Texas Medical Liability Trust PROUDLY the SERVING Texas physicians and policyholders REPORTER since 1979 with quality coverage and 2015 Volume 4 responsible pricing.

IN THIS ISSUE: TMLT launches Lone TMLT launches 1 Lone Star Alliance, Inc., Star Alliance, Inc., RRG to cover out-of-state physicians RRG to cover out-of- CME Activity: state physicians 4 Following TMB guidelines when providing pain management MLT proudly care announces the launch of Lone Star Alliance, Inc., RRG. 14 Risk T management Lone Star Alliance, a risk services: retention group operated by outcomes TMLT, was established to and trends provide medical liability and similar types of insurance to physicians, groups, health Closed Claim 18 care facilities, and allied Study 1: health care professionals Alleged outside of Texas. unnecessary surgery Lone Star can accommodate the needs of TMLT’s new and existing policyholders by 20 Closed Claim writing insurance for those Study 2: who have operations in states Failure to other than Texas. Lone Star follow up can also cover policyholders who leave Texas to work in another state.

(Continued on page 2)

TMLT the Reporter As sponsor and program manager for Lone Star, handling, and risk management functions. TMLT provides all essential operational These services are provided under a support to the RRG, such as financial and management services agreement. accounting services, information technology, underwriting, sales, marketing, claims Where is Lone Star Alliance located? handling, and risk management functions. Lone Star is domiciled in Washington, DC, These services are provided under a but our office is located in Austin, Texas. management services agreement. What kind of policies does Lone Star offer? Lone Star was started in 2013 when TMLT Lone Star offers a full range of medical began exploring how to extend coverage to liability coverage options for individual policyholders who were also practicing in other and physician groups, and allied health states. Lone Star Alliance is domiciled in care professionals. We offer claims-made Washington, DC, but it shares offices with (including prior acts or “nose coverage”) and TMLT in Austin. occurrence policies at a variety of limits. Per-patient rated policies and shared-limit “With Lone Star, we are no longer bound by policies are also available. Policies include state lines. More importantly, neither are our cyber liability protection, regulatory actions physicians,” says Robert Donohoe, President protection, medical director coverage, and and CEO of TMLT. “We can now serve employment practices liability insurance. physicians anywhere in the United States with View policy options at www.lonestara.com/ the same strong, flexible coverage and winning policy-detail.html. defense strategies Texas physicians receive from TMLT.” Who can apply for coverage? Any physician, group practice, allied health FREQUENTLY ASKED QUESTIONS (FAQ) care professional, or health care entity located What is Lone Star Alliance, Inc., RRG? outside of Texas can apply for coverage with Lone Star Alliance is a risk retention group Lone Star. “With Lone operated by TMLT. It was established to provide medical liability and similar types of If a practice located in multiple states Star, we are no insurance to physicians, groups, health care applies for coverage, the Texas-based longer bound facilities, and health care professionals in physicians may be insured through TMLT and multiple states. Lone Star can meet the needs the physicians based outside of Texas will be by state lines.” of TMLT’s new and existing policyholders insured through Lone Star. by writing insurance for those who have operations in states other than Texas. How do I obtain a quote? Please contact your agent or a Lone Star What is a risk retention group (RRG)? representative at [email protected] or call An RRG is an alternative insurance entity 512-425-5890. created by the federal Liability Risk Retention Act (LRRA). RRGs must form as liability How do I apply for coverage? insurance companies under the laws of at least Please contact your agent or a Lone Star one state—its charter state or domicile. The representative at [email protected] or call policyholders of the RRG are also its owners. 512-425-5890. Membership must be limited to organizations or persons engaged in similar businesses or Do I have to become a member of the Texas activities, thus being exposed to the same Medical Association (TMA) to purchase types of liability. coverage with Lone Star? No. TMA membership does not apply to Does TMLT own Lone Star Alliance, RRG? Lone Star Alliance. TMA membership remains No. TMLT and its subsidiaries—as a requirement for coverage with TMLT. sponsor and program manager for Lone Star —provide all essential operational support How do I continue coverage if I decide to to the RRG. Support includes financial and leave Texas? Do I have to re-apply for accounting services, information technology, coverage in Lone Star? underwriting, sales, marketing, claims Because we will need information about

2 TMLT the Reporter your new practice, we will ask you to complete Can I take a TMLT CME course and a short application. Please contact your receive a discount for Lone Star? underwriter at 800-580-8658. No. You must take a Lone Star CME course to earn the discount. Courses are available on What is the difference between Lone Star the Lone Star CME site at lonestara.inreachce. coverage and TMLT coverage? com. The Lone Star policy mirrors the TMLT policy with the exception of state-specific Can I apply my TMLT practice review requirements. Lone Star policies are flexible discount to my Lone Star policy? and specific policy needs can be modified or No. Your TMLT practice review discount endorsed. will not apply to your Lone Star policy.

Do I qualify for Trust Rewards in Lone Does the Lone Star claims philosophy Star? align with TMLT’s claims philosophy? TMLT Trust Rewards cannot be extended Yes. Each claim is aggressively defended to Lone Star Alliance policyholders. and we do not settle non-meritorious lawsuits. If a case requires a compromise settlement, What happens to my Trust Rewards our experienced claims staff negotiates to balance if I move to Lone Star? obtain the best possible result. Additionally, Because Lone Star policyholders are not TMLT/Lone Star only hires experienced, eligible for the TMLT Trust Rewards program, specialized, medical malpractice defense you will not receive additional Trust Rewards attorneys to represent our policyholders. allocations while you are insured with Lone Star. However, your existing Trust Rewards Can a Lone Star claim be settled without balance will remain intact while you are with my consent? Lone Star and you will be eligible for payout No. Cases are not settled without a distributions pursuant to qualifying events. policyholder’s consent.

Will I receive a dividend through Lone To learn more about TMLT and Lone Star, Star? please visit www.tmlt.org/lonestar. Lone Star does not have a dividend program at this time.

What discounts are available through Lone Star? Lone Star rewards physicians for their patient safety efforts. The following premium discount opportunities are available in most states: • discounts for favorable claim experience; • group purchasing credits; • discounts for new-to-practice physicians; • part-time discounts; and • discounts for completing a risk management CME course (up to 5 percent for two courses; courses must be 2.5 hours in length to qualify).

Does Lone Star offer CME? Through our Risk Management Department, Lone Star offers home-study programs and online courses to help reduce liability risk. Courses are available on the Lone Star CME site at lonestara.inreachce.com.

2015 VOLUME 4 3 OBJECTIVES | At the conclusion of this educational activity, the physician should be able to: 1. discuss the rules and mandates by which physicians are evaluated by the TMB during an Informal CME Settlement Conference; Activity 2. describe the prerequisites for prescribing controlled substances in Texas; 3. explain the TMB guidelines on pain management; and 4. assess the roles, responsibilities, and compliance of staff and advanced practice providers.

CME: Following TMB guidelines when providing pain management care

COURSE AUTHOR PRICING Franklin Hopkins is an Austin-based attorney, The following fee will be charged when accessing Board Certified in Administrative Law by the this CME course online at http://tmlt.inreachce.com. Texas Board of Legal Specialization, with Germer Policyholders: $10 Beaman & Brown PLLC. His practice focuses on Non-policyholders: $75 medical malpractice defense and representing physicians before the Texas Medical Board, along ETHICS STATEMENT with representing other health care licensees in This course has been designated by TMLT for front of their respective licensing agencies. 1 credit in medical ethics and/or professional responsibility. DISCLOSURE Franklin Hopkins has no commercial INSTRUCTIONS affiliations/interests to disclose related to this the Reporter CME test and evaluation forms activity. must be completed online. After reading the article, go to http://tmlt.inreachce.com. Log in using your TARGET AUDIENCE myTMLT account information to take the course. This 1-hour activity is intended for physicians Follow the online instructions to complete the of all specialties who are interested in practical forms and download your certificate. If you do not ways to reduce the potential for medical liability. have a myTMLT account, please follow the on- screen instructions to create one. CME CREDIT STATEMENT Questions about the CME course? Please call Physicians are required to complete and pass a TMLT Risk Management at 800-580-8658. test in order to earn CME credit. A passing score of 70% or better earns the physician 1 CME credit. ESTIMATED TIME TO COMPLETE ACTIVITY TMLT is accredited by the Accreditation It should take approximately 1 hour to read this Council for Continuing Medical Education article and complete the questions and evaluation (ACCME) to provide continuing medical education form. for physicians. TMLT designates this enduring material for a maximum of 1 AMA PRA Category RELEASE/REVIEW DATE 1 Credit.™ Physicians should claim only the This activity is released on October 1, 2015, and credit commensurate with the extent of their will expire on October 1, 2018. participation in the activity. Please note that this CME activity does not meet TMLT’s discount criteria. Physicians completing this CME activity will not receive a premium discount.

