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Quarter 3, 2016

BUILDING CULTURAL COMPETENCY

CME ACTIVITY: TREATING AND ACCOMMODATING PATIENTS UNDER THE AMERICANS WITH DISABILITIES ACT, PART TWO

CLOSED CLAIM STUDY 1: UNNECESSARY SURGERY

CLOSED CLAIM STUDY 2:FAILURE TO MONITOR WARFARIN PRESCRIPTION

TMLT BOARD ELECTION 2017

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By Wayne Wenske, Communications Coordinator, andCassidy Penn, M.Ed., Risk Management Services Assistant

E ditor’s note: the definition of “minority group” used in this article is consistent with that of the U.S. Office of Management and Budget (OMB - 15

Directive) and includes American Indian or Alaska Native, Asian, Black or African American, Hispanic or Latino, and Native Hawaiian or other Pacific Islander.

BUILDING CULTURAL COMPETENCY

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In 2015, the U.S. Census Bureau released a report that analyzed the nation’s population looking toward the year 2060. Details in this report, named “Projections of the Size and Composition of the U.S. Population: 2014 to 2060,” include the following:

• The U.S. population is expected to grow from 310 million in 2014 to 400 million in 2051 and 417 million in 2060.

• By 2020, more than half of all children are expected to be part of a minority race or ethnic group.

• The minority population is projected to rise to 56 percent of the total population in 2060, compared with 38 percent in 2014.

• By 2044, the US is projected to become a plurality nation. Meaning, no race or ethnic group is projected to have greater than a 50 percent share of the nation’s total.1

What does this mean for health care? These statistics suggest that health care professionals will increasingly need to recognize and work with cultural differences to deliver quality health care. This ability is often referred to as “cultural competency.”

This article will introduce the concepts of cultural competency and health disparities and biases that may come from treating patients of different backgrounds. Also discussed will be methods to help you improve the cultural competency of your practice.

WHAT IS CULTURAL COMPETENCY?According to a 2002 report by the Commonwealth Fund, cultural competency in health care “describes the ability of systems to provide care to patients with diverse values, beliefs, and behaviors, including tailoring delivery to meet patients’ social, cultural, and linguistic needs. The ultimate goal is a health care system and workforce that can deliver the highest quality of care to every patient, regardless of race, ethnicity, cultural background, or English proficiency.”2

The U.S. Department of Health and Human Services (HHS) defines cultural competency as “the level of knowledge-based skills required to provide effective clinical care to patients from a particular ethnic or racial group.” However, religion, age, generation, economic class, disability, gender, sexual orientation, and other traits may also define a cultural identity.3

The Association of American Medical Colleges (AAMC) further defines cultural competency as a “set of congruent behaviors, knowledge, attitudes, and policies” that come together to enable effective work in cross-cultural situations. “Culture” is defined as “integrated patterns of human behavior,” including language, customs, beliefs, and institutions of racial, ethnic, social,

or religious groups, while “‘competence’ implies having the capacity to function effectively as an individual or an organization within the context of the cultural beliefs, practices, and needs presented by patients and their communities.”4

BATTLING CULTURAL BIASCultural competency is not merely about being respectful of a person’s cultural background, religious beliefs, or language proficiency, it is also about ensuring that cultural bias does not affect your personal interactions.

Having a cultural bias is assuming that one’s own culture is accepted as “normal” and shared by everyone. For example, a cultural bias may be that Americans typically eat such foods as eggs, bacon, cereal, and toast for breakfast. But what about the people in America who eat noodles for breakfast? Or tortillas? Or hummus? Or any of the other myriad foods eaten for breakfast all over the world? Are they not normal?

Awareness of cultural differences can go a long way toward battling cultural bias. In the health care environment, cultural biases can lead to poor communication, a lack of understanding, and patients withdrawing from their physicians. Even worse, cultural bias can also lead to incorrect diagnosis and treatment, and lack of continuity of care. On the other hand, patients who feel their doctor is respectful of their background are more likely to be compliant with treatment.

Some of the following scenarios can be the result of cultural bias:

• Patients may avoid seeking medical treatment for fear of being misunderstood or having their beliefs disrespected.

• The physician’s lack of knowledge about cultural home remedies may lead to harmful drug interactions.

• Not providing translation services can lead to poor communication between patient and provider, leading to missed symptoms and possible wrong diagnosis.

• Language barriers can limit patient understanding of treatment plans.

• Providers who are not familiar with the unique health concerns among various minority groups may miss opportunities for screening and diagnosis.

TAKE ACTION TO BUILD A MORE CULTURALLY COMPETENT PRACTICEWhat can you do to make your practice more culturally competent? The National Institutes of Health (NIH) has published a list of National Standards for Culturally

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and Linguistically Appropriate Services in Health and Health Care (National CLAS Standards). These standards are intended to “advance health equity, improve quality, and help eliminate health care disparities by providing a blueprint for individuals and health care organizations to implement culturally and linguistically appropriate services.” The NIH further states that “adoption of these Standards will help advance better health and health care in the United States.”5

See the sidebar below to read the National CLAS standards.

Consider taking the following actions to increase the cultural competency of your practice:

• Provide interpreter services for patients who are hearing disabled. This is required of all medical practices and hospitals per the Americans with Disabilities Act (ADA). According to the ADA, physicians are required to make auxiliary aids and services available to the disabled, including qualified

interpreters for the hearing impaired.7 Create a list of interpreter or translation services in your area, and explore partnerships with other health care professionals.2

• Begin by being more formal with patients born in another culture. Culture often determines roles for polite, caring behavior.2

• Do not be insulted if the patient does not look you in the eye or ask questions.2

• Recruit and maintain bilingual staff members who are fluent in the language most appropriate to your patients. Advertise job opportunities in targeted foreign language and minority health professional association job boards and other media.8

• Provide linguistic competency that extends beyond the clinical encounter to the appointment desk, advice lines, medical billing, and other written materials.

• Provide staff training to increase cultural awareness, knowledge, and skills. Engage staff in dialogue about meeting the needs of diverse populations. Provide opportunities for CLAS

Principal StandardProvide effective, equitable, understandable, and respectful quality care and services that are responsive to diverse cultural health beliefs and practices, preferred languages, health literacy, and other communication needs.

Governance, Leadership, and WorkforceAdvance and sustain organizational governance and leadership that promotes CLAS and health equity through policy, practices, and allocated resources.Recruit, promote, and support a culturally and linguistically diverse governance, leadership, and workforce that are responsive to the population in the service area.Educate and train governance, leadership, and workforce in culturally and linguistically appropriate policies and practices on an ongoing basis.

Communication and Language AssistanceOffer language assistance to individuals who have limited English proficiency and/or other communication needs, at no cost to them, to facilitate timely access to all health care and services.Inform all individuals of the availability of language assistance services clearly and in their preferred language, verbally and in writing.Ensure the competence of individuals providing language assistance, recognizing that the use of untrained individuals and/or minors as interpreters should be avoided.Provide easy-to-understand print and multimedia materials

and signage in the languages commonly used by the populations in the service area.

