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Reducing Malpractice Claims
2 Classmate responses will be added at a later time.
You are the risk manager of a hospital and have been asked to make a speech to doctors and nurses about how to prevent malpractice claims.
For your initial post, draft a short speech outlining the most important guidelines and best practices for healthcare providers to limit medical mistakes and reduce potential liability. Provide specific steps they can take to protect themselves and the organization from malpractice and other kinds of claims against providers. If you use resources in your speech, remember to cite them according to APA guidelines. Write a post of 2 paragraphs
3-1 Discussion: Reducing Malpractice Claims
You are the risk manager of a hospital and have been asked to make a speech to doctors and nurses about how to prevent malpractice claims.
For your initial post, draft a short speech outlining the most important guidelines and best practices for healthcare providers to limit medical mistakes and reduce potential liability. Provide specific steps they can take to protect themselves and the organization from malpractice and other kinds of claims against providers. If you use resources in your speech, remember to cite them according to APA guidelines. Write a post of 2 paragraphs
Articles and Video’s
· This page from the UCLA Health website briefly discusses the federal Anti-Kickback Statute, Stark Law, and the False Claims Act.
· This chart was created by the Health Care Fraud Prevention and Enforcement Action Team (HEAT)
· This article covers the implications of an apology in relationship to a medical mistake.
https://www.youtube.com/watch?v=44SuVhP8W-g
In this news segment, “Tampa residents were among 243 people arrested in a Medicare fraud bust.”
Video: The Faces of Medicare Fraud (2:47)
CNN Money report: Larry Duran, owner of American Therapeutic Corp., faces 12 counts of fraud in one of the largest fraudulent Medicare billing schemes.
Video: Medicare Fraud (1:16)
From 60 Minutes: “Billions of dollars are being stolen from Medicare each year. Steve Kroft spoke to one man who got caught and explained how he managed to bilk the system.”
In your response to your peers, consider whether you agree with the guidelines they considered to be most important. Explain why or why not. Write a post of 1 to 2 paragraphs
Classmate # 1
Classmate # 2
7/11/2020 Business Insights: Global
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Dealing with a medical mistake: should physicians apologize to patients?
Medical Economics
Q To err is human. Every physician at any experience level has made a medical error. Sometimes mistakes can cause harm to patients. How should a physician respond? Is there a role for an apology, or will that lead to a lawsuit?
MOST MEDICAL errors go undetected, and most of those that are caught don’t result in harm to a patient. But when harm is caused, the question becomes: How should a physician respond? Is there a role for an apology to the patient?
The conventional answer is” No, don’t apologize.
The theory underlying that answer is that in a subsequent civil suit by the patient, the apology could be admitted into evidence against the physician, and it wouldn’t be excluded on the grounds of hearsay, because of the hearsay exception for admissions and statements against one’s own interest. For a number of reasons, though, this conventional answer may not always–or even usually–be the correct one.
Physicians must disclose mistakes
The American Medical Association has long taken the position that a physician has an ethical duty to disclose a harmful error to a patient.
In practice, it may be difficult to disclose, let alone describe, an error without apologizing. Failure to accompany the disclosure with an apology might be interpreted by the patient as a lack of remorse.
If the error occurs in a hospital, The Joint Commission requires that the hospital disclose it to the patient. This requirement, like the AMA’s ethics rule, may put the physician in the position of either apologizing or appearing callous.
In recent years states have begun to add the force of law to these ethical and regulatory disclosure requirements. For example, a number of states now require hospitals to disclose all serious errors. If a physician was involved, the disclosure creates pressure to apologize.
Two kinds of ‘Apology Laws’
Several states have also enacted so-called “Apology Laws” which should mitigate the conflict a physician faces when trying to meet the patient’s desire for an apology while avoiding self-incrimination.
These Apology Laws change the traditional evidentiary rule by providing that apologies are not admissible in civil actions for medical errors.
