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RISK MANAGEMENT FOR MEDICAL DOCTORS GENERAL OBSERVATIONS
Kenneth Glasner, Q.C.
Who is at “risk” and why
All individuals, organizations, professional colleges and political parties are constantly at risk for loss of assets, prestige or even their political existence.
Individuals are at risk for infection, poisoning and accidental injury. Organizations are at risk for litigation and financial liability for the actions of their board members and management. Professional colleges and their staff are at risk for government intervention and alienation of their professional group or the public. Finally, political parties are at risk for voter disapproval as well as criminal or foolish acts of individual members.
We can take precautions to reduce the statistical chance of loss, we can actively take risks and increase our rewards (perhaps temporarily), or we can carry on in ignorance or apathy, wait for something to happen, and hope that we can bail out.
One trend that is apparent everywhere is increased choice. That is, the trend from either/or to multiple options. The most obvious example is the variety of cars but the most meaningful to us is the variety of choice of medical doctors. Industry deals with increased choice by marketing to selective segments of a diverse market. In short, it shouldn’t matter to you if there are too many medical doctors or there are medical doctors who are not busy enough. What matters is that you have established a position in the market that you are comfortable with and you have more demand for your services than you can satisfy.
It is possible to combine a program of risk and quality management with a marketing approach that will make your practice stand out as a leader in health care. This approach to practice security will never appeal to the careless or disinterested medical doctor.
Development of a risk management program is essentially the establishment of systems and standards that will prove both your compliance with laws and concern for your patients’ fears and perceived needs. A medical doctor establishes a risk and quality management program to prevent loss (financial or reputation), and to market the practice as a leader in health care.
Risk managers consider two factors when assessing a risk. They are the cost if things go wrong and the probability of occurrence. If the cost is high, the probability must be minimized. If the cost is low, the probability may be allowed to increase according to the doctor’s personal assessment of “acceptable risk”.
Risks are controlled by:
Eliminating the risk;
Eliminating activities that produce undue risk;
Insuring for uncontrollable risk;
The establishment of standards, controls and regulations.
Fiduciary Nature of the Relationship
Madam Justice McLachlin discussed the nature of the relationship between a physician and their patient in Norberg v. Wynrib (1992), 92 D.L.R. (4th) 449 (S.C.C.). Madam Justice McLachlin stated:
The relationship of the physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician’s failure to fulfill his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence…. But perhaps the most fundamental characteristic of the doctor-patient relationship is its fiduciary nature….
…. I think it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship – trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests. Recognizing the fiduciary nature of the doctor-patient relationship provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires.
Do you know your patient’s concerns in order of importance? The term “stakeholder” is currently trendy yet the concept of answering a need is a cornerstone of marketing. We often think we know our patients’ needs and concerns but some of us are only half right. Fear of pain seems to have lost place to fear of infection and a new concern, lack of communication has increased in importance. Of course, every patient may rate these concerns differently. Doctors, voluntary organizations and even licensing bodies would do well to keep in touch with the concerns of their “stakeholders”. This is one area where risk and quality management truly blend.
Informed consent is a prerequisite to providing care. A basis tenent of our system of health-care delivery is the principle of informed consent. Such consent is required prior to the touching of any person. Failure to obtain consent may constitute a civil tort of assault or battery. In asking for consent, one is acknowledging the client’s right to self-determination.
Such consent is not merely a piece of paper, but is in fact a process. Consent may take on more than one form. It may for example be implicit or explicit.
If a person enters an emergency room with an open wound, one can say that they have given implicit consent to have the wound accessed, cleaned, and bandaged. If upon assessment the health care-provider determines that suturing or other invasive treatment is required, then the health care-giver may wish to seek explicit informed consent, whether that be verbal or preferably written, prior to the commencement of the treatment.
Many health care-facilities specify the use of particular forms to document written consent.
The definition of informed consent has been discussed in a number of court decisions, including Reibl v. Hughes in the Supreme Court of Canada. The Supreme Court held in that decision that:
“a reasonable man in these circumstances might not have consented and probably would not have consented to have surgery given the inherent risk and the consequences of not having it done not being so severe”.
The level of disclosure must therefore be tailored to individual patient’s needs and circumstances. The medical doctor must consider such factors as the clients level of education, cultural or language barriers, or any other pertinent characteristic of the individual in which consent to the procedure is being discussed. A prudent doctor may also require that an interpreter or a family member be present to assist in explaining the process.
It must also be remembered that the consent must be genuine and voluntary. The consent may be invalid if it is obtained through threats or while the patient cannot voluntarily give such consent (for example: under the influence of drugs or alcohol). ie: during a Caesarean section while the patient is under the influence of drugs, she instructs the attending physician to “tie my tubes”.
It must also be remembered that consent is not a defence to an illegal procedure.