4 TMLT the Reporter THE TEXAS MEDICAL BOARD, A PANEL The purpose of a proper medical record is REVIEW, AND DOCUMENTING PAIN to provide comprehensive documentation of MANAGEMENT the treatment provided by the physician to The mission of the Texas Medical Board the patient. Patient records are the history (TMB or Board) is to “protect and enhance of all that has been done for that patient, the public’s health, safety and welfare by including what has worked, and what has not establishing and maintaining standards of worked. Being comprehensive also allows for excellence used in regulating the practice patients to take their medical records to other of medicine and ensuring quality health providers for follow-up care. care for the citizens of Texas through licensure, discipline and education.”1 The An area of practice that is often cited TMB accomplishes its mission by providing for lack of proper documentation is pain consumers with a number of services to management. ISC findings suggest that ensure they receive the best health care in no other area of practice is the issue of possible, including opportunities to research incomplete or poor documentation more licensed health care practitioners, access prevalent. Because of this deficiency, pain agency data, and file complaints against management care is often highly scrutinized physicians and their staff members who fall by the TMB.4 This scrutiny will be the same below the standard of care. Part of the Board’s whether the physician is a full-time pain statutory duty2 of regulating the practice of management physician, board certified by the medicine in Texas is to investigate patient American Board of Pain Medicine, or a family complaints.3 practice physician who treats everything from the common cold to pain management. Patient complaints that are investigated The standard of care for treating patients and judged in the patient’s favor are presented for chronic and acute pain is the same for all before an Informal Settlement Conference physicians. (ISC) review. An ISC is a meeting at the Board where allegations are discussed among two PAIN MANAGEMENT RULES TO KNOW TMB members (or Panel), the physician When a patient overdoses on prescribed under investigation, and their attorneys and controlled substances, attention focuses on legal advisors. More than 90% of complaints the physician and what kind of care the patient submitted to the TMB are resolved after an received.5 Consequently, the TMB will ensure initial investigation and never reach the ISC that the physician involved in the case is stage. However, 10% of investigations do investigated. continue on to an ISC, and every physician should be prepared for what to expect if they If a physician has a prior Agreed Order6 are part of that 10%. with the Board, particularly for non- therapeutic prescribing, the scrutiny will only During the ISC, the Panel will ask the increase. Why was this physician allowed to physician to describe his or her particular keep practicing? Why was he or she allowed course of action in the context of the to prescribe controlled substances? Tough allegations. When the physician responds questions will be asked, and those questions with comments about the patient’s medical must be answered. history, presentation, or statements, the Panel will often respond with the question: “Where When treating acute or chronic pain in the medical records is that documented?” In patients, there are a few rules and laws most cases, the physician is able to point to the all physicians must know to reduce risk page in the electronic health records during and ensure they are following the correct the review. However, if the reply is, “I didn’t protocols. These measures are the basis upon document it,” the familiar saying during an which the Board evaluates pain management ISC is, “If you didn’t document it, then it didn’t care. happen.” This is not optimal for the physician.

2015 VOLUME 4 5 CME TEXAS MEDICAL BOARD RULES of medicine in Texas. Activity CHAPTER 170, PAIN MANAGEMENT SECTIONS 170.1-170.37 The MPA also defines what falls under the Board Rule Section 170.1 – Purpose heading of unprofessional or dishonorable “This rule sets forth minimum conduct, such as non-therapeutic prescribing. requirements related to the proper treatment Section 164.053 (a)(5) of the Texas of pain. The board’s intent is to protect the Occupations Code describes “Unprofessional public and give guidance to physicians.” or Dishonorable Conduct” as conduct “likely to This section provides clear definitions deceive or defraud the public” which includes and guidelines for pain management and the prescription or administration of a drug is intended to provide the basis of pain or treatment “that is nontherapeutic in nature management responsibility, documentation, or nontherapeutic in the manner the drug or and policy for all physicians in Texas. treatment is administered or prescribed.”10

Board Rule Section 170.2 –Definitions Non-therapeutic prescribing is the primary How is acute pain different than chronic serious violation alleged by the Board in pain pain? The TMB provides the following management cases. definitions: Texas Controlled Substances Act • “‘Acute pain’—the normal, predicted, Chapter 481 of the Texas Health and Safety physiological response to a stimulus such as Code, commonly referred to as the Texas trauma, disease, and operative procedures. Controlled Substances Act (TCSA), regulates Acute pain is time limited.” controlled substances in Texas, including the penalties for providers and others violating it.11 • “‘Chronic pain’—a state in which pain persists beyond the usual course of an acute Controlled Substances Act disease or healing of an injury. Chronic The Controlled Substances Act (CSA) pain may be associated with a chronic regulates the manufacturing, distributing, pathological process that causes continuous and dispensing of controlled substances in or intermittent pain over months or years.” the United States, along with the offenses and penalties for violating these regulations.12 The Chronic pain patients are scrutinized Drug Enforcement Agency (DEA) enforces the more than acute pain patients due to their controlled substances law and regulations of propensity to abuse controlled substances and the United States, including the CSA.13 their extended periods of treatment. WHAT YOU NEED IN ORDER TO Board Rule Section 170.3 – Guidelines on PRESCRIBE CONTROLLED SUBSTANCES Pain Management IN TEXAS A common question during an ISC is, In Texas, physicians must register with the “Doctor, have you looked at the Board’s DEA to obtain a Certificate of Registration to Guidelines on Pain Management?” If the prescribe controlled substances. To obtain this answer is “No,” the Board is apt to rule against certificate, a physician must complete DEA the case and present the physician under Form 224.14 investigation with an Agreed Order to discuss with his or her attorney.8 Until recently, physicians also had to obtain an application for a Texas Controlled The Board Guidelines on pain management Substance Registration Certificate from the are brief and worth reviewing often. A review Texas Department of Public Safety (DPS). of this Rule is contained later in this article. But Senate Bill 195 (84th Legislative Session), which was signed by Texas Governor Greg Medical Practice Act Abbott on June 20, 2015, eliminates this The Medical Practice Act (MPA), also requirement beginning September 1, 2016. known as the Texas Occupations Code,9 is the (DPS has automatically renewed all active/ statute that enables the Board to govern the current controlled substances registrations as practice of medicine in Texas. Together with of August 20, 2015. These will expire on August the TMB rules, the MPA regulates the practice 31, 2016). 15

