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Issue 8 February 2014

Counsel’s Corner page 3

Who’s Taking Call for Your Practice? page 4

Failure to TreatDecreased Blood Flow Results in Amputation page 6

2 | MICA Risk Rundown | February 2014

M I C A A N N O U N C E S

Medical Professional Liability Insurance

(602) 956-5276(800) 352-0402www.mica-insurance.com

CONSECUTIVE YEARS OF DIVIDENDS

At its December Board Meeting, MICA’s Board of

Trustees approved a $30 million dividend to be

distributed to qualifying members as of December 31,

2013.

This is MICA’s ninth consecutive year of dividends,

and our nine-year total of dividends distributed to

policyholders is $310 million.

Contact MICA to learn more about the benefits of

membership in a physician-owned mutual insurance

company.

Dividends declared for a policy year reflect the Company’s financial

performance during that year. Past performance does not guarantee

future dividends.

MICA_RoundUp02'14ad_MICA_RoundUp3'04ad 1/16/14 11:34 AM Page 1

2 | MICA Risk Rundown | November 2013

relevant risk management programs to educate and protect our members, ag-gressive defense against

claims, and paying dividends to our members when fi-nancial conditions warrant. In fact, over the past five years, we have paid $212 million in dividends to our members.

of choice for physicians and their groups, medical facili-ties and nurse practitioners.

Our values include

outstanding service to our members, affordable insur-ance coverage, prudent underwriting principles,

MICA was founded in 1976 after the largest medical professional liability (MPL) insurance carrier an-nounced it was no longer underwrit-ing MPL insurance coverage for the physicians of Ari-zona. MICA offers stability through the peaks and valleys of the insurance cycle.

Our mission is to protect and de-fend the practice of medi-cine in Arizona, Colorado and Utah. Our vision is to be the insurance company

About us

Executive Staff: James F. Carland, III, M.D. President & Chief Executive Officer Ronald E. Malpiedi, Vice President & Chief Operating OfficerEdward G. Marley, MBA, Vice President & Chief Financial Officer Robin L. Charles, MBA, CIC Vice President, Marketing & Corporate Communication Karen S. Connell, RN, BSN, MA, Vice President, Risk Management ServicesWalt Davis, Vice President, Claims Mary K. Hedin, MBA, RPLU, Vice President, UnderwritingLeon W. Kochan, M.C.Ed, Vice President, Human ResourcesDarren J. Palmer, Vice President & Chief Information Officer

Board of Trustees: James F. Carland, III, M.D., Chairman Marc L. Leib, M.D., Vice ChairmanJoseph W. Hanss, Jr., M.D., Secretary Douglas P. Jensen, M.D., Treasurer Phyllis I. Biedess James G. Leiferman, M.D. Steven P. Matteucci, J.D.

Our mission is to protect and defend the practice of medicine in Arizona, Colorado

and Utah.

Jeffrey W. Morgan, D.O. Karen J. Nichols, D.O. David A. Pedersen, M.D. J. Greg Rula, M.D. Amy A. Silverthorn, M.D. Walter K. Sosey, M.D. Charles W. Swetnam, M.D.Michael A. Trainor, D.O.

2 | MICA Risk Rundown | February 2014

February 2014 | MICA Risk Rundown | 3

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QA

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3About us

Counsel’s CornerCan you help me understand the recent changes to HIPAA and what I should be doing to be compliant?

On January 17, 2013, the Department of Health and Human Services issued final amendments to the Security, Breach Notification and Enforcement Rules (the "HIPAA Rules") under the Health Insurance Portability and Accountability Act ("HIPAA"), as directed pursuant to the Health Information Technology for Economic and Clinical Health ("HITECH") Act. The 2013 Amendments were effective March 26, 2013, and compliance with applicable requirements was to have been achieved within 180 days, by September 23, 2013. Despite these deadlines, many physicians know little about the recent changes and have not taken the appropriate steps to become compliant. The Rules are lengthy and cannot possibly be adequately summarized here. That said, there are some critical steps that can be used as a starting point for compliance. The following are three issues that should be addressed by physicians as soon as possible:

Update Required Security and Privacy Policies and Procedures.It has been years since many physi-cians have evaluated their security and privacy policies and procedures. Covered entities and Business Associ-ates should review and update policies and procedures to ensure compliance

with the HIPAA Privacy and Security Rule and the 2013 Amendments. For example, the Rule sets updated limits on the manner in which information can be used and disclosed for marketing and fundraising purposes and the Rule prohibits the sale of health information without the permission of the patient. Your policies and procedures should address the new limits on permissible use of health information for marketing purposes and fundraising and the prohi-bition on the sale of health information without patient permission. These are just two examples of several possible ways in which your policies and proce-dures may need to be amended.