Medical Doctor’s Concerns
Loss of assets through personal liability, physical disability or practice interruption is a concern of the medical doctor. Here, the more traditional forms of protections against risk are used. That is, proper insurance coverage for yourself, your staff, and your premises. Remember that periodic review of insurance coverage is an integral part of risk management and standards can be written to remind you of this duty.
Fear of litigation rests with all of us. At the least it is a monstrous nuisance and at the worst it can destroy a medical doctor’s assets. Many of us will be named in an action some time in our professional lives as it reflects a strong societal trend. What matters is that you can defend yourself. If your risk management program is strong enough, it will have repaid its costs many times. If your service component is strong enough that patients judge your practice to be at or above their expectation then your practice will build on word-of-mouth referrals.
How many times did the medical doctor “duck” the patient rather than meet to discuss or even negotiate the perceived unsatisfactory product or service?
The purpose of your risk and quality management program should be:
To make the operation of your practice comply with the laws that affect it;
To establish systems that reduce your risk of complaints and litigation;
To ensure that service is at or beyond a reasonable patient’s expectations.
What are “standards of practice” and where do they come from? Actually, from a large number of governmental bodies and organizations that have a vested interest in maintaining the safety of their constituents. They do this by enacting regulations, by-laws or even formal laws that affect medical practice. There is a wide range of levels of authority and a wide range of requirements for compliance with the ever-growing numbers of regulations and guidelines that affect your practice.
Clinical and Practice Standards
Clinical standardspertain to the medical doctor’s technical and diagnostic abilities, the medical product or service itself and the wide variety of possible outcomes. The professional colleges and university faculties are the prime repositories for the scientific and technical base of standards of clinical practice.
Quality Assurance Program
Two aspects of risk management should be of concern to medical doctors: Both the cost of failure to comply with standards and guidelines and the probability of assessment have increased. This means that the medical doctor must reset his/her comfort level or face increased risk of loss of assets. This program involves:
Development of practice guidelines/standards of clinical care;
Continuing medical education;
Medical doctor evaluation;
Medical doctor enhancement;
Remediation of behaviour or remarks of a sexual nature by a member towards a patient.
With the exception of standards that are required to comply with the law, all standards of a practice are designed and established by the medical doctor and his/her staff. This interactive process will lead to meaningful standards that the staff will strive to maintain.
Standard development begins with a problem or potential problem.
The medical doctor is informed immediately by staff if there is a concern/complaint expressed by a patient;
Staff members don’t get drawn into the situation by a crafty patient;
They deal with the concern/complaint immediately.
What are some standards that might facilitate risk management in such a situation?
Staff must know enough to tell the medical doctor if there are any potential problems. If the receptionist has dealt with a difficult person on the telephone prior to the first visit, the medical doctor must know this. If a patient grumbles on the way out of the office after treatment, the medical doctor needs to know this as well; and
The staff must know when a conversation is getting sticky and know enough to call in the medical doctor.
The Need for Risk Management
The need for Risk Management is in great part, as a direct result of the increase in the number of malpractice claims against health care professionals.
Risk Management includes reviewing accidents or incidents to prevent their recurrence.
Reviewing existing systems including:
Office policies and procedures
Equipment and premisesProfessional procedures
Educating staff about practice and work habits
Reviewing patient complaints and maintain personal involvement (see Appendix “A”)
Establishing appropriate practice management procedures
Common Reasons for Litigation:
Failure to diagnose and inform
Failure to maintain standards of practice
Failure to personally address legitimate patient problems
Failure to maintain adequate records
– poor procedures and staff direction
– faulty equipment and patient injury
– privacy violations
Providing patient (insurer) with false or misleading statement
Provision of treatment beyond expertise
Duty to attend (failure to attend by a physician during a delivery notwithstanding calls by the attending nurse)
Risk Managementmay require a critical, introspective review of all office procedures.
Murphy’s Law: If anything can go wrong, it will.
The law of maximum bad luck: If any two things can go wrong, the worst possible thing will happen.
It may take a pessimist to develop a safe office protocol and policy.
It still requires an optimist to commence patient care!
S.O.D.’s law – Murphy was an optimist.
How to minimize risk:
Maintain clear and complete notes and records (see Appendix “B”).
Insure that records are constantly updated (i.e. medical histories).
Insure a full diagnosis has been developed (i.e. avoid hurried actions for impatient patients).
Insure patient is made fully aware of treatment scope, alternatives and risks (i.e. informed consent).
Deal personally with patient problems and complaints (it is easy to sue someone if you are angry!).
Develop a formal office policy manual that deals with likely problems and allows your staff to properly handle patient problems.
Be available to your patients. Often a simple telephone presence with a solution or acknowledgment is sufficient (see Appendix “C”).
Develop a formal policy to protect patient privacy (i.e. do computers face away from public areas, what is on the screen for the patient to see …).