6 TMLT the Reporter RISK MANAGEMENT PROTOCOLS FOR In addition, explore alternative treatment PRACTICING PAIN MEDICINE options to controlled substances. If you Following these protocols helps to ensure prescribe controlled substances to treat the proper practice of pain management. If pain without also incorporating referrals to ever investigated by the Board, a physician specialists, physical therapy, or any other who can provide proof of following these type of treatment method, fully explain your protocols would strengthen his or her case rationale in the medical record. when responding to a Board complaint or investigation: 3) Follow the Board Guidelines on Pain Management, Section 170.3 1) Referrals to specialists –“Doctor, how The Board will use the guidelines set many referrals do you normally make?” forth in Section 170.3 to assess a physician’s If pain management is only a small part of treatment of pain. your practice, consider referring patients to a pain management specialist. For example, Overall, these rules stress seven areas of psychiatrists, physical therapists, or pain focus: medicine specialists are well equipped to treat and manage a chronic pain patient. Further, 1. Evaluation of the patient. these specialists often practice in facilities or 2. Treatment plan for chronic pain. “The hospitals that have the necessary equipment, physician is responsible for a written staff, and tools for treatment. If you know you treatment plan that is documented in the are not going to treat these patients in the long medical records.” term, consider a referral. 3. Informed consent. “It is the physician’s responsibility to discuss the risks and benefits When providing a referral, hold your of the use of controlled substances for the patients accountable and document if they treatment of chronic pain with the patient, do not see the specialist. For example, if persons designated by the patient, or with the a patient who has been in a car accident patient’s surrogate or guardian if the patient claims he has been in constant pain for an is without medical decision-making capacity. extended period of time, but does not go This discussion should be documented by for the prescribed physical therapy, ask either a written signed document maintained him why. Carefully evaluate the patient’s in the records or a contemporaneous notation answer. Is your patient’s reluctance based included in the medical records.” on financial need? Physical therapy is often 4. Agreement for treatment of chronic pain. more affordable than controlled substances. “A proper patient-physician relationship Provide your patients with information for treatment of chronic pain requires on the benefits of physical therapy and the the physician to establish and inform the options available to them. patient of the physician’s expectations for compliance. If the treatment plan includes 2) Have a treatment plan and goal for extended drug therapy, the physician each pain management patient should consider the use of a written pain With every pain management patient, management agreement outlining patient create and maintain a thoroughly documented responsibilities.” treatment plan. Ask yourself: What is the 5. Periodic review of the treatment of chronic treatment goal for this patient? Is it to pain. restore the patient’s functionality and get the 6. Consultation and referral. “The physician patient back to work? If your plan includes should refer a patient with chronic pain prescribing controlled substances for an for further evaluation and treatment as extended time, it is in your best interest to necessary. Patients who are at-risk for ensure your patient’s care and history is well abuse or addiction require special attention. documented. The Board often questions Patients with chronic pain and histories physicians if they prescribe controlled of substance abuse or with co-morbid substances to the same patient for years psychiatric disorders require even more and the patient does not show signs of care. A consult with or referral to an expert improvement. in the management of such patients should be considered.”

2015 VOLUME 4 7 CME Activity

7. Medical records. “The medical records the hydrocodone and is taken to a hospital’s shall document the physician’s rationale emergency department. How will you be able for the treatment plan and the prescription to defend yourself to the Board for continuing of drugs for the chief complaint of chronic to prescribe controlled substances to a patient pain and show that the physician has who previously admitted diverting medication followed these guidelines.”16 to his child?

The main takeaways from the Board If your patient ever informs you of diversion Guidelines are: 1) document the full treatment behavior, the best approach is to immediately plan for each of your patients; 2) have a pain warn them that it is unlawful; document your contract in place with your patients; 3) ensure counseling of the patient; and consider ceasing your patients are informed and agree about prescribing controlled substances to the using controlled substances; and 4) re-assess patient. the course of treatment regularly. 5) Monitor your patients’ prescription use 4) Be vigilant regarding drug “diversion” How do you know your patients are not The Board defines “diversion” as “the use abusing their prescriptions? Better yet, how of drugs by anyone other than the person do you know if they are even taking their for whom the drug was prescribed.”17 When controlled substances? You do not—unless you a patient gives some of her medicine to her actively monitor your patients’ prescription husband or her daughter, she has engaged use. If you are not diligent in monitoring in diversion. Called “soft diversion” or “soft patients who are taking controlled substances, transfer,” this use of medication by a patient’s the Board may find that you have engaged in family or friends is much more prevalent than non-therapeutic prescribing. criminal diversion. The best method for monitoring patients is Imagine this scenario: a patient tells you to simply ask them if they are adhering to their he needs an early refill for his prescription prescriptions and if they are experiencing of hydrocodone because he gave some of the relief of their pain symptoms. Document their medicine to his child to relieve pain from a answers and whether the medications improve twisted ankle. After your patient tells you this, their pain levels and functionality. If the pain you continue to prescribe to the patient. The medicine is not helping, alter your treatment patient’s child then has an allergic reaction to plan.

8 TMLT the Reporter Physicians may also decide to perform A fourth and final way to monitor is to check routine and random urine drug screens (UDS) the DPS records of your patients. DPS has an on their patients. A negative UDS result should online database of prescriptions obtained by alert the physician to ask the patient whether patients that is accessible by physicians and the medication is working or if the patient authorized users. Prescription Access in Texas is taking the medication. Regardless of the (PAT) can be helpful if a physician suspects reason the patient may provide, to prescribe that a patient may be receiving prescriptions additional controlled substances to a patient from other physicians without disclosing that who is not taking them is textbook non- information or is exhibiting drug-seeking therapeutic prescribing. behavior. Consider checking the database for any new patient who is currently taking In addition to non-therapeutic prescribing, controlled substances, any existing patient it could be alleged that you are prescribing who requests an early refill of a controlled to a known abuser of drugs or person you substance, or any patient who triggers concerns have reason to believe is diverting drugs. about abuse of controlled substances.22 Consequently, the Board may allege that you are violating the following rules: With today’s online information capabilities, medical providers have greater • Section164.053 (a)(3) writing prescriptions access to their patients’ medication regimes DPS has for or dispensing to a person who the than ever before. A written policy directing physician knew or should have known was your staff to perform these checks ensures that an online an abuser of narcotic drugs, controlled your office is vigilant in screening potential database of substances, or dangerous drugs; 18 drug-seeking patients. • Section164.053 (a)(4) writing false or prescriptions fictitious prescriptions for: (A) dangerous 6) Monitor your staff obtained by drugs as defined by Chapter 483, Health and By law, a physician is responsible for the patients that Safety Code; or (B) controlled substances actions of his or her staff.23 Therefore, how scheduled in Chapter 481, Health and are you verifying their compliance with pain is accessible Safety Code, or the Comprehensive Drug management rules and guidelines? by physicians Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.);19 and Start with holding regular, documented and • Section164.053 (a)(6) prescribing, meetings with staff members to review authorized administering, or dispensing in a manner procedures for: users. inconsistent with public health and welfare: (A) dangerous drugs as defined • handling and distributing sample controlled by Chapter 483, Health and Safety Code; substances in the office, including or (B) controlled substances scheduled in maintaining your controlled substances log Chapter 481, Health and Safety Code, or the book; Comprehensive Drug Abuse Prevention and • identifying who provides the prescription to Control Act of 1970, (21 U.S.C. Section 801 the patient; et seq.).20 • ensuring everyone reviews the pain contract; A third way to monitor your patients who • determining where prescription pads are are taking controlled substances is to ask kept and who has access to them; their family members or friends. HIPAA • sending triplicate prescriptions to DPS for guidelines21 allow you to discuss the patient’s Schedule II controlled substances; health information with family and friends, • logging or handling any unusual phone as long as you have prior permission from calls from patients about missing or stolen the patient. You may consider asking family prescriptions; and members or friends who come in with the • authorizing refills. patient about the patient. Is the patient often sleepy? Does the patient seem to be adjusting A physician should also regularly review to the medications? One red flag could be if the his or her prescription pads and be able to patient reports he or she is always in pain, yet account for all of them. You never want to the family member or friend says the patient be in a situation where you are unable to never complains about being in pain. account to DPS for a stolen or lost Schedule II