Enter Into or Update Business Associate Agreements. Physicians must ensure that they have the appropriate business associate agreements in place and that those business associate agreements are up to date and compliant. Business associ-ates must also enter into appropriate business associate agreements with their subcontractors. The 2013 Amend-ments require, for the first time, that business associates enter into busi-ness associate agreements with their subcontractors. Business associates must now comply with the Security and Breach Notification Rules. Business As-sociate Agreements that have not been renewed or modified between March 26, 2013 and September 23, 2013 will be deemed compliant until the date the

Business Associate Agreement is re-newed or modified or until September 22, 2014, whichever is earlier.

Update Required HIPAA Notice of Privacy Practices.Under the 2013 Amendments, physi-cians are required to update their HIPAA Notice of Privacy Practices to cover sev-eral important changes. For example, covered entities’ Notice of Privacy Prac-tices should inform the patient that they will be notified if their protected health information is breached. The Rule up-dates breach notification requirements and definitions. The Notice of Privacy Practices should also inform the patient that they have the right to opt out of fundraising communications.

These are just a few of many issues ad-dressed in the 2013 Amendments. Every practice is different, and HIPAA is not a one size fits all proposition. Given that the Rule also updates and strengthens enforce-ment and penalty provisions, it is important to evaluate where you or your practice is with respect to HIPAA compliance. Often, physicians may need to seek outside spe-cialized assistance in understanding HIPAA and becoming compliant.

Brian Miller, Esq. Snow, Christensen & Martineau

4 | MICA Risk Rundown | February 2014

I

Who’s Taking Call for Your Practice?

n the physician/patient relationship, it is the physician’s responsibility to avoid leaving patients without medi-cal attendance and to ensure that patients who are in need of continu-ing care will receive it. Office staff

should have a clear understanding of who will be responsible for the follow-up of the physi-cian’s patients. Phone calls from patients, pharmacies and other physicians should be addressed and, when appropriate, forwarded to a covering physician or qualified healthcare clinician. There are a variety of alternatives that can be implemented to address this con-cern, but the key is to have a reasonable plan when the physician is unavailable.

Many groups or clinics will rotate call among the physicians and mid-level practitioners. This may allow access to the medical records to obtain pertinent clinical information about the patient. Physicians in solo practice often

share call with other solo practitioners. Since medical records are not usually available in these situations, the physicians sharing call must obtain the pertinent medical information from the patient. A check-out procedure to transmit patient information about hospital-ized patients or others who are being closely followed is a good communication method to assist with continuity of care. Whether call is shared by a group, clinic or solo practices, medical advice given to patients should be documented.

Rural communities often have a limited num-ber of physicians. It can be difficult for physi-cians, especially specialists, to arrange for call coverage by a similarly qualified practitioner. Advance planning is important to develop a reasonable plan for how patient care will be handled during the physician’s absence. Consider what resources are available in the community, as well as those outside. If an

extended absence is anticipated, arranging for a locum tenens may be helpful. Additionally, physicians in nearby communities might be willing to cover for non-urgent calls.

Working with a triage call center may be helpful when physicians want to reduce the number of calls they receive from pa-tients. The call center should be staffed with registered nurses and use specific written guidelines or protocols. Via telephone, a nurse assesses the patient’s condition and determines the type of intervention needed, which might include emergency care, refer-ral to the physician or specialist or self-care treatment modalities. Before contracting with a call center, ensure that it has adequate num-bers of appropriately trained and credentialed staff and written guidelines or protocols that meet the standard for care. Additionally, it is important that callers are not holding for long periods of time.

February 2014 | MICA Risk Rundown | 5

Risk Management strategies: Plan ahead

Not only consider call coverage for nights, weekends and holidays, but what will happen in the event of an injury or illness.

Policies and proceduresDevelop written policies and pro-cedures for call coverage.Clarify that it is the responsibility of the on-call physician to arrange for substitute coverage and to com-municate the change, in writing, to all involved parties.Educate office staff about the poli-cies and procedures for on-call physicians.

CommunicationCirculate a written call schedule to the involved physicians and staff. Communicate with the on-call phy-sician or other healthcare clinician

regarding hospitalized patients, pa-tients with special needs or com-plex medical conditions. Patients who are recently discharged from the hospital, immediately post-sur-gical or in the care of a hospice may need to contact their physician after normal office hours. Communicat-ing this information in advance will help the on-call physician anticipate problems that may arise. A clear request for call coverage should be communicated by the treating physician and a definitive response received back from the physician who will cover the call. When possible, inform patients in advance of extended periods when the physician will be out of the office, such as a long vacation or planned medical leave.

DocumentationDocument the calls received and any medical advice given to pa-tients. This should be shared with the treating physician so it can be filed in the patient’s medical record.

Once the physician/patient relationship is established, the physician should provide coverage for the patient. Patients who call their physician’s office seeking care have a reasonable expectation that they will be able to contact their physician or a representative. Remember, in a lawsuit or a complaint to the licensing board, the care will be retrospectively reviewed. It may be considered abandonment or negligence if sufficient measures have not been taken to address the patient’s continuing care needs in the physician’s absence.

