March/April ECMS Bulletin 2013

As a physician my day to day practice entailswriting narcotic prescription medication for patientswho have chronic non-malignant pain. “Chronicnon-malignant pain” means pain unrelated to canceror rheumatoid arthritis which persists beyond theusual course of disease or the injury that is the causeof the pain or more than 90 days after surgery.Florida physicians that prescribe any controlledsubstance for the treatment of chronic nonmalignantpain must designate themselves as a controlledsubstance prescribing practitioner on the physician’spractitioner profile. Per Florida state law patientsbeing prescribed pain medications are required tosign a narcotic contract with the prescribingphysician. In part, the narcotic contract states thatpatients will only get their controlled substance fromthe prescribing physician, but how do we reallyknow patients are being true to their contract?

Enter the Electronic-Florida Online Reporting ofControlled Substances Evaluation Program or E-FORCE. This is a prescription drug monitoringProgram founded in 2009 by the legislature to helpphysicians safely prescribe controlled substance topatients and be aware of what controlled substancestheir patients are receiving from them and otherphysicians. Although founded in 2009 E-FORCE didnot become operational until September 1, 2011. E-FORCE access is not mandatory for physicians thatprescribe or dispense controlled substances but isencouraged to help improve patient care by helpingidentify patients who are “doctor shopping” or fillingcontrolled substance prescriptions early. There arecurrently more than 19,000 practitioners in Floridathat have access to E-FORCE and health carepractitioners can register to have access by requestingan account at: www.hidinc.com/flpdmp.

How does E-FORCE work? E-FORCE is adatabase that collects and stores schedule II, III, andIV controlled substance dispensing information.Once a controlled substance prescription is

dispensed it must be reported to E-FORCE withinseven (7) days where it is stored for otherparticipating practitioners to have access. Thefollowing information must be reported with eachprescription:• Name of the prescribing practitioner and theprescribing practitioner’s federal Drug EnforcementAdministration (DEA) number;• Prescribing practitioner’s National ProviderIdentification (NPI) number;• Date of the prescription;• Refill number;• Patient’s method of payment;• Patient’s full name, address, date of birth andgender;• Name, National Drug Control (NDC) number,quantity and strength of the controlled substancedispensed;• Full name, DEA number and address of thepharmacy or other location from which a controlledsubstance was dispensed;• Name of the pharmacy or practitioner, other than apharmacist, dispensing the controlled substance andthe practitioner’s NPI

In my practice, I use E-FORCE daily to givebetter patient care by looking up a report (calledPatient Advisory Report) for each one of my patientsthat I prescribe controlled substances to prior to theiroffice visit. This report lists the controlled substancesthat the patient has received and the pharmacy theyreceived it from as well as other information asmentioned about. I am able to check that the patientis or is not compliant with getting their controlledsubstances from the same pharmacy and only fromme and that they are getting them on time withoutearly refills. This information is vital becausecontrolled substances have a high abuse potential. Ifyou are not already using E-FORCE and prescribecontrolled substances I encourage you to request anE-FORCE account.

President’s Message

www.escambiacms.org

March/april 2013VOlUME 43, NO. 2

BULLETINUpcoming

Events

Friday March 22, 2013

Apple Annie’s | 5:30p

Doctors Day Celebration

Wine Around the World

with ECMS

Tuesday April 9, 2013

Topic: Domestic Violence

Speakers: Fred Sulzbach &

Marsha Travis

[2AMA PRA Category 1

CreditTM]

RSVP: 478-0706

[email protected]

Wendy Osban, DO

Founded in 1873

ECMSmar.apr 2013_ECMS Bulletin 3/14/13 2:11 PM

E.C.M.S. BulletinThe Bulletin for and by the members of the EscambiaCounty Medical Society. The Bulletin publishes sixtimes a year: Jan/Feb, Mar/Apr, May/Jun, Jul/Aug,Sept/Oct, Nov/Dec. We will consider for publicationarticles relating to medical science, photos, bookreviews, memorials, medical/legal articles, and practicemanagement

Vision for the Bulletin:• Appeal to the family of medicine in Escambia and SantaRosa County and to the world beyond.• A powerful instrument to attract the induct members toorganized medicine. Views and opinions expressed in the Bulletin are those of theauthors and are not necessarily those of the directors, staff oradvertisers.