Engagement, Continuous Improvement, and AccountabilityEstablish culturally and linguistically appropriate goals, policies, and management accountability, and infuse them throughout the organizations’ planning and operations.Conduct ongoing assessments of the organization’s CLAS-related activities and integrate CLAS-related measures into assessment measurement and continuous quality improvement activities.Collect and maintain accurate and reliable demographic data to monitor and evaluate the impact of CLAS on health equity and outcomes and to inform service delivery.Conduct regular assessments of community health assets and needs and use the results to plan and implement services that respond to the cultural and linguistic diversity of populations in the service area.Partner with the community to design, implement, and evaluate policies, practices, and services to ensure cultural and linguistic appropriateness.Create conflict- and grievance-resolution processes that are culturally and linguistically appropriate to identify, prevent, and resolve conflicts or complaints.Communicate the organization’s progress in implementing and sustaining CLAS to all stakeholders, constituents, and the general public.6

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training, including regular in-services, brown bag lunch series, and orientation materials for new employees.7

• Include family and community members in health care decision making. In many cultures, medical decisions are made by the immediate or extended family.2

RESPECTING CULTURAL ATTITUDES TOWARDS MODESTYA key tip to remember when treating any patient, especially a patient of faith, is to respect the patient’s modesty. Knock before entering a room and wait for verbal confirmation to enter.

If you are a male doctor treating a Muslim female, offer to have her husband present or a female staff member. If a hospital gown is required for examination, provide one that is long, secures completely in both front and back, and has long sleeves. If this cannot be provided, offer for the patient to use his or her own gown. It is also a sign of respect to limit direct eye contact and to not touch the person while speaking and never without cause and explanation.

CONCLUSIONCultural competency in health care practice should not be viewed as an inconvenience or added effort to an already busy practice. Small, specific actions can be applied to every patient, to show your understanding and sensitivity to patients of different cultures. Ensuring that your patient’s individual cultural or religious beliefs are respected and valued will go a long way toward building trust. Greater trust and communication have demonstrated better health outcomes, diagnoses, and patient compliance to treatment—all of which will reduce possible exposure to risk.

ADDITIONAL RESOURCESRead more about cultural competency at the following websites:

• National Center for Cultural Competence: http://nccc.georgetown.edu

• Religious Beliefs and Healthcare Decisions: http://www.advocatehealth.com/beliefs

• U.S. Department of Health & Human Services, A Physician’s Practical Guide to Culturally Competent Care: https://cccm.thinkculturalhealth.hhs.gov

SOURCES1. Colby, Sandra L. and Ortman, Jennifer M., Projections of the Size

and Composition of the U.S. Population: 2014 to 2060. United States Census Bureau. U.S. Department of Commerce. Issued March 2015. Available at http://www.census.gov/content/dam/Census/library/publications/2015/demo/p25-1143.pdf. Accessed July 19, 2016.

2. Betancourt, Joseph R., et al. Cultural Competence in Health Care: Emerging Frameworks and Practical Approaches. The Commonwealth Fund. October 2002. Available at

http://www.commonwealthfund.org/usr_doc/betancourt_culturalcompetence_576.pdf. Accessed August 2, 2016.

3. U.S. Department of Health and Human Services. Health Resources and Services Administration, Bureau of Health Professions. Definitions of Cultural Competence. Curricula Enhancement Module Series. National Center for Cultural Competence, Center for Child and Human Development, Georgetown University. Available at http://www.nccccurricula.info/culturalcompetence.html. Accessed August 2, 20016.

4. Cultural Competence Education. Association of American Medical Colleges. Available at https://www.aamc.org/download/54338/data/. Accessed July 18, 2016.

5. Cultural Respect. National Institutes of Health, U.S. Department of Health & Human Services. Available at https://www.nih.gov/institutes-nih/nih-office-director/office-communications-public-liaison/clear-communication/cultural-respect. Accessed July 19, 2016.

6. National CLAS Standards. Office of Minority Health, U.S. Department of Health and Human Service. Updated June 17, 2016. Available at: http://minorityhealth.hhs.gov/omh/browse.aspx?lvl=2&lvlid=53. Accessed July 19, 2016.

7. Treating and accommodating patients under the Americans with Disabilities Act, part one. The Reporter, TMLT, 2016. Available at http://resources.tmlt.org.s3.amazonaws.com/PDFs/Reporter/2016_Quarter_2.pdf. Accessed July 19, 2016.

8. National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care: A Blueprint for Advancing and Sustaining CLAS Policy and Practice. Office of Minority Health, U.S. Department of Health & Human Services. April 2013. Available at https://www.thinkculturalhealth.hhs.gov/pdfs/EnhancedCLASStandardsBlueprint.pdf. Accessed July 19, 2016.

Wayne Wenske can be contacted at wayne-wenske@tmlt.org.

Cassidy Penn can be contacted at cassidy-penn@tmlt.org

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TREATING AND ACCOMMODATING PATIENTS UNDER THE AMERICANS WITH DISABILITIES ACT, PART TWO

CME

By Wayne Wenske, Communications Coordinator

Part one of this ADA article is available at https://www.tmlt.org/tmlt/tmlt-resources/newscenter/the-reporter/2016-Reporter.html, or as a CME on TMLT’s online CME website at https://tmlt.inreachce.com.

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CME

TREATING AND ACCOMMODATING PATIENTS UNDER THE AMERICANS WITH DISABILITIES ACT, PART TWO

Upon completion of this course, the physician will be able to:1. describe some of the unique

responsibilities of physicians when treating disabled patients under the ADA;

2. summarize the requirements associated with providing an interpreter when treating hearing impaired patients;

3. discuss the concept of discrimination against patients with HIV and provide examples of ADA violations when treating these patients; and

4. list strategies for providing a primary care setting that addresses the comfort, safety, and self-esteem of obese patients.

COURSE AUTHORWayne Wenske is a communications coordinator at Texas Medical Liability Trust (TMLT).

DISCLOSUREWayne Wenske has no commercial affiliations/interests to disclose related to this activity. TMLT staff, planners, and reviewers have no commercial affiliations/interests to disclose related to this activity.

TARGET AUDIENCEThis 1-hour activity is intended for physicians of all specialties who are interested in practical ways to reduce the potential for medical liability.

CME CREDIT STATEMENTPhysicians are required to complete and pass a test following a CME activity in order to earn CME credit. A passing score of 70% or better earns the physician 1 CME credit.

TMLT is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians. TMLT designates this enduring material for a maximum of 1 AMA PRA Category 1 Credit.™ Physicians should claim only the credit commensurate with the extent of their participation in the activity.

PRICINGThe following fee will be charged when accessing this CME course online at http://tmlt.inreachce.com.

Policyholders: $10 Non-policyholders: $75

ETHICS CREDIT STATEMENTThis course has been designated by TMLT for 1 credit in medical ethics and/or professional responsibility.

INSTRUCTIONSthe Reporter CME test and evaluation forms must be completed online. After reading the article, go to http://tmlt.inreachce.com. Log in using your myTMLT account information to take the course. Follow the online instructions to complete the forms and download your certificate. To create a myTMLT account, please follow the on-screen instructions.

Questions about the CME course? Please call TMLT Risk Management at 800-580-8658.

ESTIMATED TIME TO COMPLETE ACTIVITYIt should take approximately 1 hour to read this article and complete the questions and evaluation form.

