Picture this. You’ve decided your advertising campaign needs an extreme makeover. With the aid of your office manager, your IT consultant, and a very successful image expert, you overhaul your outdated website. Your goal is to expand your patient base, an admirable (and necessary) goal. Your team sets about to improve your advertising in order to make your practice as attractive to patients as you possibly can. The first thing is to adopt a slogan. Hmmm…Let’s see. Providing good care is important to you, and certainly important to the patient (good thinking, as attention to patient care and patient safety is the best risk management tool you have). You

choose a slogan which seems to say all you feel about how you want your practice to operate: World Class Care—We Simply Set a Higher Standard!

Great! Says all you want to say in a concise, catchy, memorable way. Unfortunately, in your zeal, you may not recognize that you have just supplied the plaintiff with Exhibit “A” in any malpractice suit subsequently filed against you. And, you may be in trouble with the Mississippi State Board of Medical Licensure.

In preparing for work and interaction with our insured physicians, we often visit their websites prior to a site visit in

their office. Likewise, we pay attention to such everyday, mundane things as letterheads and clinic signage. Usually, all is well, and we are impressed with the extensive patient education and information provided in uniquely innovative ways.

There are times, however, when one of us will exhibit the startle factor common to Risk Managers upon seeing advertising which, for various reasons, increases the physician’s liability exposure and risk in the event of a claim or lawsuit.

Second Quarter 2008

in this issue2

Maples’ Musings4

2008 Orientation Schedule5

2007 Claims Analysis

IS yOur ClInIC AdvertISIng COntrIbutIng tO unreAlIStIC expeCtAtIOnS by yOur pAtIentS?

JoAnn Bienvenu, Director of Risk Management

“Advertisement” or “Advertising” means any form of public communication, such as newspaper, magazine, telephone directory, medical directory, radio, television, direct

mail, billboard, sign, computer, business card, billing statement, letterhead, or any other means by which physicians may communicate with the public or patients.”

Chapter 24, “Physician Advertising” Mississippi State Board of Medical Licensure, Rules and Regulations

Advertising continued on page 6

2

MApleS’ MuSIngSMedICAl ShIft WOrk And the ASSOCIAted rISkS

Given the surveys of new medical students and residents, it is apparent that the vast majority of new doctors value their lifestyle as much as, if not more than, their profession. Now that may be true of older doctors also. I just don’t have the survey. The question before us at MACM is, “Can a physician do a good job working as an assembly line shift worker?” The bigger question, in my estimation, is whether a profession can remain a profession while working eight-hour shifts? More importantly, will a sick patient view you as a professional if you work 40 hours a week for 46 weeks a year?

To address the first question, many doctors do a great job working shifts in the emergency department and as hospitalists (among many other positions). They practice excellent risk management and communicate well with the follow-up physicians. The patients are well cared for and we generally can defend the physicians’ actions in lawsuits. Also, the public seems to understand these shift working physicians. The risks of shift work, however, are directly related to the number of times there is a transfer of care and to the number of personalities involved. Imagine a patient who has seen several different physicians during his hospitalization and a misunderstanding/personality clash occurs with just one of the doctors. If none of these doctors has a

long-term relationship with the patient, it may be very difficult to dissuade a suit in the event of an untoward outcome. The risks to us/you/MACM are directly related to the number of transfers and inversely proportional to the length of time under care of the physician. Obviously, other factors are involved which are not the subject of this article.

Now back to the question of whether one can be a professional and perform shift work. It is my opinion that this will be determined by whether the interests of the doctor are directly and unequivocally aligned with the interests of the patient. Can one work for the hospital or government or insurance company and keep the interests of the patient primary? There are many physicians who accomplish this, but the diligence required is overwhelming.

One thing is certain in MACM’s experience. If the jury perceives that the doctor is not interested in the well- being of the patient and more specifically that the doctor’s well-being is more important than the patient’s (whether true or not), the jury will punish the doctor. It seems to me that they, the jury, are making the judgment that the doctor has not acted professionally.

We should never let this be so.

Michael D. Maples, MD, Medical Director

We in the Risk Management Department are starting to see manufacturers of medical devices and pharmaceutical companies supplying prepared consent forms for their products for physicians to use.

Although at first glance this seems like a great time saving idea, physicians should be wary of using these forms without a critical review of the content. These forms are developed by company attorneys primarily to lessen product liability of the manufacturer/distributor, not necessarily to limit the professional liability of the physician. Usually these are generic forms that do not address

the required elements which constitute informed consent as outlined in Mississippi case law. Some recently reviewed forms contained an abundance of marketing information, but precious little in the way of educating the patient on the risks associated with the device or drug. With the exception of FDA or federally mandated forms, we advise close scrutiny of these forms, making any necessary rewrites in order to address the elements required in Mississippi and to reflect the risks that you know to be clinically relevant. The MACM Risk Management Department has written information and guidelines to assist you, and consultants are available to review drafts for necessary elements.

beWAre Of freebIeS!