Ad placementContact Erica Huffman at 478-0706

Ad rates1/2 page $300 1/4 page $150 1/8 page $100

ContentsPage 3 - New Members &

Membership BenefitsPage 4 - Department of Health,

Bureau of Vital StatisticsPage 5 & 6 - Split-Fee Soup:

A Recipe for DisasterPage 7 & 8 - Keeping Your Patients andYourselves Out of Litigious SituationsPage 9 - When Prescribing Drugs, a

Physician Has a Duty to Warn PatientsPage 10 & 11 - Hospital News

Editors:Brian Kirby, MD

Erica Huffman, Executive Director

2013 ECMS officersPresident - Wendy Osban, DO

President-Elect - Susan Laenger, MDVice President - Christopher Burton, MDSecretary/Treasure - Brian Kirby, MD


Membership 3ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

New MembersHaitham Qader, M.D.Renalus Center for Kidney Care1619 Creighton RoadPensacola, FL 32504(P) 850- 444-4700(F) 850-444-7497

Sara Winchester, M.D.Child Nerology Center of Northwest Florida,P.A.P.O. Box 280Gulf Breeze, Fl 32562(P) 850-932-5035(F) 850-932-1404

Christina Tarantola, MDWilliam B Henghold, MD, P.A.540 Fontaine Dr.Pensacola, FL 32503(P) 850-474-4775850-484-8223

Tamika Ussery-Freeman, MDBaptist Medical Group – PediatricHospitalist1000 W. Moreno St.Pensacola, Fl 32501(P) 850.434-4875(F) 850.469.5067

Douglas Bunting, M.D.Renalus Center for Kidney Care1619 Creighton RoadPensacola, Fl 32504(P) 850-444-4700(F) 850-444-7497

Padmavathi Pendurty, MDBaptist Medical Group-Hospitalist1000 W. Moreno St.Pensacola, Fl 32501(P) 850-469-7406(F) 850-437-8283

Jennifer Driscoll, MDBaptist Medical Group-Primary Care1717 North E St Ste 222Pensacola, fl 32501(P) 850-437-8650(F) 850-437-8659

Surendar Veera, MDBaptist Medical Group Hospitalist1000 W. Moreno St. Pensacola, Fl 32501(P) 850-469-7406(F) 850-437-8283

Tammy Pruse, DOBaptist Medical Group9400 University Parkway Ste 409

Pensacola, Fl 32514(P) 850-208-6160(F) 850-208-6169Nicole Briley, MDBaptist Medical Group-Hospitalist1000 W. Moreno St.Pensacola, Fl 32501(P) 850-469-7406(F) 850-437-8283

James Natalie, MDAndrews PM&R1717 North E St. STe 530Pensacola, Fl 32501(P) 850-437-8670(F) 850-437-8679

Address ChangesElias Banuelos, MDBanuelos Family Medicine6061 Doctors Park RoadMilton, Fl 32570(P) 850-983-8500(F) 850-983-0009* Dr. Banuelos is trying to sell a few tables –call him if you are interested.* Dr. Banuelos is looking for moonlightingopportunities- please call him withopportunities.

ECMS Benefits of Membership 2013The Florida healthcare law Firm: 25% discount on all purchases in the online resource store. Use Coupon Code: ECMS25cE Broker: $5 off Professional Account Use Coupon Code: ECMS13Gulf coast premier promotions: 4 page website built for your office. $1200 ($2000 value) Use Coupon Code: ECMSWEB1310 Dinner Meetings in 2012: Opportunities to receive Free Florida Mandated Courses.representation in legislature: ECMS has members actively participating in the FMA and AMA. Such topics include: Managed care legislation, PRN sovereignImmunity, Mandatory malpractice, tort reform, and grass roots efforts. ECMS gives our physicians’ updates through our newsletters, email, and faxes.Malpractice insurance Discount: The Doctors Company gives ECMS members a 5% discount. In addition, their claim-free program currently allows for thefollowing discounts: 25% claims-free 15= years; 20% claims feree10-14 years; 10% claims-free 5-9 years. 20%Discount on pensacola Opera TicketsDocBookMD: ECMS providers are now listed on the ECMS iphone and Android application.Workers’ compensation insurance: Members can receive up to 24.8% return on insurance premiums with OptaComp.cME: ECMS offers free CMEs to our members at many of our meetings.Directory and Website: ECMS website and Member directory, which includes you office information and picture, as well as allows you to control theinformation and register for ECMS events. We also work with physicians tocreate and manage their own internet site.patient referral: ECMS refers patients to our physicians daily.physician information Service: ECMS has connections in Pensacola. TheSociety is pleased to research, ask, and retrieve information for you or youroffice personnel.Vested Vendor resource Guide: These vendors are financially and personallyinvested in the success of the practice of medicine. They support our CMEevents, dinners, special events and our Bulletin newsletter. Please make sure tocall a supporter of ECMS.The Florida healthcare law Firm: At no charge members of the EscambiaCounty Medical Society may call the hotline 561-306-5699 with questionsregarding specific legal issues.crown plaza: Mention “Medical Society” for a yearly discounted rate on you oryour guest next stay.Transworld Systems: Member discount on professional services. Pleasecontact Lin Engie at 850-725-4408.


