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Provider E-Mails — Appearance is Everything
By Mark C. Rogers, Esq.
An experienced well-known medical malpractice defense attorney once gave me a very important piece of advice: in defending a healthcare provider in a medical malpractice action, appearance is everything. Legal counsel play an important role in the appearance of a medical malpractice defendant at trial.
Specifically, through pre-trial preparation, legal counsel will advise a client as to how they dress, where they sit in the courtroom, their facial expressions, and even what kind of car they drive to the courthouse — all of which a member of the jury may see and (like it or not) take into account during jury deliberations.
One of the things that trial counsel cannot affect, which does have a substantial impact upon a provider’s appearance at trial, is the provider’s documentation related to his/her care and treatment of a patient. Consider, for example, the following scene played out in medical malpractice trials throughout the country each day.
A patient’s attorney is questioning a physician on the witness stand about a note the physician wrote in the patient’s medical record several years earlier regarding some aspect of the physician’s care and treatment. In order to assist the jury, the attorney will use a “chalk” or a cardboard blow-up of the note. Through testimony, the note is analyzed for several hours and in some instances, several days, by the parties and their respective experts. A brief entry into the patient’s medical record that is incoherent or includes incomplete phrases may, at the very least, be perceived by the jury as consistent with the actions of a careless physician, and at the worst, evidence of negligence.
What now worries me and other attorneys who represent providers is what the provider said or didn’t say in their e-mail exchange with a patient. Already physician e-mails to patients are becoming a central focus of medical malpractice trials. Although some will argue that e-mails present providers with an excellent opportunity to demonstrate to a jury their appropriate care and treatment of a patient, they can also be seen, in some instances, as evidence of the provider’s failure to clearly communicate with the patient.
Providers who communicate with patients via e-mail need to ensure that such communications are clear and appropriate. A misunderstanding or misinterpretation by the patient or subsequent treating provider can have dire consequences for the patient and in turn for the physician in a subsequent medical malpractice trial.
A provider’s e-mails to a patient can have a significant impact upon their appearance at trial. In particular, a provider’s e-mails have the potential to undermine the provider’s qualifications and overall intelligence in the eyes of a jury. Simply put, the manner in which many people write e-mails as a conscious stream of thought without any consideration for the consequences is not appropriate in terms of a provider’s e-mails to his/her patients. Providers should consider a number of actions when communicating with patients via email or electronic communication:
- Avoid acronyms and abbreviations that may not be understood by patients,
- To the extent possible, write in clear and complete sentences.
- Include a statement at the end of each e-mail that says if the patient does not understand anything within the provider’s e-mail, that he or she should contact the provider immediately.
The critical element to provider-patient e-mails is making sure that the patient understands what the provider is trying to communicate. If a provider believes that a patient will, by reason of the subject matter, not understand an e-mail communication or if it appears to a provider that the patient did not understand the previous e-mail communication, the provider should no longer communicate with the patient via e-mail regarding the subject matter. The provider should attempt to contact the patient via telephone (and should document these efforts).
Physician groups should consider maintaining a policy that addresses e-mail communications with patients. This policy should incorporate the above elements pertaining to patient comprehension of provider e-mails, and should also address such issues as encryption, informed consent, e-mail retention, confidentiality notices and e-mail use restrictions.
Furthermore, it is important to keep in mind that in many instances it may not be the physician who communicates via e-mail with a patient. Oftentimes such communications take place between the patient and a nurse practitioner, nurse, or staff member. Therefore, a provider’s patient e-mail policy should be broad enough to include non-physician staff.
A word of caution: once you issue a policy, it creates a standard. If a physician or any member of his/her staff does not follow that policy, it becomes evidence of negligence, which depending upon the circumstances, may be admissible at trial.
A provider who communicates with a patient via e-mail needs to understand that these e-mails are part of their care and treatment of the patient and, as such, can be seen as clear and convincing evidence of their appropriate, or inappropriate, actions. Appearance is everything.
Mark Rogers is an attorney with The Rogers Law Firm of Braintree, MA.
The Missing Piece: Enterprise Forms Management and the Electronic Health Record
By Chuck Demaree
With all the hype surrounding meaningful use and moving through the stages of the HIMSS Analytics EMR Adoption Model, many facilities overlook the integral role that an integrated forms management and content management approach plays in the successful operation of the EHR. For the sake of clarity, we’ll define a form as a paper-based or electronic tool used to capture and present information (or data) in an organized fashion.