2015 VOLUME 4 9 CME prescription pad.24 It is not uncommon for a prescription authority to APPs, go to the Board’s Activity physician to unwittingly learn years later that question and answer website on these topics.29 a nurse was writing prescriptions to herself for years on the physicians’ prescription pad. Finally, always ensure your online Board profile reflects whom you are supervising, 7) Closely monitor your advanced practice when, and for how many hours. The Board providers often cites physicians for failing to update An increased demand for health care their online profiles, and typically the cause is providers has resulted in an increased an administrative oversight.30 reliance on advanced practice providers (APPs), requiring closer monitoring from 8) Have a plan of how and when to their supervising physicians. APPs include terminate a patient relationship advanced practice registered nurses (APRNs) If you discover a patient abusing or and physician assistants (PAs). diverting controlled substances, consider terminating that professional relationship. “Prescriptive authority agreement” To do so, send the patient a letter of dismissal is the physician’s delegation of the act of on office letterhead by first-class and certified prescribing or ordering a drug or device to an mail. Maintain copies of all correspondence, APP.25 The Texas Legislature and the TMB including the certified letter return receipt, have published several requirements for in the patient’s record. State that the patient- the delegation of prescriptive authority to physician relationship will terminate in a Always APPs.26 It is important to note that neither specified time period and recommend the the MPA nor the TMB Rules authorize the patient find another physician. Refer the ensure your exercise of independent medical judgment by patient to the county medical society or to his online Board APPs. Additionally, the supervising physician or her insurance company for a list of pain profile reflects remains responsible to both the Board and his management specialists. Include in the letter or her patients for acts performed by the APP. a medical record authorization release for the whom you are patient to sign and return. Remain available supervising, Indeed, a physician may only delegate for care until the specified time period of the prescriptive authority to an APP who, termination letter elapses. Only prescribe when, and for acting under the physician’s supervision, medications within the constraints of the how many may prescribe or order a drug or device patient’s controlled substances contract. hours. as authorized by a prescriptive authority agreement.27 Unless serving a medically 9) Know the count of controlled substance underserved population or in a facility-based prescriptions generated by your office practice (i.e. in a hospital setting), a physician If the Board and DEA walked into your may only enter into a prescriptive authority office/clinic tomorrow, would you know agreement with up to seven APPs or the full- the percentage of your patients who have time equivalent of seven APPs.28 prescriptions for controlled substances? The number of controlled substance prescriptions To ensure your APPs adhere to proper can sneak up on a physician. For a physician prescribing methods, consider initiating a who cares for nursing home patients, there weekly review of a random 10% sampling of is a strong chance that more than half of your APP’s charts and prescription practices. those patients are receiving prescriptions for This kind of review would demonstrate in an controlled substances. ISC that you are performing your due diligence in supervising and monitoring APPs. In these When physicians or their APPs prescribe reviews, document your clinical impressions controlled substances for more than 50% of in the charts to show you have reviewed them. their total patients, the Board requires the practice to register as a pain management If you find an APP’s prescribing practices clinic. Specifically, Texas Occupations Code to routinely be problematic or the APP has Section 168.00131 and Board Rule Section 195.1 difficultly adhering to guidelines, consider –Pain Management Clinics: terminating that APP or not allowing the APP to prescribe while under your supervision. For Pain management clinic—A publicly or questions about supervising and delegating privately owned facility for which a majority

10 TMLT the Reporter of patients are issued, on a monthly basis, a a physician, that physician will face scrutiny prescription for opioids, benzodiazepines, from the Board for pre-signing prescription barbiturates, or carisoprodol, but not pads.34 including suboxone.32 11) Join the Texas Pain Society It is recommended that a physician require Professional pain societies help educate his or her staff to run a monthly count of total physicians on changes in the standard of care controlled substance prescriptions, and then for pain management. The mission of the personally verify the numbers. Texas Pain Society is to improve the quality of life for Texans who suffer from pain. It is a Board investigators, along with the DEA, are non-profit organization of more than 300 pain known to make unscheduled visits to a clinic practitioners involved in acute and chronic or office for a random audit of prescriptions. pain management. The Texas Pain Society Board investigators may initiate an audit on a represents the practice of pain medicine If a physician specific office because of a patient complaint in Texas with a seat on the Texas Medical is prescribing or simply because that clinic was next in line Association’s House of Delegates.35 for a random visit. In an audit, physicians controlled will want to know their controlled substance 12) Hold patients accountable for “lost” or substances prescription numbers and have a spreadsheet “stolen” medication to more available to offer auditors. Being able to Patient claims of lost or stolen prescriptions account for prescriptions in an organized should be viewed with skepticism. The TMB than 50% of manner will allow the physician to effectively is very suspicious of physicians who continue patients, then defend against accusations of running an to prescribe to patients whose medications are unlicensed pain management clinic. lost or stolen. Document the incident in the that physician medical record, and use your best judgment must register Therefore, if a physician is prescribing in deciding whether to continue prescribing controlled substances to more than 50% of to the patient. One option may be to ask for his or her patients, then that physician must register his a police report for stolen medication before clinic with or her clinic with the Board. Chapter 195 of writing a new prescription. the Board the Board rules explains how to obtain a pain management clinic certificate. By having this 13) Never prescribe to friends or family as a pain certificate, these physicians are not subject Physicians often write prescriptions management to a random audit because they are following for family or friends without conducting Board requirements.32 a required exam or creating a medical clinic. record.36 While you may want to help, writing A statutory exemption from pain prescriptions for family members or friends management clinic status is held for clinics for controlled substances is viewed skeptically that are “owned or operated by a physician by the Board —even in an “immediate need” who treats patients within the physician’s area scenario.37 Have your friends and family see of specialty and who personally uses other another physician. forms of treatment, including surgery, with the issuance of a prescription for a majority of the CONCLUSION patients.”33 In the instance of a random audit, a Pain management is highly scrutinized, physician will need to consider if claiming the so physicians must practice aggressive risk exemption is worth the potential legal fees and management. When in doubt about whether hassle from the Board if found to be operating something should be documented or explained an unregistered pain management clinic. Keep more thoroughly, document it. Physicians are in mind that physicians can have their licenses never scrutinized for overly adequate medical revoked for operating an unregistered pain records, but inadequate records can paint management clinic. a negative picture of the physician. Screen patients and use sound clinical judgment when 10) Don’t pre-sign prescription pads prescribing controlled substances. When in While it may seem obvious, it is always doubt about your pain management protocols, worth repeating: Do not pre-sign prescription please consult TMLT’s Risk Management pads. Should a complaint arise involving a Department or an attorney who can advise you patient who had pre-signed prescriptions from or help you create a plan to minimize your risk.