Physicians’ Online Tutorial forCompleting Cause of Death on theFlorida Death Record

The Department of Health Bureau of VitalStatistics, in cooperation with the FloridaMedical Association and the FloridaAssociation of Medical Examiners, has anonline tutorial for physicians. This

complimentary tutorial, which is worth one CME credit, takesabout one hour to complete and can be accessed at:http://floridavitalstatisticsonline.com/

The tutorial is constructed for physicians, providing an overviewof the death registration process in Florida and how to go aboutproperly completing the medical information on the death record.It provides sample case histories; an explanation of the physician’s,the medical examiner’s, and the funeral director’s responsibilitiesin getting death records filed; how mortality data is used and whythe death record is so important to families.

Electronic Death Registration System Launchedin Florida

The Bureau of Vital Statistics has implemented electronicregistration for all Florida deaths. The record is filed online, via asecure Internet site, using the Electronic Death RegistrationSystem (EDRS). The user has direct access to the state databasefor entry of death record information. EDRS increases accuracyand timeliness while improving statistics for state and nationalsurveillance systems.

Funeral directors are online users and complete thedemographic/personal information on the decedent. The EDRSrecord is then sent electronically to the physician for certifying themedical information.

The certifying physician who signs a number of death recordsevery month can be an online user and complete the medicalcertification electronically, using EDRS. The physician who signsdeath records occasionally can be an offline user and complete themedical certification via Fax Attestation. The fax is systemgenerated and looks much like the medical portion of the paperdeath record.

There are informational brochures available from the countyvitals statistics office or from the state office. Questions regardingthe online tutorial or electronic registration should be directed tothe Quality Assurance Section at the state office, 904-359-6900,ext. 9020.

4 Practice ManagementESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

Department ofHealth, Bureau of

Vital Statistics


ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

When people ask me what I do, I used to say “I’m atransactional health care attorney. I represent health carepractitioners in their business deals. I don’t do malpractice.”That response does little to wipe the blank stare off myquestioner’s face, and even I have to stifle the urge to yawn.My new and improved response is that “I spend a lot of timeadvising health care practitioners how they can share feeswith people who refer them patients.” Now I get invited toall sorts of cocktail parties !!!

Practitioners split fees with one another for a variety ofreasons; and they very often do not realize that a particulararrangement involves a split-fee arrangement, or that split-feearrangements are often illegal in Florida. The purpose of thisarticle is to provide practitioners with a general overview ofthe concepts underlying the prohibition against split-feearrangements in Florida, in the context of three commonbusiness arrangements.

Source of the Law.Split-fee arrangements become problematic when the split

is such that it constitutes the payment in exchange for thereferral of a patient or health care service. Paying for referralsis professional misconduct and a criminal act in Florida.1

Unfortunately, it is not always easy to recognize that aparticular situation constitutes a payment for referrals. Theactual laws in this regard are vague. Florida’s Board ofMedicine has published approximately twenty-five opinionson split-fee arrangements; but those opinions, althoughinformative, only actually bind the parties who were beforethe Board.

Common Arrangements Involving Split-Fees.Percentage of Collections of the Independent Contractor.

Practices often desire to engage a professional as anindependent contractor (i.e. on a 1099 basis), and to pay thatcontractor a percentage of the collections generated by thatcontractor. The motivation for this type of arrangement isobvious: the practice wants to incent the contractor to workhard, and the contractor wants to be rewarded for all of hishard work. The problem arises from the fact that when thepractice assigns a patient to the contractor, that assignment ofthe patient constitutes a referral. Once you have a referral bythe practice to the contractor, any revenue that flows fromthe contractor to the practice may constitute a payment forthat referral. The decisive analysis is what percentage of thetotal fee for treating the patient is retained by the practice?