RELEASE/REVIEW DATEThis activity is released on August 15, 2016, and will expire on August 15, 2019.

Please note that this CME activity does not meet TMLT’s discount criteria. Physicians completing this CME activity will not receive a premium discount.

The intention of the Americans with Disabilities Act (ADA) is to provide equal protection for people with disabilities in regard to employment, housing, federal funding, and access to services, such as health care. Part one of this CME activity provided a brief history of the ADA, along with the criteria used by the ADA to define a disabled person. Part one also described what is legally required by the ADA of physicians and hospitals in treating these patients.

Part two of this CME activity provides a series of frequently asked questions regarding the care and treatment of disabled patients, and provides sections on accommodating hearing-impaired patients, obese patients, and patients with HIV.

TREATING DISABLED PATIENTS: FREQUENTLY ASKED QUESTIONSWhile ADA requirements describe how to deliver treatment to disabled patients, no two patients are the same. It can be difficult to adhere to the ADA for all patients, in all circumstances. The following “frequently asked questions” are designed to help physicians navigate the ADA rules. 1, 2, 3

What is the best way to choose a reasonable accommodation?“Reasonable accommodation” refers to the principles of Title III of the ADA that require a medical care professional

OBJECTIVES

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CME

to create an environment that provides full and equal access to health care services and facilities by:

1. removing physical or architectural barriers in offices and buildings;

2. making auxiliary aids and services available; and 3. modifying policies, practices, or procedures.

These modifications must be made unless the provider can demonstrate that making the modifications would fundamentally alter the nature of the services rendered.

Open communication with your patients will ultimately help you make the best ADA compliance decisions for your office or practice. Consult with your patients on what compliance options would work best for them, whether it be retaining an interpreter, installing an accessible exam table, or allowing patients to bring a guide dog to their appointment. Be willing to make concessions and to negotiate what makes sense for your office. It is your decision, ultimately, to determine what compliance options you adopt.

For example, a physician is not required by the ADA to acquiesce to a hearing-impaired patient’s demand for a live interpreter for each and every patient visit. Instead, a physician may agree to have a live interpreter present for the first visit, but use written notes during follow-up visits if that will achieve the necessary communication for the patient’s care. See the sidebar on accommodating hearing-impaired patients.

Is it OK to examine a patient who uses a wheelchair in the wheelchair, because the patient cannot get onto the exam table independently?Generally no. What is important is that a person with a disability receives equal medical services to those

received by a person without a disability. Examining a patient in their wheelchair usually is less thorough than on the exam table, and does not provide the patient equal medical services. There are several ways to make the exam table accessible to a person using a wheelchair. A good option is to have a table that adjusts down to the level of a wheelchair, approximately 17-19 inches from the floor. If the examination does not require that a person lie down (for example, an examination of the face), then the exam table is not important to the medical care and the patient may remain seated.

Can I tell a patient that I cannot treat him or her because I don’t have accessible medical equipment?Generally no. You cannot deny service to a patient whom you would otherwise serve because he or she has a disability. You must examine the patient as you would any other patient. To do so, you may need to provide an accessible exam table, an accessible stretcher or gurney, or a patient lift, or have enough trained staff available to assist the patient to transfer. You may also plan to meet the patient at a facility or hospital where you have privileges. You may also treat the patient at the patient’s home.

Is it OK to tell a patient who has a disability to bring along someone who can help at the exam?No. A patient may choose to bring along a friend or family member to the appointment. However, a patient with a disability may come to an appointment alone, just like any patient. The provider must provide reasonable assistance to enable the individual to receive medical care.

Assistance may include helping the patient to undress and dress, get on and off the exam table, and be positioned on the exam table or other equipment. Once on the exam table, some patients may need a staff person to stay with them to help maintain balance and positioning. The provider should ask the patient if he or she needs any assistance and, if so, what is the best way to help.

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If the patient does bring an assistant or a family member, do I talk to the patient or the companion? Should the companion remain in the room while I examine the patient and while discussing the medical problem or results?You should always address the patient directly, not the companion, as you would with any other patient. Just because the patient has a disability does not mean that he or she cannot speak for him or herself or understand the exam results. It is up to the patient to decide whether a companion remains in the room during your exam or discussion. The patient may have brought a companion to assist in getting to the exam, but would prefer to ask the companion to leave the room before a substantive discussion with the physician. Before beginning your examination or discussion, ask the patient if he or she wishes the companion to remain in the room.

If I’m treating a deaf patient, may I use the patient’s family member as an interpreter?Using family members as qualified interpreters entails a legal

risk because a family member may lack impartiality. This could result in the family interpreter not sharing important or personal facts with either the patient or back to the physician. The federal government has imposed restrictions upon using “a family member, companion, case manager, advocate or friend” as an interpreter. In addition, impartiality is necessary for an interpreter to be considered “qualified.”

Are individuals other than patients also protected by the ADA?Yes, a physician’s obligations under the ADA may apply to non-patients, such as a patient’s parent, guardian, or caretaker. For example, if you must gain consent for surgery on a minor from a blind parent, the consent form must be communicated effectively to the blind parent.

Can I decide not to treat a patient with a disability because it takes me longer to examine them, and insurance won’t reimburse me for the additional time?No, you may not refuse to treat a patient who has a disability just because the exam might take more time.

When it comes to treating patients with disabilities, some of the most frequent questions and misconceptions are related to providing services to hearing-impaired patients.

According to Demaya Diego, JD, a human resources educator and director of technical assistance for the Southwest ADA Center, one of the biggest misconceptions held by physicians is that they are not obligated to cover the costs associated with sign language interpreters when examining hearing-impaired patients. Diego reported that the most common question he hears from physicians is, “Do I have to pay for a sign language interpreter?” The answer is “Yes.”

“My experience indicates that they misunderstand that the financial costs associated with accommodations, auxiliary aids or services, or program modification are their responsibility,” stated Diego. “The Department of Justice (DOJ) describes this obligation as a matter of expenses relating to the overall cost of doing business, whether referring to a private practice or a large hospital. In other words, the ADA does not exempt compliance based on whether a budget was set aside to cover ADA-related accommodation costs. Any ADA-related expenses should be treated as part of the overall cost of doing business.”

However, physicians should be aware that an interpreter is not always necessary. Diego offered that physicians can “fail to realize that an interpreter is not always required, such as when a patient goes to have blood work done or during a simple follow-up visit. In these instances they can easily communicate using a note pad or a computer screen.” But Diego is quick to remind doctors “they risk extreme liability if a deaf patient misunderstands a course of treatment or how to properly take a medication because a sign language interpreter was not made available. Indeed, many deaf

individuals know English as a second language and rely on sign language as their primary mode of communication. Many people also fail to realize that lip reading for most experienced deaf individuals is only about 15 percent accurate.”

According to the Texas Medical Association, it is up to the physician to choose the appropriate accommodation for a disabled patient. Further, if a hearing-impaired patient needs an interpreter, the physician may choose the interpreter. “A physician need not accept and pay for the services of a sign language interpreter who is unilaterally retained by the family of a deaf patient, when the doctor has not had an opportunity to make his own arrangements.”