2015 VOLUME 4 11 CME Resources and Crimes. Chapter 481. Texas Controlled Activity 1 Texas Medical Board Mission Statement. Substances Act. Available at: http://www. Texas Medical Board website. Available at: statutes.legis.state.tx.us/Docs/HS/htm/ www.tmb.state.tx.us. Accessed May 12, 2015. HS.481.htm#00. Accessed May 6, 2015. 2 Texas Occupations Code. Section 152.001. 12 U.S. Department of Justice. Office of Available at http://www.statutes.legis.state. Diversion Control. Title 21 United States tx.us/Docs/OC/htm/OC.152.htm. Code (USC) Controlled Substances Act, 2012 Accessed August 24, 2015. Edition, Title 21. Chapter 13 – Drug Abuse 3 Texas Occupations Code. Chapter 154. Prevention and Control. Available at: http:// Available at: http://www.statutes.legis.state. www.deadiversion.usdoj.gov/21cfr/21usc/. tx.us/SOTWDocs/OC/htm/OC.154.htm. Accessed May 6, 2015. Accessed August 24, 2015. 13 United States Drug Enforcement 4 Krupa, Carolyne: Medical boards get Administration. Mission Statement. more tools to investigate physicians. Available at: http://www.dea.gov/about/ American Medical News, June 4, 2012. mission.shtml. Accessed May 6, 2015. Available at: http://www.amednews.com/ 14 U.S. Department of Justice. Office of article/20120604/profession/306049944/1/. Diversion Control. DEA Office of Diversion Accessed August 24, 2015. Control at http://www.deadiversion.usdoj.gov/ 5 Roser, Mary Ann: Texas doctors rarely drugreg/process.htm. Accessed May 6, 2015. charged in prescription abuse. Associated 15 Texas Department of Public Safety. Press, January 4, 2015. Available at: Controlled Substances Registration. http://www.washingtontimes.com/ Available at: http://www.dps.texas.gov/RSD/ news/2015/jan/4/texas-doctors-rarely- ControlledSubstances/index.htm. charged-in-prescription-abuse/?page=all. Accessed May 5, 2015. Accessed May 7, 2015. 16 Texas Administrative Code. Title 22, Part 6 An Agreed Order is an agreement signed 9. Chapter 170, Section 170.3. Minimum by the physician and the Board, where the Requirement of the Treatment of Chronic physician admits to a violation of the Medical Pain. Available at: http://texreg.sos.state.tx.us/ Practice Act, Board Rules, or State/Federal public/readtac$ext.TacPage?sl=R&app=9&p_ Law related to the practice of medicine. An dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_ Agreed Order is disciplinary in nature and tac=&ti=22&pt=9&ch=170&rl=3. public, meaning it’s visible on the physician’s Accessed August 25, 2015. public profile. 17 Texas Administrative Code. Title 22, Part 9. 7 Texas Administrative Code, Title 22, Part Chapter 170, Section 170.2 (6); Definitions. 9. Chapter 170, Section 170.1-170.3. Pain Available at http://www.tmb.state.tx.us/idl/ Management. Available at: http://www.tmb. E56CB2B5-9722-E52F-3713-8423E08696DE. state.tx.us/idl/E56CB2B5-9722-E52F-3713- Accessed August 25, 2015. 8423E08696DE. Accessed August 25, 2015. 18 Texas Occupations Code. Title 3, Chapter 8 If a physician turns down a Board’s offer of 164, Section 164.53(a)(3): Unprofessional or an Agreed Order or Remedial Plan, the Board Dishonorable Conduct. Available at: Staff will then file a complaint against the http://www.statutes.legis.state.tx.us/Docs/ physician at the State Office of Administrative OC/htm/OC.164.htm#164.053. Hearings. The complaint, even if the physician Accessed August 25, 2015. fully prevails at the hearing, remains public on 19 Texas Occupations Code. Title 3, Chapter the physician’s online Board profile for years. 164, Section 164.53(a)(4): Unprofessional or 9 Texas Occupations Code. Available at: http:// Dishonorable Conduct. Available at: www.tmb.state.tx.us/page/practice-acts. http://www.statutes.legis.state.tx.us/Docs/ Accessed August 25, 2015. OC/htm/OC.164.htm#164.053 10 Texas Occupations Code. Title 3, Chapter Accessed August 25, 2015. 164, Section 164.053 (a)(5): Unprofessional 20 Texas Occupations Code. Title 3, Chapter or Dishonorable Conduct. Available at: http:// 164, Section 164.53(a)(6): Unprofessional or www.statutes.legis.state.tx.us/Docs/OC/ Dishonorable Conduct. Available at: htm/OC.164.htm. Accessed August 25, 2015. http://www.statutes.legis.state.tx.us/Docs/ 11 Texas Health and Safety Code. Title 6. Food, OC/htm/OC.164.htm#164.053. Drugs, Alcohol, and Hazardous Substances. Accessed August 25, 2015. Subtitle C. Substance Abuse Regulation 21 U.S. Department of Health and Human

12 TMLT the Reporter Services. Office for Civil Rights. A Patient’s tac=&ti=22&pt=9&ch=173&rl=3. Guide to the HIPAA Privacy Rule: When Accessed August 24, 2015. Health Care Providers May Communicate 31 Texas Occupations Code. Title 3, Chapter with Your Family, Friends, or Others 168, Section 168.001: Regulation of Pain Involved in Your Care. Available at: Management Clinics. Available at: http:// http://www.hhs.gov/ocr/privacy/hipaa/ www.statutes.legis.state.tx.us/Docs/OC/ understanding/consumers/consumer_ffg.pdf. htm/OC.168.htm#168.001. Accessed August 24, 2015. Accessed August 25, 2015. 22 Texas Department of Public Safety. Reports 32 Texas Administrative Code, Title 22, Part & Statistics, Prescription Access in Texas 9. Chapter 195. Pain Management Clinics. (PAT). Available at: https://www.txdps.state. Section 195.1-195.4. Available at: tx.us/RSD/ControlledSubstances/Reports/ http://www.tmb.state.tx.us/idl/E56CB2B5- PAT.htm. Accessed August 25, 2015. 9722-E52F-3713-8423E08696DE. 23 Texas Administrative Code. Title 22, Part Accessed September 8, 2015. 9. Chapter 170, Section 170.2; Definitions. 33 Texas Occupations Code. Title 3, Chapter Available at http://www.tmb.state. 168, Section 168.002 (7): Exemptions. tx.us/idl/E56CB2B5-9722-E52F-3713- Available at: http://www.statutes.legis.state. 8423E08696DE. Accessed September 8, 2015. tx.us/Docs/OC/htm/OC.168.htm. 24 Texas Department of Public Safety. Texas Accessed August 24, 2015. Prescription Program FAQs. Available 34 Texas Administrative Code. Title 37, at http://www.txdps.state.tx.us/RSD/ Part 1, Chapter 13, Section 13.185(b)(2): PrescriptionProgram/prefaqs.htm. Official Prescription Form. Available Accessed May 7, 2015. at: http://texreg.sos.state.tx.us/public/ 25 Texas Occupations Code. Title 3: Chapter readtac$ext.TacPage?sl=R&app=9&p_ 157, Section 157.051 (14): Prescriptive dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_ authority agreement. Available at: http:// tac=&ti=37&pt=1&ch=13&rl=185. www.statutes.legis.state.tx.us/Docs/OC/ Accessed August 25, 2015. htm/OC.157.htm#157.006. 35 Texas Pain Society. Available at http://www. Accessed May 6, 2015. texaspain.org/. Accessed May 6, 2015. 26 Texas Administrative Code. Title 22, Part 36 Texas Medical Board Rules. Chapter 190, 9, Chapter 193, Section 193.6: Delegation Disciplinary Guidelines. Section 190.8 (1) of Prescribing and Ordering Drugs and (M)(i). Available at http://www.tmb.state. Devices. Available at: http://www.tmb.state. tx.us/idl/E56CB2B5-9722-E52F-3713- tx.us/idl/0887C012-11F5-D3DE-8D84- 8423E08696DE. Accessed August 24, 2015. 6734AE32A789. Accessed August 24, 2015. 37 Texas Medical Board Rules. Chapter 190, 27 Texas Occupations Code. Title 3: Chapter Disciplinary Guidelines. Section 190.8 (1) 157, Section 157.0512 (a): Prescriptive (M) (ii). Available at http://www.tmb.state. authority agreement. Available at: http:// tx.us/idl/E56CB2B5-9722-E52F-3713- www.statutes.legis.state.tx.us/docs/OC/ 8423E08696DE/. Accessed August 24, 2015. htm/OC.157.htm. Accessed August 24, 2015. 28 Texas Occupations Code. Title 3: Chapter 157, All examples are hypothetical scenarios and Section 157.0512 (c): Prescriptive authority not based upon actual physicians or cases. agreement. Available at: http://www.statutes. This article is purely informational and not legis.state.tx.us/Docs/OC/htm/OC.157.htm. intended to be legal advice and should not be Accessed August 24, 2015. construed as such. 29 Texas Medical Board Supervision and Prescriptive Delegation Registration Franklin Hopkins can be reached at at http://www.tmb.state.tx.us/page/ 512-750-8020 or at supervision-and-prescriptive-delegation. [email protected]. Accessed May 6, 2015. 30 Texas Administrative Code. Title 22, Part 9, Chapter 173, Section 173.3 Physician-Initiated Updates. Available at: http://texreg.sos.state.tx.us/public/ readtac$ext.TacPage?sl=R&app=9&p_ dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_

2015 VOLUME 4 13 Risk management services: outcomes and trends Study finds correlation between risk management and claim loss.

By Lesley Viner, MS, Assistant Vice President, Risk Management

In 2014, TMLT initiated an analysis who participated in risk management to quantify the value of services offered activities when compared with those who by its Risk Management Department to did not participate. The data was actuarially policyholders. Specifically, TMLT evaluated adjusted for losses based on policyholders risk management’s practice reviews and across specialty, limits of liability, territory continuing medical education (CME) of practice, number of years in practice, and programs. A goal of the analysis was to ensure multi-claim events (i.e. multiple physicians these services resonated with policyholders in one lawsuit). The data was collected from and with today’s rapidly changing health care a specific time frame to allow for an adequate environment. sample. Only post tort reform data was included in the study. The results? The analysis determined that a correlation does exist between a physician’s STUDY ANALYSIS: RISK TRENDS AND participation in risk management activities ISSUES and the physician’s claim payments. Results The analysis also helped to identify risk indicated that average claim payments, both trends and “hot button” issues currently indemnity and expense, were reduced for being experienced by our policyholders. This physicians participating in practice reviews data was collected and categorized by the and CME courses. Risk Management Department based on: • top recommendations made by TMLT’s Findings were based on the frequency and risk managers to policyholders following a severity of claim payments for policyholders practice review;

14 TMLT the Reporter • most requested CME program topics; and • provides customized feedback with • most frequent topics addressed with a confidential, written summary to policyholders during phone and e-mail outline areas for improvement and offers consultations. strategies for risk reduction.

