Medical Malpractice

Data Bank Basics

By | Blog, Medical Malpractice, Uncategorized | 12 Comments

Whether you realize it or not, you as a health care organization representative or a medical practitioner are directly affected by what is called the “Data Bank.” As part of the U.S. Department of Health and Human Services, the Data Bank is a confidential information clearinghouse created by Congress in order to “improve health care quality, protect the public and reduce health care fraud and abuse in the U.S.” Established in 1986, the Data Bank is made up of the National Practitioner Data Bank (NPDB) and the Healthcare Integrity and Protection Data Bank (HIPDB) and is responsible for collecting and distributing reports containing the negative actions of a physician.

Before we go any farther, we must say that there’s no need to panic. If you’re just hearing about this now, let us assure you that the information is not public and can only be obtained by authorized personnel such as government officials, health care facilities, hospitals, attorneys and select other approved agencies. The records may be released to public viewers, but it will not contain the physician’s identity or specific information.

The Data Bank is primarily used to inform health care organizations such as hospitals, health plans and regulatory entities to conduct an in-depth review of a practitioner’s past actions before entering into partnership with, referring or recommending the physician. The information available in each report includes a variety of information regarding a care-provider’s history including medical malpractice payments, adverse licensure actions, negative peer reviews, civil judgments, criminal convictions, license/certification suspensions and other actions that are deemed negative. In keeping the records, the Data Bank relies on the reporting of a number of entities involved in each case. Those who can submit reports include medical malpractice payers, state authorities, hospitals, formal peer review organizations, government agencies, health plans, licensing groups and private accreditation organizations.

The good news is that the Data Bank remains committed to serving both the health care organizations and the practitioners. Whenever a report is filed on a practitioner, he or she has a chance to view the information, review it for accuracy, and submit details regarding their side of the story. According to the Data Bank, it sees its overall goal as improving the quality of health care, which, many times, will involve the viewpoint and rebuttal of the defending practitioner.

The process of a report begins when an organization sends information to the Data Bank, which in turn processes the data and sends a copy of it to the reporting party. The Data Bank also sends a notification to the affected practitioner, who then can review the report for accuracy. Once the report has been officially filed, the practitioner can respond to it either by adding a statement or disputing its factual accuracy. In a last resort, the physician my also request a report review as a way of combating the file.

Any practitioner who has been involved in a malpractice case, license issue or other negative claim can find out if they are listed in the Data Bank by conducting a self-query through the Data Bank’s website. And, as medical malpractice attorneys, we at Gutglass, Erickson, Bonville & Larson encourage all practitioners to search the Data Bank for any reports that list them in order to be sure the records are accurate. Should any false or inconspicuous information be found and legal representation is needed, that practitioner should contact us right away. After all, reputation as a quality health care provider is crucial to a career, and physicians need to do whatever they can to protect it.

For a free case evaluation or to request legal assistance, contact Gutglass, Erickson, Bonville & Larson today!  

Charting Your Course: Keeping Good Medical Records

By | Blog, Medical Malpractice, Uncategorized | 5 Comments

When it comes to malpractice suits, a medical chart can be either your best friend or your worst enemy. Regardless of what happened in the exam room, unless it is on paper, it never happened. At least, that’s how a jury will see it, and how a patient will many times claim it. That’s why, in order to protect yourself and your reputation as a medical provider, you need to become excellent at keeping records.

A medical record is both a medical and a legal document. Detailed records are not only important for the patient’s care, but also for providing solid evidence in the case of a negative outcome. A thorough, accurate medical record provides evidence that a physician took appropriate actions, and it can be used in a court situation to reinforce the level of care provided. When a patient’s memory of the procedure fails to recall certain actions, the jury can look at the medical records to see what really took place during his or her treatment.

Many times, however, it’s not good enough just to keep good records. All charting must be done at key moments in the process in order to dispute any idea that they are illegitimate. Beginning with the new patient interview, each physician should gather detailed information regarding the patient’s medical history and obtain his or her previous medical records. Any information that is recorded incorrectly during this visit will lead to repeated care mistakes throughout the treatment.