3

dO yOu AdMInISter vACCIneS tO ChIldren Or AdultS?

Under the National Childhood Vaccine Injury Act, all providers (public or private) who administer certain vaccines must provide the patient or caregiver with Vaccine Information Statements (VIS) prior to vaccine administration. This federal requirement applies to both children and adults who receive these vaccines, regardless of how the vaccine was purchased. Although VIS must be provided for certain vaccines, and are strongly encouraged for other vaccines, they are also an excellent risk management tool, and are available in 30

languages. We urge you to download available VIS and use them in your informed consent process, even for those that, at this time, are not on the mandated list.

For more information and to download available VIS, go to www.cdc.gov/vaccines/pubs/vis. For information on the National Childhood Vaccines Injury Act, which provides compensation for injuries related to vaccines, go to www.hrsa.gov/vaccinecompensation.

dO yOu reCOgnIZe A nOtICe Of ClAIM When yOu See One?

What is it that you may not know about the Notice of Claim letter? Something which may come back to haunt you?

We refer to the 60-day notice, required by Tort Reform, that a plaintiff must send to the physician prior to filing a lawsuit. In most cases, this letter is generated by the plaintiff’s attorney and easily recognized as a formal Notice of Claim. You may not realize that this Notice of Claim is frequently generated by the patient. Please be alert for the letter from the patient which demands remuneration for a perceived injury or which threatens legal action against the physician or clinic. Do not file this away as correspondence in the patient file. CALL THE MACM CLAIMS DEPARTMENT. Your Claims Representative will provide immediate assistance and direction for the response to claim notification.

the MACM Claims department Wants to know . .

WhAt CAn keep yOur ClInIC Out Of

JeopardY?When you first look at it, a medical clinic seems fairly straight forward. You take care of patients medical needs and deal with medical records and payment issues. But, once you start operating a clinic day-to-day, you may face a variety of situations you never expected to deal with. There are a lot of things to be aware of. For example, what about:

Answer: A non-custodial parent who has not terminated their parental rights.

Question: Who is one of the persons that can give consent to treat a minor under Mississippi Statutes?

Answer: The most important thing to remember is to remain calm.

Question: What is the basic rule staff should know about confronting disruptive people, such as an angry family member or an irate physician?

Come play the game of Jeopardy with us and learn the reasons behind these answers—in the form of a question of course.

For a schedule of the remaining Office Staff Update Meetings and to register for one in your area, please see the MACM website at www.macm.net.

2008 risk Management update for Office Staff

MAndAtOry OrIentAtIOn prOgrAM fOr neW phySICIAnSNew physicians whose policy inception began during the period from August 1, 2007 through December 31, 2007,

have until December 31, 2008 to attend.

neW guIdelIneSeffective JAnuAry 1, 2008New physicians whose policy effective date begins January 1, 2008 or later, have one year from the month of policy inception to complete this requirement, e.g., if policy effective date is March 5, 2008, the new physician must complete the requirement by March 31, 2009.

Failure to attend one of the programs scheduled within your one year time frame will result in a 5 percent premium surcharge or $1000, whichever is greater. Continued failure to attend through the next policy period will result in a 10 percent surcharge or $1000, whichever is greater. If the requirement is not met within the third policy period, the physician will be considered for non-renewal.

To Receive Credit for Attendance, Physicians Must Be Present for Entire Two Hour Program.

CMe CredItMedical Assurance Company of Mississippi is accredited by the Mississippi State Medical Association to provide CME for physicians. MACM takes full responsibility for the content, quality, and scientific integrity of this activity. MACM accepts no commercial support for its CME activities. Medical Assurance Company of Mississippi designates the Risk Management portion of this educational activity for a maximum of 1.0 AMA PRA Category 1 Credit™. Physicians should only claim credit commensurate with the extent of their participation in the activity.

Evening Programs: Registration + refreshments & hors d’oeuvres from 5:30-6:00 pm; Program 6-8 pmLuncheon Program: Registration + lunch from 11:30 am-Noon; Program Noon-2 pm

2008 SCheduleN8-4 August 5, 2008 11:30 am – 2:00 pm Jackson UMMC Student Union

N8-5 August 28, 2008 5:30 pm – 8:00 pm Biloxi Biloxi Regional Medical Center

N8-6 October 21, 2008 5:30 pm – 8:00 pm Jackson Mississippi Baptist Medical Center

N8-7 October 28, 2008 5:30 pm – 8:00 pm Tupelo North Mississippi Medical Center

Clinic Managers are invited to accompany their physicians. Please be sure to register. We strongly encourage new physicians to attend one of our programs at their earliest opportunity.