The general rule is that the portion of the fee retained bythe practice must be based on the practice’s cost of providing

items and services to the contractor and the patients (s)hetreats, that are necessary for the episodes of care. If and tothe extent that practice retains a fee that does not reflect itscost, the practice may be considered to be taking a fee fromthe contractor in exchange for referring the patient to thecontractor.

There is no bright line test with respect to whatpercentage of a fee the practice can safely retain, but thereare certain factors that should be considered. The overhead ofthe practice is important. If the practice retains a percentageof the fee that far exceeds the practice’s overhead, then thearrangement is susceptible to challenge. In addition, if thecontractor is to provide services on behalf of the practiceboth in the practice’s office and in hospitals and/or clinics,then the percentages ought to vary depending on the locationof service. The practice’s costs associated with care renderedin its office are likely different from the costs associated withcare rendered outside its office, so the percentage of feesretained from the various settings should likewise bedifferent.

Marketing Arrangements.Practices often wish to hire companies to market the

medical practice. The practice and the consultantunderstandably prefer for the consultant to be paid based onresults; that is, that amount by which the practice has grownsince the marketing consultant began work. Since the solepurpose of a marketing arrangement is to generate referrals tothe practice, there is a strong prohibition against a medicalpractice paying a marketing consultant a percentage of thepractice’s revenue in exchange for marketing the practice.

Marketing arrangements are sometimes part of largerpractice management arrangements, but are often stand-alonearrangements with professional consultants. The prohibitionagainst percentage fees for marketing arrangements is sostrong in Florida that I often advise my clients to isolate thosearrangements from all percentage-based arrangements. Iusually suggest that marketing services be specificallyexcluded from practice management and/or professionalservice agreements and dealt with separately. I am muchmore comfortable with a time-based marketing fee, such asan hourly or annual fee, that is owed by the practiceregardless of any increase in patient flow. I recognize that atime-based marketing fee does not create direct incentive forthe marketing consultant to perform but, depending on thenature of the practice and its marketing goals, there can beother tactics available to assure performance.

Split-Fee Soup: A Recipe for Disaster

By: David W. Hirshfeld

Continued on page 6

Medical/Legal 5ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

1See, Florida Statutes §458.331(1)(i), §456.054 and §817.505.


6 Medical/LegalESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

Selling Receivables.Practitioners with a large base of patients whose injuries

have been caused by the negligence of others often havelarge accounts receivable on their books for years. Thereason is that these “personal injury patients” sometimesdo not have insurance, or do not submit their bills to theirinsurer. The theory is that patient’s medical care will bepaid for if and when their negligence lawsuit is resolved,assuming there is enough money from the settlement orverdict to go around to all the health care practitioners andattorneys involved. Practitioners become financiallysqueezed because the underlying negligence lawsuits oftentake years to resolve.

Practitioners with a large mix of personal injurypatients, and other practitioners, sometimes desire to selltheir accounts receivable. The practitioner agrees to accepta fraction of the receivable’s face value in exchange forimmediate and certain payment. This sort of factoringarrangement is fine and safe unless the factor purchasingthe receivables somehow has a hand in referring theunderlying patient to the practice. If a factor brings apatient to a practice, purchases the receivable attributableto that patient at a discount, then collects more than itpays for that receivable; the arrangement may bechallenged as a split-fee arrangement intended tocompensate the factor for the referral.

Split-fee arrangements are very common, and notalways easy to recognize. Through this article I hope todevelop practitioners’ intuitions with respect to prohibitedsplit-fee arrangements in Florida. Practitioners should notethat in addition to issues created by Florida law, Federallaw also prohibits payments intended to induce referrals ofpatients or services that are reimbursed by Federal healthinsurance programs such as Medicare. In my experience,split-fee arrangements that pass muster under Florida lawcan usually be tweaked to fulfill the requirements ofFederal law.

Mr. Hirshfeld has dedicated the majority of his 18 yearlegal career to a strong focus on the healthcare industryand has an exceptional reputation as a corporate attorney.He has structured, negotiated and documented manybusiness transactions which include a variety of issuesinvolving compliance, control and operational issues; andthe impact of state and Federal legislation including anti-self-referral (e.g. "Stark"), anti-kickback and corporatepractice of medicine laws; professional misconduct;managed care contracting guidelines; Medicare; HIPAAand tax laws. He can be reached [email protected] or by calling toll-freeat (888) 455-7702

Continued from page 5Split-Fee Soup: A Recipe for Disaster


ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTYMedical/Legal 7

ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

Many claims are brought against our physicians not because of poormedical care but because the physician's actions and documentation donot support an appropriate standard of care when there is an adverseoutcome. Any physician's comments, actions or inaction before andafter an unexpected or adverse outcome may prevent initiation of aclaim, trigger a claim, mitigate damages or negatively impact thedefensibility of a medical malpractice case. This article will focus onrisk management practices that should be a part of your practice.