Apology Laws fall into two categories. One category protects apologies and acknowledgements of fault–admissions of responsibility–that go with the apologies. Colorado has a statute in this category. The second category protects the apology itself but not any acknowledgement of fault. Indiana has this second category. The “communication of sympathy” is inadmissible, but a “statement of fault” (if any is made) remains admissible.
How ‘Apology Laws’ work
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Assume, for example, that a Colorado physician and an Indiana physician each said to a patient, “l made a mistake. I’m sorry.”
In Colorado neither sentence could be used as evidence against the physician. In Indiana the first sentence could be used as evidence, but the second sentence could not.
In practical terms, this means that the Indiana physician making an apology must take great care in formulating and expressing the apology. The physician would be well advised to consult an attorney to formulate the precise wording of any apology.
The legal benefits of an apology
What happens when a physician apologizes? Of course, innumerable variables are involved in such an analysis.
But there is good evidence indicating that instead of increasing lawsuits and awards to patients, apologies actually reduce both the incidence of lawsuits and the amount of awards. Evidence from multi-year studies at both the Veterans Administration Hospital of Lexington, Kentucky, and University of Michigan Health support this conclusion.
What patients want after a medical error
According to Lucian L. Leape, MD, of the Harvard School of Public Health, what the victim of a medical error most desires is that the physician:
* acknowledge the error and explain it;
* take responsibility and apologize; and
* find the underlying cause and prevent its recurrence.
A study by Carol Liebmann and Chris Hyman published in the July 2004 issue of Health Affairs reached a similar conclusion.
The study also concluded that even when patients file suit, their primary motivations are:
* perception that the physician was not honest about the incident;
* perception that no one explained what happened; and
* advice from someone-often another health professional–to issue.
The conclusions of these studies are consistent with one another and with the idea that an apology may very well be an excellent way to avoid a lawsuit. If a physician denies a patient what the patient most wants–acknowledgement and explanation of the error and assurance that it won’t recur–the patient will be more likely to feel compelled to sue.
Practical implications of an apology
What are the practical implications of these considerations for a physician who has committed an error that caused harm?
We know that the physician is obligated to disclose the error by professional ethical considerations, regulatory requirements, and by statutes in many states. We know that the disclosure can be awkward and even offensive if not coupled with an apology. We know that many states have Apology Laws that bar the apology from admission into evidence. And we know that research says withholding an apology may well deny the patient the very thing that the patient most wants. And that may be what triggers a lawsuit.
Conventional wisdom may be incorrect
In light of all this, then, in many cases conventional wisdom–that it’s dangerous to issue an apology–may not only be incorrect, it may actually be counterproductive and lead to a lawsuit.
Of course, whenever possible, a physician should consult an attorney before deciding how to proceed. But in doing so, both the physician and the attorney should critically reflect on whether the conventional answer is helpful or
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harmful.
So don’t immediately discount the power of a sincere apology. After all, if to err is human, to apologize may be benign.
The answer to this question woos provided by Norman G. Tabler, Jr., Counsel in the Indianapolis, Indiana, alice of Faegre Baker Daniels LLP and a member of the firm’s Health & Life Sciences practice group. Send your practice management questions to medec@advanstar.com.
Tabler, Norman G.
Full Text: COPYRIGHT 2013 UBM LLC. http://www.ubm.com/home
Source Citation:
Tabler, Norman G. “Dealing with a medical mistake: should physicians apologize to patients?” Medical Economics 10 Nov. 2013: 36+. Business Insights: Global. Web. 11 July 2020.
URL http://bi.gale.com.ezproxy.snhu.edu/global/article/GALE%7CA361711179/adaa9caccba53fa217b7ad675096ad31? u=nhc_main
Document Number:
GALE|A361711179
7/11/2020 Fraud and Abuse Laws and Regulations – Office of Legal Affairs, UCLA Health – Los Angeles, CA
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Numerous federal laws regulate the referral of patients by healthcare providers. These laws are intended
to prevent conflicts of interest between provider financial incentives and best patient care
practices. Federal “fraud and abuse” law is actually a compilation of several laws, including the Federal
Anti-Kickback Statute, the Stark Law, and the False Claims Act.