The DOJ provides the following example: “A patient who is deaf brings his own sign language interpreter for an office visit without prior consultation and bills the physician for the cost of the interpreter. The physician is not obligated to comply with the unilateral determination by the patient that an interpreter is necessary. The physician must be given an opportunity to consult with the patient and make an independent assessment of what type of auxiliary aid, if any, is necessary.”

There will be circumstances where a physician will need to convey complex information to a hearing-impaired patient. A qualified interpreter will be necessary to ensure effective communication. In this case, the physician must provide and pay for a qualified interpreter. According to the DOJ, a qualified interpreter is “able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially.”1

ACCOMMODATING HEARING-IMPAIRED PATIENTS

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CME

HIV/AIDS is a complicated and insidious disease. As the infection breaks down the patient’s immune system, the patient becomes open to any number of opportunistic infections and conditions. Many of these infections may result in the patient having an illness or complication that may require the full range of ADA accommodations – removing architectural barriers, providing auxiliary aids and services, and modifying policies, practices, and procedures.

Because patients with HIV or AIDS may present with varying symptoms and possible conditions, care for these patients will be highly individual. For instance, some patients with HIV will have visual or hearing impairments from different infections. Auxiliary aids and services may be required for these patients, such as sign language interpreters or materials in Braille. The type of auxiliary aid or service you decide to use should be in relation to the complexity, importance, or length of the communication.

Because of lingering fear and stigma attached to HIV/AIDS, some questions remain about what constitutes a violation when treating and accommodating patients with HIV. But all caregivers should note that HIV infection and AIDS are included in the list of disabilities by the ADA, and patients with HIV/AIDS should be afforded the same rights to treatment and access as any other disabled patient.

Here are some of the frequently asked questions and answers regarding HIV/AIDS, supplied by the ADA.4

• Are health care providers required to treat all persons with HIV or AIDS, regardless of whether the treatment being sought is within the provider’s area of expertise? No. A health care provider is not required to treat a person who is seeking or requires treatment or services outside the provider’s area of expertise. However, a health care provider cannot refer a patient with HIV or AIDS to another provider simply because the patient has HIV or AIDS. The referral must be based on the fact that the treatment the patient is seeking is outside the expertise of the provider, not the patient’s HIV status alone.

• Can a public accommodation exclude a person with HIV or AIDS because that person allegedly poses a direct threat to the health and safety of others? In almost every instance, the answer to this question is no. Persons with HIV or AIDS will rarely, if ever, pose a direct threat in the public accommodations context.

A public accommodation may exclude an individual with a disability from participation in an activity if that individual’s participation would result in a direct threat to the health or safety of others. “Direct threat,” however, is defined as

a “significant risk to the health or safety of others” that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures, or by the provision of appropriate auxiliary aids or services.

The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual. The individual assessment must be based on reasonable judgment that relies on current medical evidence.

• What constitutes discrimination?Discrimination is the failure to give a person with a disability the equal opportunity to use or enjoy the public accommodation’s goods, services, or facilities. Examples of ADA violations would include the following:

• A patient with HIV goes to a dentist for teeth cleaning. The dentist refers her to another dentist because the dentist claims he is “not equipped” to treat persons with HIV. Since there is not special equipment necessary for providing routine dental care to those with HIV or AIDS beyond universal precautions (gloves, mask, and goggles), this action is a violation of the ADA.

• A patient with HIV suffers an atrial fibrillation episode and goes to the nearest emergency department. The hospital refers the patient to another hospital that allegedly has an “AIDS unit.” This is a violation of the ADA.

• A patient with HIV goes to a gynecologist but is refused treatment. This would be a violation of the ADA. Health care providers are required to treat all persons as if they have HIV or other blood-borne pathogens, and must use universal precautions (gloves, mask, and/or gown where appropriate, etc.) to protect themselves from the transmission of infectious diseases. Failure to treat a person who discloses that he or she has HIV out of fear of contracting HIV would be a violation of the ADA, because as long as the physician utilizes universal precautions, it is generally safe to treat persons with HIV or AIDS.4

ACCOMMODATING PATIENTS WITH HIV

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CMESome examinations take longer than others, for all sorts of reasons, in the normal course of a practice day.

What if the disabled person is a direct threat to other patients?If a physician determines that a disabled person represents a direct threat to the health and safety of others, the physician may decide not to treat that person. That determination must be based on an individual assessment of the patient that relies on current medical knowledge or objective evidence, and concludes that the risk could not be mitigated through reasonable accommodation guidelines.

I have an accessible exam table, but if it is in use when a patient with a disability comes in for an appointment, is it OK to make the patient wait for the room to open up, or else use an exam table that is not accessible?Generally, a patient with a disability should not wait longer than other patients because they are waiting for a particular exam table. If the patient with a disability has made an appointment in advance, the staff should reserve the room with the accessible exam table for that patient’s appointment. The receptionist can ask each individual who calls for an appointment if the individual will need any assistance at the examination because of a disability. This way, the medical professional can be prepared to provide the appropriate assistance. Note the patient’s disability and needs in the patient’s chart for future visits. Consider acquiring additional accessible exam tables if reserving the room for disabled patients becomes difficult.

In a doctor’s office or clinic with multiple exam rooms, must every examination room have an accessible exam table and sufficient clear floor space next to the exam table?Probably not. The number of accessible exam tables needed by the medical care professional depends on the size of the practice, the patient population, and other factors. One accessible exam table may be sufficient in a small doctor’s practice, while more will likely be necessary in a larger clinic.

What do I do if I’m unsure how to examine a patient with a condition I’m unfamiliar with – such as paralysis or spasticity?When preparing to assist a patient with a disability, it is always best to ask the patient if assistance is needed and if so, what is the best way to help. If you are unsure how to assist, it is absolutely okay to ask the patient what works best.

If I lease my medical office space, am I responsible for making sure the examination room, waiting room, and bathrooms are accessible?Yes. Any private entity that owns, leases or leases to, or operates a place of public accommodation is responsible for complying with Title III of the ADA. Both tenants and landlords are equally responsible for complying with the ADA. However, your lease with the landlord may specify that, as between the parties, the landlord is responsible for

some or all of the accessibility requirements of the space. Frequently, the tenant is made responsible for the space it uses and controls (e.g., the examination rooms and reception area), while the landlord is responsible for common space, such as bathrooms used by more than one tenant.

Am I required to provide and absorb the cost of an interpreter for patients who don’t speak English?These patients are not considered disabled under the ADA. However, according to the Office for Civil Rights, an entity receiving federal reimbursement (such as Medicaid or Medicare) is responsible for ensuring that effective oral and written communication occurs with program beneficiaries who are limited English proficient (LEP). The entity can take several steps to meet its obligations to LEP patients. Providing interpreters, at no cost to the client, is one method. Please visit the Office for Civil Right’s website for more information: http://www.hhs.gov/ocr/. What is my responsibility as an employer under the ADA?Employers with 15 or more employees must comply with the ADA in their employment practices. The ADA protects individuals with disabilities or those perceived to have a disability from discrimination related to employment practices. Individuals with disabilities, real or perceived, who meet “the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job” are protected.1, 2, 3

Another essential responsibility as an employer is to ensure that your staff members are fully trained on ADA requirements and what makes up “reasonable accommodation.” It is a good practice to create written policies and procedures for your office that include such topics as scheduling appointments (with attention to patient needs such as accessible beds); service animals; providing interpreters; and making the office space as accessible as possible. Require your employees to keep you apprised of any requests made by disabled patients. Remember that you are liable for the actions of your staff. If they are not fully prepared to handle requests for accommodation or to treat disabled patients appropriately, you may be held accountable.