Excellent informed consent, documentation and disclosure willprotect both you and the patient. Making the patient a true part of theteam will increase compliance and build more realistic expectations.Careful handling of communication, informed consent and disclosurecan also build a higher level of confidence in the doctor-patientrelationship.

A Vanderbilt University study conducted by Gerald Hickson, MDand James Pichert, PhD showed that about 8 percent of physicians,depending on specialty, produce 40 percent of all risk managementcomplaints and cause 80 percent of the money spent on claims. Thephysicians most likely to be sued were the same physicians whogenerated the most complaints. Those physicians were also not ratedhigh in competency. Another study of OB claims surveyed plaintiffs toidentify the initial motivating reasons patients sued. Those surveyedinitiated claims most often for the following reasons in order offrequency:

1. Plaintiff had been advised to call an attorney by an "influentialother"

2. Plaintiff needed money 3. Plaintiff believed there was a cover-up 4. Plaintiff believed the child would have no future 5. Plaintiff needed information (looking for answers) 6. Plaintiff wanted revenge.[1]

Wallace Rubin, MD of Metairie, Louisiana wrote a letter to MedicalEconomics commenting on an article written by Lee J. Johnson, JD"When another doctor messes up." Dr. Rubin commented thatpractically every malpractice suit he is aware of resulted from onephysician stating that another had done something incorrectly.[2]

Assess the Issue Carefully It should not come as a surprise that thecomments of a subsequent treating physician actually triggered manysuits. Honesty is always essential, but criticizing another doctor’s careis not a good idea. You were not there, you may be wrong, and youhave just recommended that someone needs to be blamed; perhapswithout knowing all the facts? You may just have become an expertwitness.

Assigning blame to another provider is not beneficial to the patientin most situations. When blame is placed, anger and distrust areintensified. Focus your attention on future treatment options. Even ifsuspicious of former treatment, tell the patient if questioned that youcannot comment on another doctor’s decisions without reviewing themedical record and their rationale. Then follow through. Speculation isnot appropriate without the facts to back up your suspicions.[3]

Address a Real Problem Jury Verdict Research has shown that eventhough jurors tend to be sympathetic towards the plaintiff, they holdthe physician in the highest regard of any party to a suit. But some

perceptions can be damaging. Jurors react negatively when they believethat the physician failed to see what was in plain sight, was self serving,ignored the obvious, did not follow-up or put his/her self interest overthe patient’s.[4] Additionally, there must be no perception that thephysician tried to cover-up an event. Inappropriate actions negativelyimpact perceptions and may even lead the parties toward litigation.One way we can help our patients and ourselves is by improving theactions we take before and after clinical events and to make thesechanges a permanent part of medical practice.

Informed consent is the proactive form of disclosure. The more thepatient knows the better able they can make logical decisions, acceptresponsibility for an unexpected outcome and comply with yourrecommendations. The physician should document in the medicalrecord what activity occurred, including the content that wasdiscussed. Encourage your patients to ask questions. Both you and yourpatients may be upset when results do not equal expectations, sorelate information that leads to realistic expectations. Don’t stop at therisks alone. Inform them of the inconveniences too. Documentinformed refusal if the patient chooses to refuse a recommendation.

CASE EXAMPLE 1A young man underwent abdominal surgery. He complained of

intermittent abdominal pain well after the procedure. One weekendhe presented to the local Emergency Department where an abdominalfilm revealed a foreign object, likely a surgical instrument. Theemergency physician informed the surgeon of the findings, but did notinform the patient. The surgeon examined the patient and told himthey didn’t know what was wrong and would need to performexploratory surgery. During surgery they found a small clamp, butdidn’t tell the patient or document the removal. At a later date, thepatient became aware of the radiology report and was very angry. Hefelt betrayed by the provider and brought suit. The physician wascharged with separate counts of malpractice, battery and civil fraud. Alarge settlement payment was made because the physician’s failure todisclose the truth and the lack of documentation were judgedindefensible. (Criminal charges such as fraud are not usually coveredunder a medical malpractice policy.)