A. The Federal Anti-Kickback Statute
The Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7(b)) prohibits providers of services or goods
covered by a federal healthcare program (“Federal Healthcare Program”) from knowingly and willingly
soliciting or receiving or providing any remuneration, directly or indirectly, in cash or in kind, to induce
either the referral of an individual, or furnishing or arranging for a good or service for which payment may
be made under a Federal Healthcare Program. The Federal Anti-Kickback Statute is an intent-based
statute. For purposes of the Federal Anti-Kickback Statute, a “Federal Healthcare Program” is defined as
“any plan or program that provides health benefits, whether directly through insurance, or otherwise,
which is funded directly, in whole or in part, by the United States Government; or any State health care
program . . .” (42 U.S.C. § 1320a-7(b)(f)). The Medicare, Medicaid, and TRICARE Programs are all Federal
Healthcare Programs.
Certain transactions and arrangements are statutorily exempt from the Federal Anti-Kickback Statute (e.g.,
compensation paid pursuant to a bona fide employment relationship). In addition, transactions and
arrangements that comply fully with established Safe Harbor regulations will not be prosecuted under the
Federal Anti-Kickback Statute. Significantly, however, a transaction or arrangement that does not meet all
the requirements of a Safe Harbor regulation is not per se illegal.
The Federal Anti-Kickback Statute is a criminal statute and the penalties for violations of the law can be
severe. They include fines of up to $25,000 per violation, felony conviction punishable by imprisonment
up to five years, or both, as well as possible exclusion from participation in Federal Healthcare Programs.
B. The Stark Law
The Stark Law, 42 U.S.C. § 1395nn (also known as the “Physician Self-Referral Statute”), generally prohibits
the referral of Medicare and Medicaid beneficiaries by a physician to an entity for the provision of
“designated health services” if the physician, or the physician’s immediate family member, has a financial
relationship with the entity, unless a statutory exception applies to that financial relationship. For
purposes of the Stark Law, a “financial relationship” can include an ownership interest, an investment
interest, and/or a compensation arrangement. Unlike the Anti-Kickback Statute, the Stark Law is a strict
liability statute and thus, no proof of bad intent is required to violate the Stark law. As a result, any
arrangement that does not satisfy all of the criteria of a statutorily-defined Stark Law exception is illegal.
The Stark law provides for significant civil sanctions for violations including, but not limited to: the denial of
payment of a claim; refunds of amounts collected in violation of the statute; and civil monetary penalties
up to $15,000 for each claim submitted in violation of the statute.
C. The False Claims Act
Fraud and Abuse Laws and Regulations
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7/11/2020 Fraud and Abuse Laws and Regulations – Office of Legal Affairs, UCLA Health – Los Angeles, CA
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The False Claims Act, 31 U.S.C. § 3729, imposes liability upon any person who knowingly submits or
causes the submission of false or fraudulent claims for payment or approval. Under the False Claims Act’s
qui tam provisions, a person with evidence of fraud against the government (known as a “relator” or a
“whistle-blower”) is authorized to file a case in federal court and sue on behalf of the government.
In the healthcare context, examples of conduct that can arguably lead to charges of violations of the
statute include, but are not limited to: billing for medical services not rendered; misrepresenting the level
of services rendered; falsely certifying compliance with federal laws; and submitting a claim for payment
that is contrary to Medicare or Medicaid payment requirements.
The False Claims Act provides that a person who violates the statute is subject to civil penalties of not less
than $5,000 or more than $10,000, plus potential treble damages, for each false claim filed.
* * *
These fraud and abuse laws can be implicated in a variety of health care contracts and arrangements
such as clinical services agreements, joint venture arrangements, and certain educational grants.
Potential fraud and abuse issues may also arise within the context of certain David Geffen School of
Medicine at UCLA faculty appointment/employment arrangements.
Please direct any questions regarding UCLA Health’s compliance with fraud and abuse laws to the UCLA
Health Office of Legal Affairs.
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