about how to achieve the best possible outcome.
Keep in mind that prompt reporting of claims under MAG Mutual’s medical professional liability policy has no adverse effect on an insured physician’s insurability, premiums or Loss Excellence Appreciation Discount.
A claims representative should be contacted:
- When suit papers are received. The physician’s professional liability carrier must be informed immediately. (Failure to do so may result in a default judgment, and the physician may be personally responsible for the payment of that judgment.)
- Whenever an attorney contacts a physician by phone or letter to discuss a patient’s care. (There are no “off-the-record” discussions.)
- When any unexpected severe injury occurs, including, but not limited to:
- Loss of limb
- Loss of bodily function
- Birth of neurologically impaired, handicapped or nonviable baby
- Any iatrogenic injury
- When a patient threatens a lawsuit.
- Whenever a subpoena is received involving another physician or hospital.
- Regarding any correspondence from an attorney to a physician or the hospital requesting records or notifying him/her of a claim. (Exception: We do not need to be called for any Workers’ Compensation or automobile claims in which the physician is involved, unless the care he/she provided is in question.)
- For any unexpected/unfortunate result if the patient is upset.
- HIPAA permits a physician to disclose patient information to the physician’s medical professional liability insurer for the purpose of establishing a defense against the patient’s professional liability claim without patient authorization.
Medical office quality and performance improvement/risk management plan
The objective of the Quality and Performance Improvement/Risk Management Plan (“Q&PI/RM Plan”) is to provide a method to review and continuously improve the quality of care/service provided by the physician’s medical office and to provide a mechanism for identification and control of risk exposures, improving patient safety, improving the quality of care, and ultimately reducing the risk of liability. The Q&PI/RM processes are carried out and documented within established medical office guidelines and applicable state laws. The Q&PI/RM process will focus on a planned and systematic identification of the medical practice’s needs/problems to identify opportunities for improvement before problems occur and resolution of known or suspected problems that have an impact on patient care or other customer needs and the medical office’s liability.
This will be accomplished through ongoing monitoring and evaluation of key process indicators utilizing nationally recognized standards, internal and external databases, benchmarking and risk management outcomes.
The Q&PI/RM Plan serves as the tool for management to effectively implement Q&PI/RM activities within the medical office’s services. This plan focuses on all areas throughout the medical office including direct patient care, management and patient care/services. The objectives of this program are to enhance the ongoing performance and quality of all medical office operations and functions and to reduce risk.
Responsibility and Authority
The owners of the medical practice have the overall responsibility for assuring the provision of quality services and preventing losses. The managing body requires the medical staff and office staff to implement and report on the activities and mechanisms for monitoring and evaluating the quality of patient care, for identifying opportunities to improve patient care and for identifying and resolving problems. The goal is to provide quality patient care nationally recognized standards of care to physicians in a safe and professional environment.
An individual within the medical office management staff will be identified to collect and report data to the physician(s) for their review and formulation of action plans for continuous improvement when needed, based on the results of data collected.
Indicators are used to identify potential problem-prone areas. The indicators are selected based on important aspects of care/service activities such as patient satisfaction, medical chart review, documentation compliance with OSHA/CLIA standards, patient flow, nationally recognized disease management protocols and risk control aspects such as malpractice claims and office safety practices. The indicators are measurable and based on nationally recognized criteria and risk assessment outcomes. Indicators are reviewed and adjusted from time to time as needed. See suggested possible indicators in Section 8.6.
Indicator data is collected on the Indicator Data Collection Form (Section 7.3). Indicator outcomes will be reported to the medical staff on the Indicator Outcome Report Form (Section 7.4).
When an action plan is identified, it will be documented on the Improvement Action Plan Form (Section 7.5). Resources for indicator data will include, but not be limited to, patient surveys, information from managed care organizations/payers, medical records reviews, safety reports and risk management outcomes.
When the data has been collected, it is important to use the suitable technique/tool to analyze and present the data enabling decisions to be based on fact. Frequently used techniques/tools include:
- Bar Chart: A graphical depiction of the number of occurrences and frequencies for a set of categories.
- Pareto Chart: A special form of a vertical bar graph which is used to display the relative importance of all the problems. It is useful in identifying the problem causes which have the greatest impact and need to be worked on.
- Control Chart: Displays data over time distinguishing between common and special variation in a process. Control charts are useful in deciding when and when not to make process adjustments.
Plan for Improvement
Opportunities for improvement will be identified and reported on the Improvement Action Plan Form. The effects of that action are then monitored through further indicator data collection. This followup is essential for quality improvement.
A number of effective measures may be taken to foster improvement or to correct deficiencies in the quality of care provided. The following are some specific examples:
- Making structural changes in the organization or patient care.
- Targeting continuing education programs to address identified problems or concerns.
- Amending policies, procedures, processes and forms.
- Increasing or realigning staffing levels or patterns.
- Providing new equipment or facilities.
- Making changes in patient education programs.
- Using management intervention in the form of positive/negative feedback, formal counseling. etc.
It is every staff member’s responsibility to ensure current knowledge of Q&PI/RM activities. All new employees will be briefed on the Q&PI/RM Plan during the newcomer’s orientation. All practitioners will be aware of current indicators being monitored and their performance. The Q&PI/RM Plan will be reviewed annually and indicators changed and implemented as necessary, but with at least two indicators being reviewed annually.
Disposition of Documentation
All Q&PI/RM Plan documentation is retained on file in a secured office and maintained for three years. All data collected by the Q&PI/RM Plan is regarded as confidential and will be held in strict confidence. Q&PI/RM Plan documents will have the following confidentiality statement prominently displayed on the first page:
This Quality and Performance Improvement Risk Management Document is prepared for use in the facility’s quality assurance process and contains Confidential Information. It shall not be subject to discovery or introduction into evidence in any civil action.
This Quality Improvement Document is prepared for peer review purposes for use in the facility’s quality improvement process and contains Confidential Information. Quality and Performance Improvement/Risk Management material may not be released without the permission of the medical practice owner. Intentional or unintentional release of confidential information, verbal or written, to an unauthorized person or agency will result in disciplinary action and may be considered just cause for immediate dismissal of an employee.
The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.