If you do not receive a fax or e-mail letter from MACM confirming registration within two weeks, please resubmit.

Name:

Physician/Clinic Address:

Phone: Fax: E-mail:

I wish to register for Program Number: Place: Date:

A fax or e-mail reminder will be sent to you approximately two weeks before each program.

Medical Assurance Company of Mississippi Attention: Risk Management Department

404 West Parkway Place Ridgeland, Mississippi 39157

FAX: (601) 605-8849

4

Every month, one of the two Claims Committees review files presented to them from our Claims Department. A physician who belongs to the same specialty as the defendant physician, thoroughly reviews the case and informs the Committee physicians of clinical concerns as well as other issues.

The Risk Management Department also reviews these in order to monitor the risk management issues associated with the cases. This allows our department to concentrate and channel our resources in working with physicians across the state in an effort to curtail as many issues as are possible. Previously, we’ve presented data comparisons (two 5-year periods) that the Risk Management Department trended and will again do this.

Sixty nine (69) cases were reviewed in 2007 and as seen in preceding years, the claimants were female by majority (64 percent) and were approximately 43 years old. Gender and age fluctuate from year to year as one might expect. The principal payment source of the claimants this year remained private insurance at 47 percent which represents a small decrease from prior years. Medicare claimants accounted for 17 percent of the claimants, a small increase from the 1996-2000 analysis of 13 percent. Of interest is that the percentage of Medicaid claimants has varied from 20 percent for the 1996-2000 analysis, 16 percent for the 2001-2005 analysis, and 29 percent for the 2007 analysis.

The issues seen in the cases this year were again categorized by clinical, risk management and other. A trend seen in 2007 when compared to the two five-year comparisons was the decrease of clinical issues (32 percent) that the physician Committee members identified. In the previous years, clinical issues had been 60 percent in the 1996-2000 analysis and 64 percent in the 2000-2005 analysis. Treatment-related concerns were again more prominent (96 percent) than those related to diagnosing the patient (46 percent).

The percentage of cases with risk management issues remained relatively stable at 78 percent. Of those, the more common concerns were medical record documentation (69 percent—an increase from previous years), communication (57 percent—a considerable increase from the 1996-2000 rank of 29 percent), and informed consent (37 percent—a slight decrease from previous years). Failure in physician’s office systems (24 percent) did not differ meaningfully over the past 10 years.

Hospital system failures (44 percent) such as communication breakdowns, incomplete or lost records, and inadequate staff performance were again almost unchanged from previous years. In 2007, other contributing factors were seen in 49 percent of the cases reviewed, which include another provider’s “malpractice”, the patient with a history of mental illness or instability, or a family member working in the health care field. Jousting (making offhanded or ill-informed comments verbally or in writing) dropped from previous years at 20 percent to only 9 percent in 2007.

This is purely an overview of the issues that the Risk Management Department follows and trends, but we believe it gives areas of focus for the consultants to continue to monitor.

Beth Easley, RHIA, Senior Risk Management Consultant

ClAIMS AnAlySIS: hOW Are yOu dOIng?

5

MedICAl ASSurAnCe COMpAny Of MISSISSIppI404 West Parkway PlaceRidgeland, Mississippi 39157

601.605.4882800.325.4172macm.net

Information contained in this publication is obtained from sources considered to be reliable. However, accuracy and completeness cannot be guaranteed. Information herein should not be regarded as legal advice.

The Risk Manager is a publication of Medical Assurance Company of Mississippi.Editor: JoAnn Bienvenu

prSt Stdu.S. pOStAge

pAIdJackson, MS

permit no. 775

6

What are some of the things which elicit this startle factor from the otherwise cool, tranquil (?) Risk Managers? Let me count the ways:

Over the top, best of the best, above the standard •statements.

Incomplete or misleading information regarding •current Board Certification status. This includes using the term “Board Certified” as a general one, i.e., the physician may be board certified, but not in the specialty for which he or she is advertising, or professing board certification even though certification has lapsed.

Advertising oneself as a sub-specialist without •having completed board-approved training.

Advertising your practice as providing a new •treatment modality or procedure which is not FDA approved. Include in this the problems

associated with praising the great results of the treatment while omitting known (or we-don’t-know yet) complications.

Misleading statements like • band-aid surgery or lunchtime face-lift which give the impression that a procedure is no big deal with no risks.

There are other ways that you may, by your advertising, unintentionally cause patients to form unrealistic expectations of your ability to solve their problems or meet their needs. Take a moment to review all aspects of your advertising so that you don’t supply the bigger-than-life-size Exhibit “A” in the event of a claim.

We encourage physicians to review the Mississippi Board of Medical Licensure Rules and Regulations on Physician Advertising which can be downloaded from its website at: http://msbml.state.ms.us.

Advertising continued