Training resources are found on the ADA National Network website at www.adata.org.

CONCLUSION The intention of the ADA is to provide equal protection for people with disabilities when it comes to employment, housing, federal funding, and access to services, such as health care. The breadth of the ADA’s definition of disability and the resulting requirements can be daunting. Ultimately,

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ACCOMMODATING OBESE PATIENTS

CME CME

Currently, the ADA does not recognize obesity as a disability. However, the ADA was amended with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which sought to expand the definition of the term “disability.” In addition, the Equal Employment Opportunity Commission (EEOC) expanded their own definition of disability and determined that “severe” obesity was clearly an impairment. These developments have made it easier for obese individuals seeking protection to establish disability claims.

The increase in adult obesityAccording to Gallop, the obesity rate for adults in the United States climbed to a new high in 2015—28 percent, representing 6.1 million U.S. adults. In addition to the 28 percent who are obese, another 35.6 percent are classified as overweight. Only 34.6 percent of U.S. adults are classified as normal weight.5

Clearly, obesity (and accompanying conditions such as hypertension, type-2 diabetes, and cardiovascular disease) has become an important clinical problem. However, several sources cite that obese patients are less likely to seek health services because they feel stigmatized, disrespected, and embarrassed in health care settings. Some patients avoid their physician’s office because of fears of being weighed, judged, or insulted. These feelings can often lead to depression, anxiety, and even suicide. Fortunately, there are several steps health care professionals can take to ensure these patients receive supportive, quality care.6

Overcoming a cultural biasWhether or not an obese patient has had a bad experience in your office, it is likely that these patients have experienced negative interactions with other providers. Unfortunately, obese people routinely experience bias from others through negative attitudes that obesity somehow represents laziness, lack of self-discipline, lack of intelligence, and overindulgence. These biases affect personal interactions through poor word choice, disapproving language or looks, and an overall lack of empathy. This type of bias could affect the quality of care given by providers to obese patients.

Probably the greatest weapon against this type of bias is self knowledge. Is it possible to have this type of bias without even realizing it? Increasing self awareness is an important step in understanding and reducing weight bias. Ask yourself the following questions to help you identify any potential biases you may have:

• Do I make assumptions about a person’s character, intelligence, professional success, health status, or lifestyle based on his or her weight?

• Am I comfortable working with (or treating) people of all shapes and sizes?

• Am I sensitive to the concerns and needs of obese patients?7

The Rudd Center for Food Policy and Obesity at Yale University provides the following strategies for health care providers to help reduce bias:

• Recognize that obesity is a complex etiology with multiple contributors, including genetics, biology, sociocultural influences, the environment, and individual behavior.

• Recognize that many obese patients have repeatedly tried to lose weight.

• Consider that patients may have had negative experiences with health care professionals, and approach patients with sensitivity and empathy.

• Explore all causes of presenting problems, in addition to body weight.

• Emphasize the importance of behavior changes rather than just weight.

• Acknowledge the difficulty for anyone to achieve and sustain significant weight loss.

• Recognize that small weight losses can result in meaningful health gains.8

Treating obese patients The respectful, sensitive treatment of obese patients begins with providing a primary care setting that addresses their comfort, safety, and self-esteem. Make every effort to approach discussions about weight in a sensitive manner. Try to adopt more sensitive language regarding weight. Some research has shown that there are specific terms that obese patients respond more favorably to when describing body weight. For example, these patients often prefer words like “excess weight” or “body mass index” as opposed to “obese” or “weight problem.”

Create a positive, open, and comfortable office space• Provide an adequate number of sturdy‚ armless chairs and

high‚ firm sofas in waiting rooms. (These will also benefit older patients who may have difficulty with mobility.)

• Provide sturdy, wide exam tables, preferably bolted to the floor to prevent tipping.

• Provide a sturdy stool or step with handles to help patients climb onto the exam table.

• Provide extra-large patient gowns.• In the restrooms, install high, easy-rise toilets and provide

adequate space surrounding the toilets. Also provide a split toilet seat, a specimen collector with a handle, and personal hygiene materials (such as moist towelettes) for easy cleaning.

• Install handrails next to toilets.

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what will help guide you to adhere to the ADA requirements will be your patients. Maintain open communications with them, solicit their feedback, and learn from them regarding their experience of your practice. Their guidance can be an invaluable tool to help you make the right decisions in creating a fair, accessible, and safe health care environment.

SOURCES:1. Texas Medical Association. Americans with Disabilities Act and the

hearing impaired. TMA Office of the General Counsel. March 2008. 2. Access to Medical Care for Individuals with Mobility Disabilities.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section. U.S. Department of Health and Human Services, Office of Civil Rights. July 2010. Available at http://www.ada.gov/medcare_mobility_ta/medcare_ta.htm#part2. Accessed April 25, 2016.

3. Texas Medical Liability Trust. Risk Management FAQs. Available at http://www.tmlt.org/tmlt/tmlt-resources/faqs/risk-management-faqs.html. Accessed April 25, 2016.

4. Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. U.S. Department of Justice, Civil Rights Division, Disability Rights Section. Available at http://www.ada.gov/aids/ada_q&a_aids.htm. Accessed April 25, 2016.

5. Witters, Dan “U.S. obesity rate climbs to record high in 2015.” Gallup, February 12, 2016. Available at http://www.gallup.com/poll/189182/obesity-rate-climbs-record-high-2015.aspx. Accessed July 25, 2016

6. Puhl, Rebecca; Treating obese patients: the importance of improving provider-patient interaction. Medscape. May 27, 2010. Available at http://www.medscape.com/viewarticle/722041#vp_1. Accessed July 25, 2016.

7. Obesity, bias, and stigmatization. Obesity Society. Available at http://www.obesity.org/obesity/resources/facts-about-obesity/bias-stigmatization. Accessed July 25, 2016.

8. Preventing weight bias. Increasing self-awareness of weight bias. The Rudd Center for Food Policy and Obesity, Yale University. Available at http://biastoolkit.uconnruddcenter.org/toolkit/Module-1/1-01-BecomingSensitive.pdf. Accessed July 25, 2016.

9. Medical care for patients with obesity. National Institute of Diabetes and Digestive and Kidney Diseases. Available at https://www.niddk.nih.gov/health-information/health-topics/weight-control/medical/Pages/medical-care-for-patients-with-obesity.aspx. Accessed July 25, 2016.

10. Ahmed, Syed M. et al. Toward sensitive treatment of obese patients. American Academy of Family Physicians. Available at http://www.aafp.org/fpm/2002/0100/p25.html. Accessed July 25, 2016.

Wayne Wenske can be contacted at wayne-wenske@tmlt.org.

Have suitable equipment and supplies on hand to improve patient access to care.

• Use large adult blood pressure cuffs or thigh cuffs on patients with an upper-arm circumference greater than 34 cm.