Sometimes, when a provider conceals an error, the statute oflimitations for bringing a malpractice claim will not begin to run untilthe concealment is discovered. Additionally, in some states, courts mayallow punitive damages because covering up a mistake is consideredparticularly dishonest.

Don’t be afraid to apologize if something goes wrong. Often therewas no error, but an unexpected adverse outcome. You should disclosethat without admitting liability. When there was a definite error, tellthe truth in a factual manner. Apologize specifically, sincerely, timelyand in a proper setting. Predetermine, if possible, who will be presentand consider your demeanor as you plan your conversation.

It is important that you first acknowledge the harm the patient hassuffered. Admitting unexpected adverse outcomes, conveying badnews, accepting a patient’s anger or hurt is difficult. If the outcomewas an unpleasant but known risk of a treatment or procedure, yourapology should reflect the informed consent process. “I am sorry to tellyou that your father has developed a blood clot in his leg, and we aretreating him for this.”

Apologize precisely, especially if there is an obvious error. “I am

Keeping Your Patients and Yourselves Out ofLitigious Situations

Continued on page 8


8 Medical/Legal ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

sorry to tell you that you have a retained sponge, and we will have totake you back to surgery to remove it.” Then document the disclosure.In a case where the liability is clear, instruments left behind aftersurgery or wrong site surgery; you probably have nothing to lose byapologizing and may even have something to gain. We also encourageyou to call MAG Mutual to report a serious incident.

When an error occurs, quickly initiate any needed treatment tocorrect the condition. Following treatment, there are some key pointsto remember when disclosing adverse events. • Be honest and don’t be afraid to say you don’t know how or why

something happened • Don’t guess • Don’t draw conclusions about an event when you don’t know • Do not attempt to cover up an error by omitting known details • Don’t blame someone else • Don’t blame the nurses for not calling you sooner, the patient for not

speaking up, the resident for not beginning the correct treatment • Do not criticize other providers with your words or expressions

CASE EXAMPLE 2 A patient underwent a biopsy of a skin lesion. No one from the

office emphasized the importance of follow-up or called her with thepositive results. When she returned to the office six months later, shewas diagnosed with metastatic disease. The physician told her, “I onlywish you had come to me sooner.” This was an attempt to transferblame onto the patient. Deflecting blame does not protect thephysician and can cause further emotional stress for the patient.

CASE EXAMPLE 3A radiologist failed to appreciate a secondary finding on a chest X-

ray. When asked to review the film later, he acknowledged his obviouserror and said, “The patient probably would have died anyway.” Self-serving documentation and comments like this have the ability toinflame patients and juries. In a separate incident the attendingphysician told the family of a deceased patient that the death wouldnot have occurred if he’d been there, the residents were at fault.

CASE EXAMPLE 4 A 61-year-old male was followed long term by his primary care

provider for episodic illness and complaints. The patient hadprogressive urinary complaints and agreed to have a PSA level checked.Results were reported as elevated, but were filed (systems error)before the physician saw them. The patient was seen five times overthe next 18 months, and on the last visit the physician noted theelevated PSA. The patient was referred immediately, but died withinweeks. His widow sued, but the claim was not reported to hisinsurance company nor was any response made to the court. Thiscaused the physicians’ insurance coverage to be at risk and severepenalties to be applied by the court. It is very important to notifyMAG Mutual immediately if you receive a summons or notice ofintent to file a lawsuit.

Once a claim has been made, the medical record is your mostimportant defensive tool.

Document objectively even if the patient or family reacts withanger. Simply describe what you told them and the details of anyfollow-up plan.

The do’s:• Document so that another provider can take over care and know

what has been done • Include equipment and medication identifiers as appropriate

• Only add an addendum that is needed for continuing patient care • Date and time addendum at the time they are made and specify the

time of the action • Use wording that is unemotional and precise • Record only what you know. Do not speculate • Use quotation marks when reporting information given by the patient

or family member • Write legibly and sign all dictation and reports • Document use of results and reports to the patient • If uncertain, state your plan to follow-up or refer. Don’t document a

question and leave it hanging. (May be..........., withoutrecommending further workup)