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64-year-old woman was seen in her primary care physician’s office by the nurse practitioner. The patient described being struck by an automobile a few days earlier. The NP documented a large

abrasion on the left leg with some purulent drainage and a large bruise on the patient’s back. The patient reported that her left leg felt cooler to the touch than her right leg. The patient was advised to go to the emergency room for any worsening pain, numbness or tingling in the leg. The documentation of the visit did not contain the patient’s observation of the coolness in the left leg.

Two days later the patient was seen again by the NP. The patient still complained of cool-ness in the left leg and said that the leg got progressively colder toward her foot and toes. She told the NP her toes were slightly dis-

colored. The documented exam was cursory, and the patient was given an appointment to see the primary care physician the following week. When the patient was examined, the left lower leg showed some swelling and the left great toe and second toe were dusky. There were palpable, but diminished, pulses in the left leg compared with the right. The patient was referred to a surgeon.

The next day the surgeon examined the pa-tient and noted that the toes on the left foot were bluish and cold. The surgeon noted faintly palpable bilateral femoral pulses, but no palpable pulses in the popliteal, posterior tibial or dorsalis pedis arteries. A Doppler ul-trasound was performed and the patient was noted to have intact posterior tibial pulses bilaterally but no dorsalis pedis pulse on the left. The surgeon planned to repeat the ul-trasound of the left leg in two weeks. The

surgeon advised the patient that it was OK to leave on vacation the next day.

The following day the patient consulted with another surgeon. She complained of severe left foot pain and foot discoloration. She was immediately admitted to a hospital for an angiogram which noted a thrombus in the proximal superficial femoral artery with a complete occlusion of the popliteal artery above the knee. She was taken to surgery twice over the next two days in an attempt to restore meaningful blood flow to her leg. The attempts were unsuccessful and she underwent amputation of her left leg above the knee.

The patient sued the PCP, NP and first sur-geon, alleging failure to timely diagnose her arterial occlusion. The case was settled for a six figure amount.

Failure to TreatDecreased Blood Flow Results in Amputation

February 2014 | MICA Risk Rundown | 7

Problems with this Case:

The documentation by the NP, PCP and first surgeon regarding the physical ex-amination and patient complaints during visits was cursory.There was no evidence of NP collabora-tion with the PCP regarding the patient’s history, physical exam and continued complaints of increasing coolness in the injured limb during the second visit. No treatment plan was identified. There was no evidence of communica-tion among the members of the patient’s care team.The plaintiffs’ expert expressed the opin-ion that there was a delay in the defini-tive diagnosis of arterial occlusion and implementation of treatment. He testi-fied that the delay caused the patient’s amputation.

Discussion: Many claims contain allegations of substan-dard clinical judgment often described as “lack of alert hovering” by the attending physician or surgeon leading to delayed diagnosis of complications, such as the arterial occlusion identified in this case. Ineffective or absent communication and inadequate documenta-tion are also frequent allegations. Failure to recognize signs and symptoms arising from an injury with subsequent delay in treatment is a frequent component of a poor patient outcome.

In this case, pitfalls in clinical reasoning and ineffective communication resulted in the loss of the patient’s limb. Greater familiarity with the decision-making process and more ef-fective communication would have increased the chances for a better outcome. Strategies

which could have improved the outcome in this case include:

Establishing a differential diagnosis and working through it.Stepping back from the initial diagnosis when additional information is devel-oped; using the “fresh eyes” approach.Taking steps to insure against incomplete or misunderstood communication dur-ing any handoffs of care that may occur throughout the course of treatment. Providing documentation that is a clear representation of the facts as they ex-isted at the time of care, as well as the thought process for the plan of care.Participating in efforts to focus on a healthcare culture of patient safety.

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PRSRT STDU.S. POSTAGE

PAID

SALT LAKE CITY, UTPERMIT NO. 571

2602 E Thomas Rd Phoenix, AZ 85016

The information contained in this publication is intended to provide general information for review and consideration. The contents do not constitute legal advice and should not be relied on as such. If you need legal advice or assistance, it is strongly recommended that you contact an attorney as to your specific circumstances.

M I C A A N N O U N C E S

Medical Professional Liability Insurance

(602) 956-5276(800) 352-0402www.mica-insurance.com

CONSECUTIVE YEARS OF DIVIDENDS

At its December Board Meeting, MICA’s Board of

Trustees approved a $30 million dividend to be

distributed to qualifying members as of December 31,

2013.

This is MICA’s ninth consecutive year of dividends,

and our nine-year total of dividends distributed to

policyholders is $310 million.

Contact MICA to learn more about the benefits of

membership in a physician-owned mutual insurance

company.

Dividends declared for a policy year reflect the Company’s financial

performance during that year. Past performance does not guarantee

future dividends.

MICA_RoundUp02'14ad_MICA_RoundUp3'04ad 1/16/14 11:34 AM Page 1

© 2014 Mutual Insurance Company of Arizona