This data is used to develop new TMLT Below are samples of the top practice risk management activities and modify review issues and recommendations made existing programs and services. to participating policyholders by TMLT risk managers in 2014. DATA CATEGORIZED BY TMLT PRODUCTS AND SERVICES: Electronic health record (EHR) policies & 1. Practice Reviews procedures During a practice review, a TMLT risk Practice does not have written policies management professional: for EHR processes, or current policies need • evaluates medical record documentation additions. Federal privacy and security rules to increase defensibility; require that practices develop protocols • reviews practice policies and procedures to protect the integrity and security of to ensure protocols are appropriate; electronic protected health information • tours the practice or provides a remote (PHI). Policies should be signed by the assessment; and physician and include implementation

2015 VOLUME 4 15 dates. Staff members should sign and date Documenting patient education their acknowledgement of review and All forms of patient education were not understanding. consistently captured in the medical record. Patient education, in any form, should be Pre-formatted text or templates in EHRs documented in the medical record to verify Pre-formatted text or templates in the EHR that the patient was provided with pertinent reflected inaccurate or outdated information. information regarding care. Documentation When using pre-formatted text or templates of discussion points, pamphlets, videos, in electronic health records, edit entries as handouts, and pre/post treatment instructions necessary to ensure the record accurately provides evidence that the patient was given reflects the clinical care delivered. the information needed to make an informed decision. Adding these elements to an existing Signing and locking notes in the EHR template can facilitate documentation of Patient progress notes in the EHR patient education. were not promptly signed and locked. It is recommended that the physician complete, Documentation of diagnostic report review sign, and lock each patient encounter note as Incoming consultant reports, diagnostic It is soon as possible after the patient is seen. This results, or outside tests did not include recommended action protects the note from any additional physician or provider initials and date entries that could be perceived as record reviewed, or review was unclear. All test results that the alterations. should be reviewed, electronically signed or physician initialed, and dated before scanning or filing in complete, Documenting after-hours calls the record. Documentation of the physician’s Documentation of after-hours patient review demonstrates that results were seen sign, and lock telephone calls was not evident in the medical in a timely manner. When appropriate, each patient record. Documenting after-hours calls and documentation regarding actions or inactions any instructions given to patients in their on specific results and the rationale should be encounter medical records is recommended. This noted in the patient’s record. note as soon as information can serve the physician and subsequent caregivers in providing patient 2. CME programs possible after care and is also evidence of the instructions TMLT is accredited by the Accreditation the patient is given to the patient in response to specific Council for Continuing Medical Education seen. medical complaints. (ACCME) to provide CME for physicians, and has received the ACCME’s highest Tracking system level of recognition – Accreditation with The practice has no consistent process to Commendation. Frequent CME topics track consultant referrals, lab, or diagnostic presented include informed consent, TMB tests. When patients are referred to rules, EHR guidelines, and social media. consultants or to an outside source for lab or diagnostic tests, a tracking system is TMLT CME opportunities include: recommended to ensure that the patient is • online CME activities at seen and results are received. http://tmlt.inreachce.com/; • CME in the Reporter; Documentation of informed consent • Case Closed CME, TMLT’s book series Oral and/or written informed consent featuring closed claim studies; was not consistently documented in the • live seminars; and medical record. Texas law places the duty • practice-based CME (personalized CME of providing informed consent on the offered in conjunction with the practice physician or the health care provider review). performing the procedure. A reference to the informed consent discussion with Top requested CME topics in 2014: the patient should be documented in the • Texas Medical Board (TMB) rules and patient’s record. Doing so provides the complaints; physician with increased defensibility • review of malpractice cases; should an adverse event occur. • HIPAA compliance; • best practices in EHR;

16 TMLT the Reporter • legislative updates; SUMMARY • cyber liability; To benefit physicians, patients, and • health care reform; and medical liability premiums, TMLT • appropriate termination of the physician- encourages policyholders to take advantage of patient relationship. risk management services. Doing so may have a positive impact on claims and defensibility. 3. Phone and e-mail consultations A risk management professional is As an added incentive, discounts are available Monday through Friday during also available for TMLT policyholders. business hours for confidential consultations Physicians who complete a practice review with TMLT policyholders. may be eligible for a 5% premium discount once practice review recommendations are Top phone call and email consultation met. One hour of ethics credit is also given topics in 2014: to physicians for participating in practice • appropriate termination of the physician- review wrap-up sessions. patient relationship; • medical records; Physicians can earn a 3% discount by • HIPAA compliance; participating in TMLT CME courses. Two • selling/closing a practice; courses can be taken per policy year for up to TMLT • staff issues; a 6% discount. Courses must be at least 2.5 • TMB/regulatory; hours in length to qualify. provides • general office; and sample • prescriptions Contact the Risk Management Department resources at 800-580-8658 for more information 4. Sample resources regarding services, discounts, and scheduling. to assist TMLT provides sample resources to physicians assist physicians with implementing risk Lesley Viner can be reached at management best practices. Sample tools [email protected]. with include: implementing • consent forms; • medication forms; risk • tracking logs; management • HIPAA and regulatory resources; and best practices. • letters to patients.

3% 5% 6% 1 CME Course Practice Review 2 CME Courses

2015 VOLUME 4 17 Closed1 Claim STUDY Alleged unnecessary surgery

By Laura Hale Brockway, ELS, Director of Marketing Communications, and Louise Walling, Sr. Risk Management Representative

PRESENTATION On June 15, an 85-year-old woman was taken by ambulance to the emergency department. She had been experiencing abdominal pain, generalized weakness, diarrhea, nausea, and vomiting for two days. Her medical history included dementia, hypertension, and a ventral hernia repair.

An abdominal CT revealed an anterior ventral hernia containing non-obstructed bowel loop. In the radiology report, there was no mention of the gallbladder.

PHYSICIAN ACTION was not acute. He also noted the presence The admitting internal medicine physician of a large anterior abdominal wall hernia believed the patient’s right upper quadrant containing non-obstructed bowel loops. The pain was suggestive of gallbladder disease. general surgeon suggested surgery only on an He ordered an ultrasound and a hepatobiliary emergent basis. scan, though the hepatobiliary scan was not performed. The hepatobiliary scan revealed “Small liver. Nonvisualization of gallbladder The radiologist, a defendant in this case, compatible with cystic duct obstruction and interpreted the ultrasound and documented acute cholecystitis. Dilated hepatic duct “…multiple echogenic defects within the and CBD and ectasia of the CBD distally and gallbladder. The gallbladder wall is thickened protruding into the pancreatic head area. No at 4.6 mm.” The patient was diagnosed with biliary obstruction.” cholelithiasis and cholecystitis. A consult with a general surgeon was requested. After speaking with the admitting physician, the general surgeon agreed to Based on the patient’s symptoms and the perform surgery on June 20. results of the ultrasound, the general surgeon ordered a hepatobiliary scan with gallbladder The general surgeon performed an open ejection fraction to make sure the cholecystitis laparotomy and first learned the patient did