• Use extra long phlebotomy needles and tourniquets.• Have large vaginal specula available.• Have a weight scale with the capacity to measure

patients who weigh more than 400 pounds. Position the scale in a discrete, private location.

Weighing a patient• Weigh patients in a private area. • Record weight without comments.• If weight is related to the patient’s medical

condition, ask if they wish to discuss their weight.

Encourage healthy behaviors• Ask your patients if they would like to talk about

weight loss. If so, discuss realistic goals. For example, let them know that a weight loss of 5 to 7 percent of body weight may lower their chance of developing diabetes.

• Support your patients to improve cardiovascular health through easy physical activity. Start with simple goals such as walking for 10 minutes‚ three times a day. Once they achieve this goal‚ they can build on it.

• Offer your patients information and referrals to registered dietitians‚ other health providers‚ weight management programs, and support groups, as appropriate

• Promote self-acceptance and encourage patients to lead full and active lives.9, 10

CME

14 the Reporter | Q3

CLOSED CLAIM STUDY 1

UNNECESSARY SURGERY

By Wayne Wenske, Communications Coordinator, andLouise Walling, Senior Risk Management Representative

PRESENTATIONOn August 22, 2005, a 55-year-old man came to Orthopedic Surgeon A with complaints of back pain and bilateral leg numbness and weakness. The patient, a commercial airline pilot, had a history of chronic lower back pain, and an L5-S1 fusion surgery in 1992.

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CLOSED CLAIM STUDYPHYSICIAN ACTIONOrthopedic Surgeon A examined the patient and noted reduced range of motion, positive straight-leg raise test, left leg weakness, and a decrease in reflexes. The surgeon reviewed a lumbar MRI that was taken a week before on August 15, 2005. The radiologist’s interpretation was essentially normal with only mild degenerative changes noted at L3-L4 and L4-L5. The surgeon disagreed with the radiology report and believed that the MRI showed evidence of spinal stenosis at L3-L4 and thecal sac and nerve root compression. The surgeon recommended the patient to a pain management specialist for a lumbar epidural steroid injection (ESI) and documented that he advised surgery if the injection did not improve symptoms.

On September 2, 2005, the pain management specialist performed an ESI. Before the procedure, the specialist examined the patient and documented that the patient exhibited a negative straight-leg raise test with no leg numbness. These exam findings were in contrast to Orthopedic Surgeon A’s documented exam of the patient. The ESI resulted in temporary improvement of the patient’s symptoms.

On September 19, 2005, the patient returned to Orthopedic Surgeon A for follow up. The patient reported continued significant lower back pain and bilateral leg symptoms, which made it difficult for him to work as a pilot or to drive a car.

The surgeon recommended decompression and instrumented fusion surgery from L3 to L5. During this visit, anterior-posterior (AP) and lateral spine x-rays were taken. The surgeon documented that he discussed the surgery with the patient and that the patient understood that after surgery it would not be “medically advisable” for him to return to his work as a pilot. The patient expressed that he wanted to proceed with the surgery.

On October 3, 2005, Orthopedic Surgeon A performed the planned surgery, decompression and instrumented fusion from L3 to L5. During surgery, Theken pedicle screws were placed at L3, L4, and L5. Electrophysiological monitoring was used to prevent inadvertent nerve injury. Autologous bone and demineralized bone matrix were used for the fusion and the surgery was completed without complication. The surgeon documented that he found “profound” stenosis at each level. The patient was discharged three days later.

The patient returned to the surgeon on October 17. During this visit, the patient complained of significant back pain. The surgeon found some redness of the inferior portion of the surgical incision, which he felt was a reaction to the surgical staples, which were removed that day. An antibiotic (cephalexin), pain medication (acetaminophen and hydrocodone), and muscle relaxant (carisoprodol) were prescribed.

On October 21, the patient returned again to the surgeon for a wound check. The surgeon documented that the patient was doing “extremely well.” On this day, he also wrote that he determined the patient would be unable to return to work for the next three months; he recommended the patient apply for short-term disability.

The patient returned to the pain management specialist on October 24 with complaints of significant lower back pain extending into the hips, in contrast to Orthopedic Surgeon A’s records that the patient was doing well. The specialist prescribed additional pain medications— acetaminophen and hydrocodone, carisoprodol, and oxycodone. Home health and physical therapy were ordered.

The patient returned to Orthopedic Surgeon A on November 3. At this time he was using a walker. The surgeon examined the patient and documented that he would require long-term disability, as his back condition prevented him from performing activities (lifting, bending, and twisting) required by his job as a pilot. He also documented that the patient was doing well with negative straight-leg raising and normal leg strength.

The first postoperative x-rays were taken on November 17, and the surgeon documented that the implants were in excellent position without evidence of failure or loosening. X-rays were taken again on July 9 and November 2, 2006. These films also showed that the fusion was intact.

Orthopedic Surgeon A saw the patient for the last time on March 15, 2007. Since his previous appointment in November, the patient had gone to the hospital emergency department twice with significant back pain. The surgeon took x-rays again and noted that the hardware was in good position. A physical exam was documented as “unremarkable,” but there was a decrease in range of motion and some lower back tenderness. The patient also reported significant pain.

In July 2007, the patient consulted with a different physician, Orthopedic Surgeon B. X-rays showed a failed fusion with fractured hardware. Orthopedic Surgeon B recommended surgery to repair the failed earlier surgery.

Orthopedic Surgeon B performed remedial two-level fusion at L3-L5 surgery on November 6, 2008. The surgeon documented he found an unstable spondylolisthesis with significant spinal stenosis and disc disease causing significant neurologic compression at L3-L4 and L4-L5. He also documented that the right-sided pedicle screws had breached the lateral aspects of the pedicles, as was evidenced on the preoperative CT scan.

CLOSED CLAIM STUDY 1

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CLOSED CLAIM STUDY 1Postoperatively, the patient complained of severe pain and was followed by pain management. Eleven days after surgery, the patient was discharged to a rehabilitation center where he received physical and occupational therapies. He was ultimately discharged in stable condition after one week.

Orthopedic Surgeon B examined the patient on October 2, 2009, and concluded that his surgery was technically a success. However, the patient continued to experience significant pain. Orthopedic Surgeon B concluded the patient’s condition would continue to improve, but would require lifetime pain medication. He also stated that the patient would require one to three physician visits per year; periodic lumbar spine MRI imaging; and a course of physical therapy (24 sessions) every three years. He further suggested that future spine surgery was a probability. He concluded that the patient would probably not be able to return to work.

ALLEGATIONSThe patient filed a lawsuit against Orthopedic Surgeon A. The suit alleged unnecessary surgery. The patient claimed the lumbar MRI taken in 2005, which Orthopedic Surgeon A relied upon, did not show any pathology that warranted surgery. The suit further alleged that Orthopedic Surgeon A failed to diagnose the unsuccessful fusion.

LEGAL IMPLICATIONSTMLT consultants agreed with the radiologist’s initial findings of the 2005 lumbar MRI, which was essentially normal with no radiological evidence of spinal stenosis. An orthopedic surgeon consultant for TMLT also felt that the patient should have undergone more conservative treatment before being considered for surgery.