The don’ts:• Don’t document speculation or guesses • Never alter a record. Don’t add, subtract or try to correct • Do not create an addendum merely because you are trying to defendor justify your care • Don’t point fingers at others including the patient./ I would havetreated this differently./ Who did this to you?/ We could have donesomething if you had come to us sooner. (the subsequent treatingphysician is often a major initiating factor in claims) • Avoid vague language. Probably benign means you need to documentthe need for further study/Rx to be sure • Don’t tell a patient I called my attorney/ called and talked tomalpractice carrier/ discussed at Quality Assurance meeting • Don’t make judgmental statements against the patient such aspatient is difficult/ beyond help/ patient is a malingerer

Do make necessary changes to your processes to prevent the samemistakes from happening again

ConclusionInformed consent, documentation and disclosure will protect you

and the patient. Take time to compose your thoughts and outline whatyou need to convey so you can do it simply, without blaming andwithout claiming negligence. Plan your conversation and prepare forthe encounter. Document the encounter. Remember, making thepatient a true part of the team will increase compliance and will buildmore realistic expectations. For you and your patients, healing is aidedby the caring relationship you nurture.

[1] Patient Complaints and Malpractice Risk Vol. 287 No. 22, June 12,2002 Gerald B. Hickson, MD; Charles F. Federspiel, PhD; James W.Pichert, PhD; Cynthia S. Miller, MSSW; Jean Gauld-Jaeger, MS;Preston Bost, PhD JAMA. [2] Malpractice Consult, Medical Economics December 9, 2002 Lee J.Johnson JD When Another Doctor Messes Up [3] (Rick Fuentes PhD, R&D Strategic Solutions, from a presentationto the defense Attorney Seminar in Atlanta, Georgia on September 18,2002.)

The risk management advice presented in this Site is intended asgeneral information of interest to physicians and other healthcareprofessionals. The recommendations and advice published on this Sitedo not reflect or establish a standard of care and do not establish rulesfor the practice of medicine. The publication of this information is notintended as an offer to insure such conditions or exposures, or toindicate that MAG Mutual Insurance Company will underwrite suchrisks for the reader. Our liability is limited to the specific written termsand conditions of actual insurance policies issued.

Continued from page 7


Medical/Legal 9ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

Prescribing physicians have a primary duty to warnpatientsabout the risks and complications of prescribed medications.While legal arguments have been made thatthe drugmanufacturer should be responsible for this duty to warn,courts continue to hold physicians accountable.

In a recent lawsuit, a patient claimed a prescribedmedication caused lupus-like symptoms and that themanufacturing company, along with three physicians,failed toadequately warn of the drug’s risks and infactoveremphasized its benefits. Two physician defendantssettled with the patient, while the third physicianwasdismissed. The trial resulted in a $4.7 million jury verdictagainst the manufacturer.

The company appealed, claiming it had no duty todirectlywarn the patient after providing the patient’sprescribing physician with adequate warning. Based on thelegal doctrine of “learned intermediary,” the court ruled infavor of the manufacturer. The doctrine states that aprescribing physician acts as a "learned intermediary"between manufacturer and patient: the manufacturer has aduty to inform the physician about drug uses and hazards,and in turn the physician has a duty to relay to each patientthe dangers of using the prescribed medication. As such, theprescribing physician has the responsibility or “duty to warn”a patient of a prescription drug’s side effects.

Review these tips to ensure you fulfill your duty to warn:• Stay abreast of FDA prescription drug warnings and recalls.• Use PDR Network as a reference for FDA-approved druglabeling and as a source for drug safety information.• Be aware of prescription drug manufacturer productdisclosures and warnings.• Determine if additional information about the drug isavailable, including studies suggesting dangers that the FDAhas yet to act on.

• Require that patients provide a list of all prescriptionandover-the-counter drugs being taken.• Advise patients of other available medications andthemedical rationale for the one being prescribed.• Counsel patients about the difference between brand-nameand generic drugs.• Inform patients of potential drug-food and drug-druginteractions.• Document all disclosures and warnings made to patients.• Instruct patients to read drug labels.• Provide patients with written, simplified dosinginstructions.• Obtain written informed consent when prescribing for off-label use.• Date and archive product manufacturer disclosures andwarnings.• Seek legal or risk management guidance when uncertaintyarises.

Contributed by The Doctors Company. For more patientsafety articles and practice tips,visitwww.thedoctors.com/patientsafety.