Insure the procedures you perform are those with which you are comfortable.
Periodically audit claim forms and billings.
Maintain records of qualification as part of employee records.
Employment standards, workplace safety issues.
Provide staff with clear concise direction.
A small dash of paranoia.
Negligence in Professional Practice
When health professionals get “sued” it is usually for negligence. Generally this means that they:
Have failed to live up to a reasonable standard of care;
Have produced injury; and
The patient wants to be compensated.
The onus to prove negligence rests with the patient.
Certain factors appear to be common to patients’ decisions to proceed with what will be an expensive legal undertaking.
Patients who have actually been injured or perceive themselves to have been injured either physically, psychologically, or financially.
Patients who feel that the treatment performed was not actually consented to or not fully informed of choices or risks.
Patients who have been involved in some sort of breakdown in the medical doctor-patient relationship.
Where misunderstandings often occur is in the fact that a medical doctor is trained to be primarily concerned with the patient’s needswhereas the lawyer is trained to be concerned with the patient’s rights. There are many instances where perceptions lead to great differences between these two.
To be negligent, a medical doctor must fail to meet average, reasonable, competent standards of practice under the circumstances at the time and this in turn, must produce reasonably foreseeable injury to the patient. The test is set out more precisely in the various court decisions.
Clearly there is much room for interpretation in this definition. This is called the legal process. It takes time and that takes money. Risk management is designed to alert the medical doctor to take steps to prevent ever getting into such a situation.
Difficult patients need to be dealt with as soon as possible. The time to negotiate is before you receive your Statement of Claim. In fact, there is a hierarchy of dissatisfaction and if you are not aware of the escalation of the problem it may be too late to deal with it. Once you receive the Statement of Claim your actions to resolve the problem are clearly defined and any opportunity to negotiate directly is gone.
Why is Risk Management important?
Direct cost and rise of higher insurance premium.
Direct cost of deductibles.
Inconvenience and lost time.
Possibility of formal complaint.
Possible loss of registration.
Negative publicity and long term practice growth.
Protects the patient and improves the standard of care.
Medical Records Management
If the following three principals are shown to hold, namely:
Records accurate and complete;
Records produced at or about the same time as treatment;
Record taking is unfailingly routine.
then the Courts have accepted the records as a factual accounting of the events described.
In Ares v. Venner, a decision of the Supreme Court of Canada in April 28, 1970. The head note of the case described in 14 D.L.R. (3d) 4 states:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should in no way preclude a party wishing to challenge the accuracy of the records or entries from doing so. Thus, where the nurses whose notes are offered in evidence are present in Court, the defendant medical practitioner who wishes to challenge the accuracy of their notes is free to call them as witnesses.
Rules for records
Use ink only, never pencil.
Do not use white-out, no matter how messy things get.
The person who makes the entry must be identified.
Date each entry, regardless of how trivial. Also enter the exact time.
Do not skip lines or leave spaces.
Don’t use short forms or initials without identifying them so that others will know what they mean.
Note in chart any missed appointments, consents completed, release of information forms.
Don’t alter the pre-operative chart.
Never write anything in a chart that you would not be prepared to have the patient read, explain to a court or see published in a newspaper (even ten years from now). You are somewhat protected from libel/slander in your charts by “Qualified privilege” but clearly insulting comments may be subjected to legal challenge.
Obviously, if a case is under review the records must be maintained.
The medical doctor is responsible for the physical security of the records. This means protection from environmental damage such as mildew, water and fire.
When it comes time to destroy health records, the medical doctor is responsible to make sure that confidential information does not end up in public hands.
Contrary to popular belief, the Employment Standards Act, R.S. 1996, c. 113, sets out a minimum requirement with respect to reasonable notice to be given to an employee where there is no written Employment Agreement.
The Employment Standards Actalso sets out the requirements for the payment of overtime to employees who are not excluded from Part 4 of the Act.
Under section 63, Part 8 of the Act, an employee is entitled, after three consecutive months of employment, to an amount equal to one week’s wages as compensation for the length of service. Employers liability increases where after 12 consecutive months of employment, the employee is entitled to an amount equal to two weeks wages.
Further, after three consecutive years of employment, an employee is entitled to three weeks wages plus one additional weeks wages for each additional year of employment to a maximum of eight weeks wages.
It is important that a medical doctor does not construe that this is a limit of his or her obligation to the employee where the employee has been terminated for reasons other than cause.
In the case of an indefinite hiring (where there is no written Agreement that the person is being employed for a fixed term) there is an implied term that the employee is entitled to reasonable notice of termination. The only exception to this rule is where the employee’s behaviour has given the employee or the employer just cause for terminating the Contract, in which case the employee may be dismissed summarily without notice.