It is also critical to document any differential diagnosis. Many times, a patient’s attorney will ask a defending physician how he or she reached a certain diagnosis while trying to prove that all of the possibilities weren’t considered. However, if a physician has kept good record of differential diagnoses, he or she can prove what options were considered and why others were dismissed.

Follow-up care must also be documented well. If a patient makes a complaint that goes ignored, it can be highly detrimental to a defending physician. Juries hold physicians to a higher level of responsibility than they do patients and expect doctors to prioritize patient calls, test results and any complaints that are made during the process. Juries view the management of these actions to be the physician’s responsibility and will usually find in favor of the patient if no records show that proper follow-through was provided. In order to avoid this, all complaints should be recorded along with the follow-up actions taken by physicians.

Informed consent is another critical area that must be noted and is legally required before a procedure is taken. Failure to secure the patient’s consent can put the physician at risk for any number of claims including medical battery. Documenting the informed consent interview, however, proves that the patient was aware of the situation and agreed with the treatment. The records must include the different treatment options along with the risks of the procedure. It should be signed by the patient and a witness, as well as the physician.

Notes taken during the procedure and treatment are also necessary. Juries tend to see detailed descriptions as indicators of attentive treatment and will take that into consideration when evaluating the case. Plus, detailed notes also provide evidence that a procedure was done properly and that a high level of care was taken even if the outcome is undesirable.

Finally, charting is also critical at the time of a patient’s discharge. When a physician releases a patient, he or she should note details regarding the person’s leaving condition, any follow-up actions needed, prescription information, test results and any concerns or side notes. Both the physician and the patient should sign the discharge form in order to show that both agreed on the terms of release and follow-up care.

At any point during the treatment, physicians should make clear note of a patient’s noncompliance or refusal of care. Doing this can show a jury that the patient was responsible for the unfavorable results, and it can shift the burden from the physician.

At the Law Offices of Gutglass, Erickson, Bonville & Larson, we are experienced at providing legal services to physicians and medical personnel facing malpractice charges. That’s why we encourage the practice of keeping good records. As attorneys, we know that written records are valuable pieces of evidence that can make or break a case. Today, if you are a medical care provider who has gotten lax in your documentation, we urge you to re-engage the habit. Doing so could save you in both finances and good standing should the unthinkable happen. And for those who are already facing charges, we encourage you to call us for a free case evaluation. We’ll review your situation and do whatever we can to help you retain your business and defend your reputation.

To schedule your free consultation, contact Gutglass, Erickson, Bonville & Larson today! 

Not-So-Informed Consent

By | Blog, Medical Malpractice, Uncategorized | 7 Comments

Most medical providers are familiar with the concept of informed consent in which a patient gives permission for a medical or surgical procedure after achieving an understanding of the relevant facts and risks involved. It’s a basic procedure that should have basic results, but with the recent ruling of the Wisconsin Supreme Court in the case of Jandre v. Physician’s Insurance Co. of Wisconsin, those basics are getting increasingly complex.

This spring, the Supreme Court ruled in favor of plaintiffs Thomas W. Jandre and Barbara J. Jandre after events that had taken place in an emergency room in 2003. On June 13 of that year, Thomas Jandre presented to the ER after experiencing 20 minutes of slurred speech, facial weakness on his left side and dizziness. He was treated by Dr. Therese Bullis, who established differential diagnoses including among other things Bell’s palsy, stroke and Multiple Sclerosis. After ordering a CT scan, which returned negative for hemorrhagic stroke, Dr. Bullis diagnosed Jandre with a-typical Bell’s palsy, prescribed medication for him and instructed him to follow up with his primary care physician within a week. Three days later, Jandre saw his primary care physician and was diagnosed with resolving Bell’s palsy. Eight days after that visit, Jandre suffered a massive stroke. And, due to the fact that Dr. Bullis had not informed him that additional tests were available for detecting a stroke, the courts ruled in favor of Jandre who plead a violation of informed consent.

It’s a rare thing today to find a medical malpractice case that doesn’t involve informed consent. Because it requires no expert testimony and is based solely on what a person would want to know as a patient, it is completely subjective. Medical practitioners are at the mercy of what a court believes a “reasonable” patient should have known before the incident occurred, and are thus subjected to the jury’s speculative opinion. Unfortunately this has led to inconsistent verdicts in which physicians are not found to have been negligent in their treatment, but are still in violation of informed consent. And until the court system establishes more concrete laws on the subject, there is little that can be done to change the outcomes.