When Prescribing Drugs, a Physician Has a Duty to Warn Patients


Hospital News - Sacred Heart Hospital

Patient-Tower Expansion is ProgressingConstruction of the five-floor addition to Sacred

Heart Hospital continues to move along at a steadypace. Two million pounds of steel have been utilizedfor the project that will add 112 new private hospitalrooms, 40 of which will be for critically ill patients.Greenhut Construction crews have been working toinstall flooring, piping and duct-work and electricalconduit. Interior and exterior walls are beginning totake shape on the new floors. The connector walkwaybetween the new tower and the main hospital will bethe next phase of the project.

When completed, the project will add five floors ontop of the existing three floors of the hospital's Heartand Vascular building. Every aspect of the planning isfocused on enhancing our patients' experience andimproving the quality of care. The new patient towerwill have the latest medical technology and digitalmedical records systems, as well as more-comfortableprivate rooms. The project also provides economicbenefits to the community. The expansion has createdhundreds of jobs in construction and will mean morehealthcare jobs for Pensacola when the doors open topatients in July 2014. For updates and a live Web Camof the construction, visitwww.sacredheartexpansion.com.

10 In The CommunityESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY


In The Community 11ESCAMBIA COUNTY MEDICAL SOCIETY IN CONJUNCTION WITH SANTA ROSA COUNTY

Baptist Cardiology Team One of the Nation’s First toImplant Newest Device for Cardiac Pacing. Only seven dayssince the Food and Drug Administration granted final approval for anew type of Biotronik cardiac defibrillator, Baptist Hospital, withthe support of their team of 28 cardiovascular specialists, CardiologyConsultants, became one of the very first heart centers in the nationand the only heart hospital in the region to offer the BiotronikLumax 740 DX System device, and related improved outcomes, forpatients with heart rhythm care needs on the Gulf Coast. Theprocedure was performed by Ian Weisberg, M.D., board certifiedelectrophysiologist of the Baptist Heart Rhythm Center.

Baptist Credit Rating Outlook Positive: One of only twohealth care systems in Florida with positive rating.Moody’s Investor Services has revised the outlook on Baptist HealthCare’s (BHC) credit rating from stable to positive. The credit ratingagency carefully evaluated the organization’s structure, strategy,market positioning, leadership team, physician integration andfinances. In its report, Moody’s affirmed the organization’s Baa1bond rating and changed the outlook to positive, citing key strengthsthat included the organization’s proactive management, customer-focused culture, increased market share and the completion ofsubstantial facility improvements. As a locally-owned not-for-profitorganization, 100 percent of BHC’s jobs and investments benefit theregion. A strong credit rating is vital for BHC to remain independentand to ensure that key decisions that impact the community’s healthcare services continue to be made locally. Confidence from therating agency is a solid indicator of BHC’s strategy, leadership,physician engagement, financial performance and positive future.

Gulf Breeze Hospital Named One of theNation’s 100 Top Hospitals by TruvenHealth Analytics. In February 2013, Gulf BreezeHospital was named one of the nation’s 100 TopHospitals® by Truven Health Analytics, formerlythe health care business of Thomson Reuters.Truven Health Analytics is a leading provider ofinformation and solutions to improve the cost andquality of healthcare. The Truven Health 100 TopHospitals® study evaluates performance in 10areas: mortality; medical complications; patientsafety; average patients stay; expenses; profitability;patient satisfaction; adherence to clinical standardsof care; post-discharge mortality; and readmissionrates for acute myocardial infarction (heart attack),heart failure, and pneumonia.

Baptist CEO, Mark Faulkner, NamedBusiness Leader of the Year by PensacolaArea Chamber of Commerce. The GreaterPensacola Area Chamber of Commerce announcedthat Baptist Health Care President and CEO, Mark

Faulkner, achieved the Pensacola Area Commitment to Excellence orPACE award for Business Leader of the Year. This achievementrecognizes that leadership in our organization is dedicated to improvingquality of life for everyone who lives here.

Lakeview Receives Three-Year AccreditationLakeview Center Inc. was awarded an unconditional three-yearaccreditation by the leading accreditation agency for rehabilitation andmental health facilities. In its 72 pages of written findings, theCommission on Accreditation of Rehabilitation Facilities (CARF)International praised Lakeview Center for compassionate, person-centered services, commitment to continuous quality improvementand strong strategic planning. The accreditation, which extendsthrough Jan. 31, 2016, is based on an intensive, three-day surveythat thoroughly reviewed Lakeview’s behavioral health, childprotective, opiate treatment and vocational services.

Hospital News - Baptist Health Care


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March/April ECMS Bulletin 2013

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