In addition, the consultants noted several inconsistencies in Orthopedic Surgeon A’s records. His clinical findings were often in contrast to the documented findings of the patient’s other treating physicians. It was further noted that Orthopedic Surgeon A did not attempt to contact the interpreting radiologist who read the 2005 MRI, although he disagreed with the radiologist’s interpretation.

DISPOSITIONThis case was settled on behalf of Orthopedic Surgeon A, who conceded that he failed to diagnose the fractured hardware despite several x-rays taken between July 2006 and March 2007, while the patient was under his care.

Another reason for settling this case was that Orthopedic Surgeon A performed the two-level fusion surgery in 1 hour and 15 minutes. One of TMLT’s orthopedic consultants indicated that this surgery usually takes more than 3 hours to perform. The surgeon also performed 7 other spinal surgeries that day, with the plaintiff’s surgery performed last. There was a concern that these facts would possibly create a negative perception with a jury regarding the patient’s care.

RISK MANAGEMENT CONSIDERATIONSIt may have been prudent for Orthopedic Surgeon A to seek other opinions regarding the surgery and the indications. At minimum, a phone call to the radiologist to discuss the findings could have assisted in this physician’s defense.

Challenges posed for the defendant physician included his documentation. At each of the postoperative visits, the patient reported significant back pain and was exhibiting a progressive decline in his ability to ambulate independently. Orthopedic Surgeon A’s documentation included statements that the patient was doing “extremely well.” Accuracy and consistency within the patient visit encounter note is essential for proper diagnosis and treatment—and can assist in the defense of a medical liability claim. Wayne Wenske can be contacted at wayne-wenske@tmlt.org.

Louise Walling can be reached at louise-walling@tmlt.org.

This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. This study has been modified to protect the privacy of the physicians and the patient.

TMLT Policyholders: $100Non-policyholders: $150

Registration and dinner: 6 pmProgram: 6:30 to 9 pm

Register online 2 or more weeks before the seminar and receive a $10 discount.

OBJECTIVES: At the conclusion of this program, participants will be able to:• Describe why communication is essential in today’s health care environment, and discuss actual cases where communication issues

affected the outcome.• Discuss rapport-building techniques designed to promote effective communication and avoid conflict.• Formulate conflict management strategies to diffuse conflict among patients, physicians, facilities, and health plans.• Recognize how cultural differences and language barriers impact communication.

Enjoy dinner and network with your colleagues while earning 2.5 CME credits, including 1 ethics credit, and a 3% premium discount on your next eligible policy period.

SPEAKER:James Ruffin, PhD teaches conflict resolution and negotiations at Colorado Christian University. He serves as a national trainer, author, and keynote speaker in the health care and medical liability risk management arenas. Dr. Ruffin is the owner of James Ruffin Consulting, a trial and litigation consulting firm in Dallas, Texas.

James Ruffin has no commercial affiliations/interests to disclose related to this seminar. TMLT staff, planners, and reviewers have no commercial affiliations/interests to disclose related to this seminar.

BETTER COMMUNICATION, BETTER MEDICINE:

BUILDING EFFECTIVE RELATIONSHIPS AND MANAGING CONFLICT

NOVEMBER 3 – Dallas (Dallas Renaissance)NOVEMBER 10 – Houston (Marriott at the Texas Medical Center)

NOVEMBER 15 – San Antonio (Marriott Northwest)NOVEMBER 29 – Austin (Austin Renaissance)

REGISTER TODAY FOR TMLT’S 2016 RISK MANAGEMENT FALL SEMINAR SERIES

tmlt.inreachce.com

tmlt.inreachce.com | 800-580-8658 x 5050

18 the Reporter | Q3

CLOSED CLAIM STUDY 2

FAILURE TO MONITOR WARFARIN PRESCRIPTION

By Wayne Wenske, Communications Coordinator, andLouise Walling, Senior Risk Management Representative

PRESENTATIONA 65-year-old man came to his family physician with complaints of left upper thigh/groin pain and intense mid-thigh pain radiating to his left buttock. The patient had a history of hyperlipidemia, bronchitis, sleep apnea, obesity, and smoking. He also had history of right inguinal hernia repair, pulmonary embolism, and deep vein thrombosis (DVT) of the right leg. During his treatment for pulmonary embolism and DVT (three years apart), the patient was placed on warfarin until his internalized normalized ratio (INR) was therapeutic. The physician followed the INR monthly without complications. A work-up for coagulopathy was negative.

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CLOSED CLAIM STUDYPHYSICIAN ACTIONThe physician examined the patient and documented that the patient had no symptoms of palpable abnormalities in the left groin. A blood test revealed a D-dimer at less than 100, ruling out pulmonary embolism. The physician documented that the patient was on rivaroxaban, but the patient’s medication list showed the patient was prescribed warfarin, at a 10mg maintenance dose. There was no record that INR monitoring was currently taking place. At this visit, the physician prescribed additional medications: naproxen, 750mg, and a muscle relaxer.

Two days later, the patient went to an urgent care facility with complaints of increasing pain radiating down to his left leg. The emergency care physician noted diffuse tenderness and swelling in the patient’s left thigh and hip with ecchymosis in his groin. A stat INR was ordered and revealed an extremely high reading of 12.8 (the optimal therapeutic range is 2.0 to 3.0) with an elevated prothrombin time (PT) of 153 (normal range is 11-14). The patient was diagnosed with probable retroperitoneal hemorrhage, secondary to warfarin toxicity.

The patient was admitted to the hospital. His warfarin toxicity was reversed with vitamin K. He was found to have a retroperitoneal hemorrhage in his left iliac fossa that was evacuated percutaneously with immediate pain relief. The patient’s warfarin and naproxen were stopped. Three days later, the patient was discharged on rivaroxaban, 10mg.

The patient continued to see his family physician with complaints of weakness in the left leg. The physician referred the patient to a neurosurgeon after an MRI indicated disc disease. Two EMG studies ordered by the neurosurgeon indicated left femoral nerve neuropathy. The neurosurgeon indicated the patient’s left leg weakness was secondary to femoral nerve neuropathy as a result of damage caused by the retroperitoneal hemorrhage.

ALLEGATIONSThe patient filed a lawsuit against the family physician. The suit alleged that the physician failed to appropriately monitor his INR while prescribing warfarin. This failure led to a retroperitoneal hemorrhage, left femoral nerve neuropathy, and persistent left leg weakness.

LEGAL IMPLICATIONSTMLT consultants agreed that the family physician’s charting was a weakness in this case. The physician did not specifically document that the patient was counseled on the importance of INR monitoring. There was also confusion as to whether the patient was taking warfarin or rivaroxaban, when in fact the patient was taking warfarin

without INR monitoring. Consultants for the plaintiff had similar criticisms.

DISPOSITIONThis case was settled on behalf of the family physician, who conceded that she failed to obtain INR reports. She further prescribed an additional anticoagulant, naproxen, to the patient while he was taking warfarin.