18 TMLT the Reporter not have a gallbladder and that clips were general surgeon to further explore the cause of in place from prior surgery. He also noted the patient’s symptoms. that the abdominal wall was virtually non- existent, measuring approximately 3 mm in Defense experts who reviewed this case thickness. The general surgeon irrigated the expressed similar criticism. area and removed all fluids, placed a drain, and attempted repair of the subcostal hernia. Additionally, the defense of this case was compromised by documentation and After the surgery, the patient went on to communication issues. The co-defendant develop leukocytosis, bandemia, and sepsis. radiologist documented that the hepatobiliary She became incontinent and nauseated with scan was a “technically limited study.” He greenish emesis. Studies revealed a small testified that such phraseology is typically bowel obstruction, but the general surgeon adequate to put the referring physician on felt that surgery to repair the obstruction notice to not rely on the study. The patient’s was too risky. He recommended palliative family also testified that they repeatedly management with admission to hospice. asked the general surgeon to call the patient’s primary care physician to obtain the patient’s On July 17, the patient was transferred to extensive medical history. another facility. After refusal by a number of surgeons, the family found a surgeon to explore In reviewing the patient’s hospital records the patient’s incarcerated incisional hernia. from two years earlier, the notes from a CT That surgeon found two strangulated internal scan of the abdomen indicated the patient had hernias within the sac, with perforation and a prior cholecystectomy. Neither the general ischemic changes. The surgeon also found an surgeon nor the radiologist had seen this ischemic ileum that required re-section and report. re-anastomosis. DISPOSITION The patient’s condition worsened and This case was settled on behalf of the she developed deep vein thrombosis and a C. general surgeon and the radiologist. difficile infection. She died on August 16. RISK MANAGEMENT CONSIDERATIONS ALLEGATIONS Obtaining and recording a thorough A lawsuit was filed against the radiologist medical history is a requirement for an and the general surgeon. The plaintiffs adequate medical record. When a patient is alleged the general surgeon was negligent unreliable – in this case due to dementia - it when he performed surgery to remove is particularly important to request medical the patient’s gallbladder when there was records from previous or current health care sufficient evidence to make him question providers. the presence of the gallbladder. They alleged the radiologist was negligent when he The surgeon initially documented that he misinterpreted the gallbladder study. would perform surgery only on an emergent basis. He changed his mind and took the LEGAL IMPLICATIONS patient to the operating room 48 hours The plaintiff’s expert was critical of the later. Had he documented his rationale, he general surgeon for taking the patient to would have had his clinical reasoning and surgery after indicating he would only do so observations in writing. When a physician on an emergent basis. Further, documentation documents his or her clinical rationale, it showed the patient had no right upper may assist in deciding if the objective facts quadrant pain and a non-tender, non- represent a well-reasoned plan of care. distended abdomen on the day of the surgery. The results of the patient’s labs—in particular Laura Hale Brockway can be reached at her liver function tests and her bilirubin— [email protected]. were also normal. Also documented were the results of the hepatobiliary scan, which noted Louise Walling can be reached at non-visualization of the gallbladder. Taken at [email protected]. together, these facts should have alerted the

This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased2015 the VOLUME physician’s 4 defensibility. This study has been modified to protect the privacy of the physicians and the patient. 19 Closed2 Claim STUDY Failure to follow up

By Louise Walling, Sr. Risk Management Representative, and Wayne Wenske, Communications Coordinator

PRESENTATION In November 2001, a 55-year-old man with a 15-year history of smoking went to his internal medicine physician with complaints of chest pain. The patient underwent a chest x-ray that revealed a nodule in the right lower lung. A subsequent CT scan showed scattered abnormalities but no lymphadenopathy.

The physician referred the patient to a pulmonologist who believed the nodules to be benign. Follow up CT scans were conducted in January and May 2002 and May 2003. These scans were all interpreted as stable with no disease in the mediastinum. In May 2004, a CT scan showed several small lung nodules that were believed to be of no significance.

PHYSICIAN ACTION According to the medical center In September 2005, the patient returned to records, a fax was sent to the internal the internal medicine physician and reported medicine physician with the results and sinus symptoms. In the electronic health recommendations the same day the CT scan record, the physician noted the patient’s lung was conducted. A copy of the CT imaging nodule and her recommendation that the study was provided on a disk to the patient so patient begin annual CT scans. On January he could provide it to his physician. 4, 2006, the patient had a CT scan at a local medical center at the physician’s referral. The The patient returned to the internal medical center’s radiologist interpreted the medicine physician nine times between results as showing a “mildly enhancing soft May 2006 and February 2007 for various tissue density in the anterior mediastinum complaints. At no time during these anterior to the ascending aorta. The lesion is appointments was the January 2006 CT scan measured 2 cm in diameter.” The radiologist discussed or the disk given to the physician. noted that the density could represent a lymph node or thymic remnant. He also noted, In March 2007, another CT scan of the “Significant lesion cannot be ruled out.” He patient was ordered. The radiologist noted recommended follow up imaging to evaluate a significant change in the appearance of the stability of the lesion. the mediastinal lesion when compared to

20 TMLT the Reporter the January 2006 scan. Once the internal study she requested. This failure resulted medicine physician retrieved the January in delayed diagnosis and treatment of the 2006 report and compared the two studies, patient’s cancer. The suit alleged that the she referred the patient to an oncologist. patient progressed from a Stage I-II cancer with a five-year survival rate greater than 75% The patient was diagnosed with non- to a Stage IV cancer with a five-year survival keratinizing thymic cancer and started on rate of less than 10%. chemotherapy. A complete work up revealed that the patient had lesions in the lungs, The plaintiff alleged the radiologist lymph nodes, and bones. The oncologist told neglected his duty to call the physician the patient that the cancer was incurable and to report the “non-routine” change in that his life expectancy was short. the patient’s chest lesion found in the January 2006 scan. The plaintiff further ALLEGATIONS alleged that the medical center failed to A lawsuit was filed against the internal ensure the radiology reports were properly medicine physician, the radiologist, and the communicated to the internal medicine medical center that employed the radiologist. physician. The plaintiff alleged that the physician failed to follow up on the January 2006 imaging

2015 VOLUME 4 21 2 Closed LEGAL IMPLICATIONS It is recommended for physicians to Claim TMLT consultants were concerned about implement a tracking system in their STUDY whether the internal medicine physician practices to track laboratory and diagnostic actually received the January 2006 fax from tests. When patients are referred to a the radiologist. The physician maintained that consultant or to an outside facility for testing, she never received it, and her electronic health a tracking system is crucial to ensure that records did not note receipt of the CT results. the patient is seen; results are received and However, the medical center’s fax records reviewed by the physician; and the patient is showed otherwise. informed in a timely manner. Practices may decide to use a paper system with a folder of A radiologist consultant who reviewed this pending files that may be kept for laboratory case for the defense supported the radiologist’s and diagnostic reports and referrals. Another actions. The consultant stated that the option may be to use a diary system to log the standard of care did not require the radiologist order date of the test or referral and when the to call the ordering physician with the results results are received. Most electronic health when the report was apparently sent the same record systems have a feature for tracking day as the study. The consultant noted that the tests and referrals, including the date a test is responsibility for obtaining CT results falls ordered and the date results are received. on the ordering physician, especially if the physician experiences a delay in receiving the The tracking system can be written into results. a practice’s formal policies and procedures, including processes for handling and routing Experts for the plaintiff maintained that the the results of tests and referrals. Delegation internal medicine physician failed to properly of the tracking system to a staff person, follow up on the study she ordered. They with others trained in case of absence, is also maintained that the American College recommended. This job duty could also be of Radiology guideline for communication written into a staff member’s job description requires a radiologist to contact the ordering with emphasis on the importance of handling physician when results from an imaging study clinical information. are urgent, discrepant, or unexpected.1 The plaintiff’s position was that the mediastinal Source mass was an unexpected finding and 1 American College of Radiology. The ACR warranted a phone call from the interpreting practice guideline for communication radiologist to the physician. of diagnostic imaging findings. (Revised 2010, Resolution 11). Reston, VA: DISPOSITION American College of Radiology; 2010:1–6. This case was settled on behalf of Available at http://www.medscape.com/ the internal medicine physician and the viewarticle/760153_3. radiologist. The result of the lawsuit against Accessed August 28, 2015. the hospital is unknown. Louise Walling can be reached at RISK MANAGEMENT CONSIDERATIONS [email protected]. The internal medicine physician ordered a diagnostic test for the patient and thereby Wayne Wenske can be reached at had the responsibility to review the results, [email protected]. discuss the findings with the patient, and treat appropriately. The physician had nine face-to-face opportunities to discuss the CT results. Had follow-up to the imaging been pursued soon after the CT findings were interpreted, the patient’s prognosis may have improved.