Before proceeding on terminating an employee, the medical doctor should make himself or herself aware of law as it relates to termination and to govern their actions prior to any termination as opposed to seeking legal advice, after the event – which generally is too late.
There are many decisions within our Courts dealing with the test as to what factors determine the length of notice. This length of notice applies to your staff and to your associates should they be employees of yours.
I can do no better than to cite the decision of Bardal v. Globe and Mail Ltd.,  24 D.L.R. 140 (Ont.H.C.), McRuer, C.J.H.C. said at p. 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
It is suggested that as a prudent employer you should not only consider having reduced to writing any agreement with Associates but also any agreement with respect to support staff.
One should ensure that the agreement not only follows the law in the province of British Columbia, but also deals with any particular matter which is governed by the rules of the College. Only when those factors are considered and applied will the medical doctor reduce (not eliminate) the possibility of any problems occurring in the future.
You are, after all not only a professional in the health care field, but a business person governing the economic situation of one or more persons who work with you.
The behaviour of employers has now become the subject matter of wrongful dismissal suits. Where an employer’s behaviour to his employee is callous and shows insensitive treatment in the dismissal, the Courts can properly compensate the employee by adding to the reasonable notice period. See Jack Wallace v. United Grain Growers Limited, S.C.C., File No. 24986, October 30, 1997.
There are other employment concerns particularly in dealing with overtime for staff pursuant to the requirements under the Employment Standards Act.
Conflict arises in the medical profession from a number of areas. Those areas include:
Conflict between physician and patient;
Conflict between physician and physician;
Conflict between physician and staff;
Conflict between physician and other disciplines;
Conflict between physician and insurance carriers.
One of the greatest sources of conflict arises between the patient and their physician. Although I don’t have the statistics, I would imagine that the greatest source of complaints against a physician stems from a complaint laid to the College by a patient or former patient.
Complaints through the disciplinary process usually involves a long and protracted procedure coupled with significant legal and other costs to the physician and others, resulting generally in a lose/lose or win/lose situation.
Generally the central figure in those complaints – namely the patient, becomes the forgotten party. I say the forgotten party because as to the best of my knowledge there is no mediation system employed in this province in your profession. The complainant simply becomes a witness in a proceeding, rather than focussing on the complaint. In many cases, the complaint centres around inadequate communication between the patient and the doctor. In some cases promises may have been made or inferred to the patient relating to the outcome of the case. Those expectations may never be met, with the effect that the complainant becomes frustrated with the process, the regulatory body, and the profession. This is particularly true when the process takes months or years to reach a conclusion.
In certain cases the complainant’s motivation in laying the complaint may be summarized as follows:
To elicit an apology;
To elicit an acknowledgement of improper or inadequate medical care;
The desire of punishment of the doctor;
A desire to avoid payment of an account;
As a way to discover evidence for a forthcoming malpractice suit.
The College of Physicians and Surgeons of Ontario (C.P.S.O.) has in recent years instituted a mediation process to deal with various matters including persons who are dissatisfied with the services provided by a member of the College.
As Lisa Feld states from her book, “Mediating Professional Misconduct Complaints“:
Ontario appears to the be only jurisdiction in North America where Neutral Complaint/Mediation is being used to resolve complaints against members of health professions in the context of professional regulation and discipline.
I only mention this matter because mediation is a method by which members of the medical community can reduce certain risks by encouraging the use of a mediation system.
As Ms.Feld states on page 89 of her book:
The first step is to recognize that, in certain cases, an alternative to the formal complaints/discipline process could be a superior mechanism for resolving a complaint while meeting the agencies statutory obligation to protect the public interest. One cannot overemphasize the importance of “political will” within the agency.
Unfortunately, in today’s society the issue is not if you will be confronted with a problem by one of the stakeholders; whether it be a patient, an employee, an associate, another medical doctor, or the College, but when and how often you will be confronted with a problem over the length of your practice. As in my profession, one must practice defensively.
All too often, the exigencies of our practice preclude us from making notes of the telephone conversation with the client/patient; lawyer/medical doctor.
Failure to adopt a practice implementing good risk management techniques only lead to interaction between our professions where the writer and his colleagues will see one of you – not as a solicitor, but as a barrister.
This material deals with complex matters and may not apply to particular facts and circumstances. As well, the material and references contained therein reflect laws and practices which are subject to change. This change may not only reflect the time change but a jurisdiction change. For these reasons, the material should not be relied upon as a substitute for specialized professional advice in connection with a particular matter.
Although the material has been carefully prepared, neither the British Columbia College of Family Physicians nor any of the persons involved in the preparation accept any legal responsibility for its contents or for any consequences arising from its use.
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Kenneth J. Glasner, Q.C.
Tel: (604) 683-4181 / Fax: (604) 683-0226
Suite 1414, Nelson Square, Box 12156, 808 Nelson Street
Vancouver, British Columbia, V6Z 2H2 Canada