If facilities are going to maximize the effectiveness of their EHR projects, they must understand how forms management can effectively collect information and present it in an organized and user-friendly fashion in their enterprise content management (ECM) system and EHR. An enterprise forms management (EFM) solution needs to provide the features to not only manage and control hospitals’ forms needs, but also provide strong integration of both electronic and paper forms into the EHR. Here are some things to consider as your facility evaluates your forms management strategy, alongside content management options:
- Every form should be bar coded with both the Form ID and Patient Identifiers. This eliminates bar code cover sheets, addresses Positive Patient ID issues, and facilitates automatic indexing into the EHR via the ECM system.
- A forms management system should be able to auto-populate any form or forms packet with patient demographics .
- A workflow engine that is complimentary to ECM functionality can help by interfacing forms data to fax and e-mail systems.
- When bar coded forms print, there should be the capability to send a notification to the EHR so a deficiency or place holder can be created which will be resolved when the form is scanned.
- Electronic signatures (preferably with biometric capture) can be placed on electronic forms via a tablet PC, LCD signature pad, or e-clipboard as part of a paperless registration or bedside consent process consent forms
- At a basic level design, update and routing of paper forms should be in the hands of the hospital, a service of the vendor
- Should provide for database (ODBC) access to populate forms, as this removes effort on the front end.
- Can leverage paper forms-focused functionality to manage printed output and routing to ECM, e-mail or fax.
- Electronic signatures (preferably with biometric capture) can be placed on electronic forms via a tablet PC, LCD signature pad or e-clipboard, as part of a paperless registration or bedside consent process consent forms.
- Need to adhere to HL7 standards for passing information back and forth to an HIS system (often provides the links the the EHR documents in the HIS system).
- Form presentation is important, not only during the data collection process, but also once the document has been moved into the EHR. Often data is “COLD” fed into the EHR from ancillary systems, but the documents remain in the hard-to-use format outputted. If the EFM system can receive these feeds, reformat the presentation into a standard look and feed it directly into the EHR, the data is more user-friendly, reducing hassle for HIM staff. In addition, if a legal health record (LHR) is printed from the EHR via the content management system, it is in a more organized and usable format.
In summary, forms management needs to be evaluated from a data collection and presentation perspective as a gateway to a hybrid record and ultimately a true EHR.
Chuck Demaree is VP of product development at Access of Sulphur Springs, TX.
Preparing for the Geriatric Tsunami of 2030
By Peter Goldstein
A certain geriatric tsunami is heading our way as the over-age 65 senior population doubles to 71.5 million by 2030. Today, our country stands as unprepared and vulnerable as a coastal city with an unprotected shoreline. If we don’t take the necessary steps soon to prepare for the massive demographic realities ahead, our healthcare and long-term care systems simply won’t be able to cope with the overwhelming challenges of caring for the swelling ranks of seniors.
There are some signs of progress. A growing number of experts are embracing the “aging in place” movement as a cost-effective, practical, and inevitable solution that will enable more seniors to live independently, safely, and comfortably in the home setting of their choice within their communities. Independence is also what most Americans want for their old age. In an AARP survey, 89 percent of all American adults said they would prefer to stay in their homes as they age. Not surprisingly, this desire only increases with age: 95 percent of those 75 years and older said they would prefer to remain at home.
Monitoring technologies that can help support seniors’ independent living are finding increasing use across the country. A new study by the National Alliance for Caregiving in collaboration with the AARP found that nearly half of caregivers reported using at least one technology to help care for an aging relative.
However, significant barriers remain. Few resources exist to help family members navigate and coordinate all of the necessary care and support services for their loved ones. The lack of widely available coordinated care in this country is not only a frustrating and bewildering experience for families, but it also threatens seniors’ health, safety and long-term independence.
Clearly, the fragmented healthcare and long-term care industries cannot continue to operate separately; they must converge, aligning coordinated care services, resources, and technology under a unified and integrated environment that will support independent living for millions of the nation’s seniors and enable providers to take care of more patients, more affordably and efficiently.
Vendors must work together to establish new HL7-like standards that facilitate interoperability across disparate technologies used in the home, such as telehealth portals, electronic sensors to prevent falling, and medication adherence monitors, and provide a comprehensive 360-degree view of the patient’s wellbeing.
In addition, new incentives must be put in place to encourage care coordination and sharing of observable and diagnostic health information between the healthcare providers who diagnose illnesses and prescribe medications and the caregivers who assist with daily living activities such as dressing, bathing, and feeding.
An independent old age is the hope of every generation. For Baby Boomers, the growing convergence of the healthcare and long-term care systems, combined with improved technology interoperability, could help move that goal within reach and reinvent what it means to be a senior in a rapidly graying America.
Peter Goldstein is an expert on aging in place and executive vice president of Univita Health of Scottsdale, AZ.