This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. This study has been modified to protect the privacy of the physicians and the patient. To learn more or to register, please visit tmlt.inreachce.com or call 800-580-8658 x 5050

22 TMLT the Reporter LEARN FROM Risk Management Fall Seminar 2015 LEARNREAL-LIFE FROM Risk Management Fall Seminar 2015 MALPRACTICEREAL-LIFE MALPRACTICECLAIMS CLAIMS

REGISTER TODAY FOR TMLT’S 2015 RISK MANAGEMENT FALL SEMINAR SERIES

REGISTER TODAY FOR TMLT’S 2015 RISK MANAGEMENT FALL SEMINAR SERIES Exploring real-life claims presents all of us with an opportunity to learn. With every patient Dates and Locations: visit, scenariosREGISTER can arise TODAY that present FOR aTMLT’S physician 2015 with aRISK variety MANAGEMENT of decisions to make FALL SEMINAR SERIES Exploringregarding real-lifediagnosis, claims treatment, presents communication, all of us with an medications, opportunity to records, learn. With and every much patient more. DatesHouston and Locations: visit,Physicians scenarios make can the arise best thatdecisions present they a physiciancan in the with moment a variety and of with decisions the information to make Thursday, October 22 regardingthey have.Exploring diagnosis, But sometimesreal-life treatment, claims what presents communication,seems like all ofa well-informedus medications, with an opportunity and records, reasonable to and learn. much action more. can Marriott Medical Center Hotel With every patient visit, scenarios can arise that present a physician Houston Physicianslead to allegations make the of bestmisdiagnosis, decisions lack they of can timeliness, in the moment improper and performance with the information and more. Thursday, October 22 with a variety of decisions to make regarding diagnosis, treatment, Dates and Locations: they have.with Buta variety sometimes of decisions what seems to makelike a well-informedregarding diagnosis, and reasonable treatment, action can MarriottSan Antonio Medical Center Hotel communication, medications,medications, records,records, and and much much more. more. Physicians As physicians, make Tuesday, October 27 leadThis fall,to allegations TMLT offers of Real misdiagnosis, Claims: Lessons lack of timeliness,Learned on improper the Front performance Lines. Instructor and more. Dan Houston thewe bestmake decisions the best they decisions can in the we moment can in andthe withmoment the information and with theythe Marriott Northwest Hotel Ballard, JD* will lead an interactive seminar that will: Thursday,San Antonio October 22 have.information But sometimes we have. whatBut sometimes seems like whata well-informed seems like anda well-informed reasonable Tuesday, October 27 This fall, TMLT offers Real Claims: Lessons Learned on the Front Lines. Instructor Dan MarriottFort WorthMedical Center Hotel action can lead to allegations of misdiagnosis, lack of timeliness, Marriott Northwest Hotel Ballard,• Discussand JD reasonable* will lessons lead an actionlearned interactive can from lead seminar real to allegationsmedical that will: liability of misdiagnosis, cases and lackmedical of board Thursday, November 12 impropertimeliness,investigations; performance, improper performance and more. and more. SanWorthington Antonio Renaissance Hotel Fort Worth • Discuss Analyze thelessons risk management learned from considerations real medical fromliability those cases cases; and and medical board Tuesday, October 27 MarriottThursday, Northwest November Hotel 12 • Thisinvestigations;Describe fall, TMLT how offersthese Real scenarios Claims: are Lessons affected Learned by new on therules Front pertaining Lines. to EHR WorthingtonDallas Renaissance Hotel Instructordocumentation Dan Ballard, and supervising JD will lead mid-level an interactive providers. seminar that will: Thursday, November 19 • Analyze the risk management considerations from those cases; and FortRenaissance Worth Hotel • Describe how these scenarios are affected by new rules pertaining to EHR Thursday,Dallas November 12 Enjoy dinner• documentationDiscuss and network lessons and withsupervising learned your colleagues from mid-level real while providers.medical earning liability 2.5 CMEcases credits, and 1 ethics WorthingtonThursday, NovemberRenaissance 19 Hotel RenaissanceAustin Hotel credit, andmedical a 3% premium board investigations; discount on your next eligible policy period. Tuesday, December 1 • Analyze the risk management considerations from those cases; and DallasRenaissance Hotel Enjoy dinner and network with your colleagues while earning 2.5 CME credits, 1 ethics Austin credit, • andDescribe a 3% premium how these discount scenarios on your are next affected eligible by policy new rules period. pertaining Thursday, November 19 RenaissanceTuesday, December Hotel 1 CME CREDIT.to TMLT EHR is documentationaccredited by the Accreditation and supervising Council mid-levelfor Continuing providers. Medical Education (ACCME) to Renaissance Hotel provide continuing medical education for physicians. TMLT designates this live activity for a maximum of 2.5 To learn more or to AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of Austin CME CREDIT.Enjoy TMLTdinner is accredited and network by the Accreditationwith your colleagues Council for Continuing while earning Medical 2.5Education CME (ACCME) to register, please visit their participation in the activity. Tuesday, December 1 provide credits,continuing 1 medicalethics educationcredit, and for physicians.a 3% premium TMLT designates discount this on live your activity next for eligible a maximum of 2.5 tmlt.inreachce.com RenaissanceTo learn Hotel more or to AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of or call WHO SHOULDpolicy ATTEND.period. This 2.5-hour interactive program is intended for physicians of all specialties who are register, please visit their participation in the activity. 800-580-8658 x 5050 interested in practical ways to reduce the potential for medical liability. tmlt.inreachce.com or call WHO SHOULD ATTEND. This 2.5-hour interactive program is intended for physicians of all specialties who are 800-580-8658 x 5050 interested in practical ways to reduce the potential for medical liability. Registration and dinner: 6 pm TMLT Policyholders: $100 Register online 2 or more weeks before the seminar Program: 6:30 toRegistration 9 pm and dinner: 6 pmNon-policyholders: $150 TMLT Policyholders:and $100receive a $10 discount. Registration and Program:dinner: 6 pm 6:30 to 9 pm TMLT Policyholders: $100 Non-policyholders:Register $150 online 2 or more weeks before the seminar Program: 6:30 *Danto 9 pmBallard, JD has no commercial affiliations/interestsNon-policyholders: to disclose $150 related to this program and receive a $10 discount. To learn more or to register, please visit tmlt.inreachce.com or call 800-580-8658 x 5050

To learn*Dan more Ballard, or toJD hasregister, no commercial please affiliations/interests visit www.tmlt.org/cme to disclose related or call to this 800-580-8658 program 2015 VOLUME 4 23 Texas Medical Liability Trust the Pre-sorted Standard U.S. Postage REPORTER PAID TEXAS MEDICAL LIABILITY TRUST Permit No. 90 P.O. Box 160140 Austin, Texas Austin, TX 78716-0140 800-580-8658 or 512-425-5800 E-mail: [email protected] www.tmlt.org EDITORIAL COMMITTEE Robert Donohoe President and CEO John Devin Senior Vice President, Operations Sue Mills Senior Vice President, Claim Operations Laura Hale Brockway, ELS Director, Marketing Communications EDITOR Wayne Wenske

ASSOCIATE EDITOR Louise Walling CONTRIBUTOR Franklin Hopkins STAFF Diane Adams | Stephanie Downing | Olga Maystruk Robin Robinson | Lesley Viner DESIGN Graphic Engine Design the Reporter is published by Texas Medical Liability Trust as an information and educational service to TMLT policyholders. The information and opinions in this publication should not be used or referred to as primary legal sources or con- strued as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the partic- ular facts and circumstances of each individual case and no generalizations can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor its affiliates are engaged in rendering legal services. © Copyright 2015 TMLT

Want CLOSED CLAIM STUDIES sent DIRECTLY TO YOUR INBOX?

Receive one study each month with TMLT’s Case Closed e-newsletter, a publication featuring closed claim studies.

Subscribe at goo.gl/Nh10dr

TMLT the Reporter | 2015 VOLUME 4