There is, however, one thing that could change each situation dramatically, and that is proper documentation.

The best way to combat informed consent violations is to put everything in writing. Not only must you have the proper discussions that outline every possible scenario for a patient, you also must put it in writing. By taking detailed notes of the discussion, a physician can at least have proof that certain options were discussed with each patient and that he or she understood the possible outcomes. Each medical provider should also create a patient consent form to be signed by the patient prior to treatment. This form should include the name of the procedure, the physician performing the duty, an outline of the risks and benefits, any alternatives that were discussed, and that the patient had the opportunity to ask any questions. Not only should this form be signed by the patient, it also should include the signatures of both a personal witness and another health care provider involved in the treatment. It may also be beneficial to have the patient initial after each paragraph to ensure extra credibility.

While informed consent will likely remain a subjective topic among the courts, physicians can do themselves a huge favor simply by getting everything in writing. At Gutglass, Erickson, Bonville & Larson, we encourage you as a medical provider to do your best to inform your patients of all possible treatments and outcomes and then to get it on paper. Doing so could make an incredible difference should the subject come up in a legal situation.

So, do your part to take good notes and know that if you need excellent legal representation for any medical malpractice claim, we at Gutglass, Erickson, Bonville & Larson would be happy to offer a free case evaluation. Call us today!  


Accountable Care Organizations and Medical Professional Liability: What's the Connection?

By | Blog, Insurance Law, Medical Malpractice | One Comment

As attorneys who represent a variety of clients from the medical and insurance industries, we at Gutglass, Erickson, Bonville & Larson find it interesting when a topic surfaces that combines the two.

With the election year being in full swing and health care being one of the main topics, the Patient Protection and Affordable Care Act is being debated at great length. While the details of the act remain a mystery to most of the public, there are a few aspects that have increased awareness regarding patient protection.

Through the PPACA (otherwise known as Obamacare), accountable care organizations (ACOs) are being developed in order to increase the quality of health care services available to patients. Each ACO groups together health care providers including primary care physicians, specialists, nurses and hospitals and gives them a financial budget from which to collectively care for a patient. The goal is to achieve better coordination among the groups and eliminate unnecessary treatments through a more streamlined health care process. If the financial goals are achieved, the savings are shared among the care providers. According to the PPACA, the expectation is that integrating care will increase productivity and decrease expenses leading to favorable outcomes for both the providers and the patients.

While we’ll leave the politics and our opinion aside, we will talk about how this relates to the insurance companies who focus on medical professional liability (MPL). With the ACO structure, health care providers will be integrating their procedures, meaning that MPL policy writers would have to account for changes in the frequency and severity of claims when pricing coverage. If the coordinated care does what it is designed to do, medical errors would decrease and standards of care would increase. One would decrease claims while the other could increase them, and policy writers would have to account for the change in frequency and nature.

There also is the potential for claims from patients to increase due to the number of “non-critial” procedures that will be eliminated through the ACO process. With cost and time savings being the goal, more exploratory tests and exams would be eliminated, which could potentially lead to more claims filed by patients if they are misdiagnosed.

Some industry analysts theorize that as ACOs look to control costs and consolidate efforts, many insurance companies could suffer as niche markets take a backseat by being incorporated into larger programs. Those smaller companies who focus on certain geographical locations also could be at risk as the coverage is rolled into greater policies.

At Gutglass, Erickson, Bonville & Larson, we are experienced in both medical malpractice defense and insurance defense, which is why we find this process particularly interesting. Truly, changes in the industry are taking place, and we need to pay close attention this fall as our nation’s leadership is determined. The result of this presidential election will most likely determine whether or not these trends remain moving forward or are stopped altogether. Either way, it should be interesting.

For now, however, know that we at Gutglass, Erickson, Bonville & Larson will continue to keep providing excellent representation to you whether you are a health care provider, medical insurance professional or any number of our clients in other areas. Our goal is to simply keep doing our job and roll with the laws as they change making sure we know what they are and how to handle them.

For a free case evaluation, call us today!