RISK MANAGEMENT CONSIDERATIONSManaging anticoagulation therapy requires thorough patient education, monitoring, and follow up with each of these elements clearly documented. Failure to do so may lead to life threatening clotting or bleeding. Closely tracking patients on anticoagulation therapy may help ensure that no patient “falls through the cracks,” and that patients are monitored in a timely manner. Develop a policy that includes a designated staff member and a tracking method (paper log, computer spread sheet) that can be used when training staff. It is important to keep up with no show appointments and resulting documentation. Educating the patient about the risks and benefits of anticoagulation therapy when deciding whether or not to start therapy is an important discussion and area to document. Educational materials provided to the patient for anticoagulation therapy, such as pamphlets, brochures, or videos, should be included in the medical record. This demonstrates the physician’s effort to assist patient compliance with the treatment plan.

Wayne Wenske can be contacted at wayne-wenske@tmlt.org.

Louise Walling can be reached at louise-walling@tmlt.org.

CLOSED CLAIM STUDY 2

This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This case illustrates how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. This study has been modified to protect the privacy of the physicians and the patient.

Connect with TMLT on social media for important real-time updates and news.

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August 2016To all TMLT policyholders RE: TMLT Trustee nominations and election for the 2017 board year Every year, TMLT policyholders are invited to nominate candidates and vote in the annual election for Successor TMLT Trustees. This process offers every policyholder an opportunity to play a key role in the governance of TMLT. I sincerely hope each of you will participate.

Nine Trustees govern TMLT. The terms of the Trustees are three years, but no Trustee can serve more than nine consecutive years. The terms are staggered, so that different places come up for election every year. This year, three places are up for re-election.

Pursuant to the Trust Instrument and Bylaws, the Trustees have nominated three physicians for these positions. The nominations have been submitted to and approved by the TMA House of Delegates. The nominations are:

1. Place 4 (re-election): Michelle Harden, MD2. Place 5 (re-election): William H. Fleming III, MD3. Place 6 (re-election): John Holcomb, MD

The Trust Instrument and Bylaws also provide that any eligible voting participant may be nominated as follows:

• Any nomination by any eligible voting participant must be in writing and supported in writing with the signatures of at least four other eligible voting participants. All nominees must be qualified to serve under the Trust Instrument and Bylaws.

• Nominations MUST be made for a SPECIFIC Place and designated as a nomination for Place 4, 5, or 6.

• Nominations must be submitted to the Secretary of the Board of Trustees, TMLT, P.O. Box 160140, Austin, Texas 78716-0140. They must be received by TMLT in Austin, Texas no later than Monday, September 26, 2016.

After all the nominees have been determined, ballots and candidate biographical sheets for the election will be sent to eligible participants. Ballots will state the deadline for their return. A candidate for any place up for election must receive a majority vote of those participating in the election for such place. Again, I strongly encourage you to participate and help us select Trustee positions for 2017 in places 4, 5, and 6.

Sincerely,

Robert DonohoePresident & Chief Executive Officer

Pam Holder, MD Chair

Robert D. Donohoe, CPCUPresident and Chief Executive Officer

GOVERNING BOARDOFFICERSGerald “Ray” Callas, MDVice Chairman

William Fleming, III, MDSecretary-Treasurer

BOARD MEMBERSCompton Broders, III, MDMark S. Gonzalez, MDMichelle Harden, MDJohn R. Holcomb, MDRussell Krienke, MDTim West, MD

P.O. Box 160140Austin, TX 78716-0140

512-425-5800800-580-8658fax: 512-328-5637

Rated A (Excellent) by A.M. Best Company

The only medical professional liability insurance provider created and exclusively endorsed by the Texas Medical Association

22 the Reporter | Q3

PLACE 4:Michelle Harden, MDObstetrics-Gynecology, San AntonioTMLT policyholder since 2008

Dr. Harden received a Bachelor of Arts Degree in biochemistry and cell biology, graduating Summa Cum Laude from the University of California at San Diego. She completed her medical training and residency in obstetrics-gynecology at The University of Texas Health Science Center in San Antonio. Dr. Harden has been in private practice in San Antonio since 1992. Dr. Harden has served as an MEC member of Stone Oak Methodist hospital and was involved with startup of the hospital in 2009. She has also served as a medical advisor for Prudential Insurance Company; as a member of the Perinatal Committee at Southwest Texas Methodist Hospital; and as a member of the Quality Assurance Committee at Stone Oak Methodist Hospital. Dr. Harden is a reviewer for the Texas Medical Board and is the Chair of the TMLT Claims Review Committee.

2017 TMLT GOVERNING BOARD ELECTION CANDIDATES

The candidates for this year’s board election are listed below for your consideration. You will receive voting ballots via email in November, and we encourage all TMLT policyholders to vote. As always, thank you for being a loyal TMLT policyholder.

23Q3 | the Reporter

PLACE 5:William H. Fleming III, MDNeurology, HoustonTMLT policyholder since 1999

Dr. Fleming attended medical school at St. Louis University School of Medicine. He completed his internship at the Montreal General Hospital, McGill University, Montreal, Quebec, Canada, and his residency at the Mayo Clinic in Rochester, Minnesota. Dr. Fleming has been a practicing neurologist in Houston since 1979, where he is a partner in the Memorial Neurological Association.

Dr. Fleming is a Past President of the Texas Neurological Society, the Harris County Medical Society, the Houston Academy of Medicine, and Texas Medical Association. He is a TMA delegate to the American Medical Association.

Dr. Fleming served on the Texas State Board of Medical Examiners (Texas Medical Board) from 1990 to 2002. He served as President from 1992 to 1993 and from 1995 to 2001. He is a Past President of the Federation of State Medical Boards and a former member of the National Board of Medical Examiners. Dr. Fleming is on the TMLT Claims Review Committee.

PLACE 6:John Holcomb, MDPulmonology and Critical Care, San AntonioTMLT policyholder since 1992

Dr. Holcomb is a graduate of Texas A&M University, and of Southwestern Medical School in Dallas. He trained in San Francisco and San Antonio, and has served in the U.S. Army in several capacities. He retired from the USAR, where he was Command Surgeon of the 90th ARCOM in San Antonio. His last active duty assignment was as Deputy Commander Clinical Services, Camp Bondsteel, Kosovo, in 2005.

Dr. Holcomb has served the Bexar County Medical Society as President and chaired the TMA Select Committee on Medicaid, CHIP, and Access to Care since its creation. He served as Chief of Staff, and as a senior administrator in a large hospital system in San Antonio, and was a Trustee of the Texas Hospital Association.

Dr. Holcomb was the peer review medical director for a rural hospital consortium of more than 35 facilities from 2006 through 2008, managing more than 1,500 peer review referrals. Dr. Holcomb is on the TMLT Claims Review Committee.

24 the Reporter | Q3

EDITORIAL COMMITTEERobert Donohoe | President and CEOJohn Devin | Senior Vice President, OperationsSue Mills | Senior Vice President, Claim Operations Laura Hale Brockway, ELS | Director, Marketing Communications

EDITORWayne Wenske

ASSOCIATE EDITORLouise Walling

STAFFDiane AdamsTanya BabitchRobin DesrocherStephanie DowningOlga Maystruk Robin RobinsonCassidy PennLesley Viner

DESIGNOlga Maystruk

the Reporter is published by Texas Medical Liability Trust as an information and educational service to TMLT policyholders. The information and opinions in this publication should not be used or referred to as primary legal sources or construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalizations can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor its affiliates are engaged in rendering legal services.

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