'No written claim' strategy can help avoid harmful reports about doctors to NPDB
'No written claim' strategy can help avoid harmful reports about doctors to NPDB
Plan encourages disclosure, payments average $5,488 per incident
When risk managers encourage full disclosure after an adverse event, one of the most common barriers is the physician's fear of being reported to the National Practitioner Data Bank (NPDB). Some insurers and risk managers are suggesting strategies that reduce that risk by encouraging patients not to file a written claim at all.
One such method is suggested by COPIC Companies, a large physician malpractice insurer based in Denver. Under its 3Rs program, which stands for Recognize, Respond, and Resolve unanticipated medical outcomes, patients can receive certain benefits after an adverse outcome only if they do not file a written claim.
COPIC representatives declined to discuss the program but provided material that describes the purpose of the program as to "assist patients who have experienced an unanticipated medical outcome by facilitating candid, early communication between a physician and a patient, thereby preserving the relationship." If patients agree not to pursue legal action, the program will pay up to $30,000 for out-of-pocket expenses and loss of time.
The patient retains the right to sue, but any lawsuit or written demand for compensation terminates the benefits. The program began on Oct. 1, 2000, and 2,674 physicians were participating as of June 30, 2006. There have been 661 patient reimbursements averaging $5,488 per incident, for a total expenditure of $3,627,508. Nationwide, the NPDB reports that the average payment on a malpractice claim in 2003, the latest year for which statistics are available, was $291,000.
COPIC provides these examples of how incidents were handled:
- Two weeks after an abdominal hysterectomy with bilateral salting-oophorectomy, a patient experienced pain and bulging at the surgical site. A CAT scan confirmed an abscess, which necessitated a trip to the operating room for drainage. The abscess recurred two months later and required more treatment. COPIC facilitated communication between the physician and patient, and there was no lawsuit or written claim. The program reimbursed the patient for copays, anesthesia, medications, and loss of time. The total amount paid to the patient was $6,700.
- The day after a colonoscopy, a patient presented to the emergency department with pain and other symptoms suggesting a complication. A work-up confirmed a colon perforation and volvulus of the cecum that necessitated a hemicolectomy. A COPIC administrator facilitated communication between the patient and physician, and no lawsuit was filed. The insurer reimbursed a total of $5,394 for copays, medications, and the extended recovery period. Both the patient and physician reported satisfaction with the outcome.
Fear can prevent disclosure
Physicians fear being reported to the NPDB with an intensity that may be hard for other medical professionals to understand. A report to the data bank can be a permanent black mark on their career, with both practical ramifications in terms of their practice success and career advancement, but also a heavy emotional toll. For those reasons, physicians can be extremely reluctant to disclose adverse events in the manner that now is considered by most risk managers to be the proper reaction after a patient is harmed. The common reply to the risk manager is, "I want to talk to the patient, but then she'll sue me and I'll be reported to the NPDB."
In many cases, the report to the data bank is feared more than the lawsuit itself. The lawsuit, however, is what can lead to the NPDB report because the written claim against the doctor is one of several triggers that require a notice to the data bank. For that reason, the less traditional approach, such as the COPIC program, can be an option. The idea is that if the doctor and the patient can work out a solution, even a cash settlement, without filing a lawsuit or involving the insurer, everyone can walk away happy and a report to the NPDB is not necessary. It is akin to the common practice after a fender bender, when the driver at fault suggests paying for the damages out of pocket instead of involving his insurer and making a police report.
Generally speaking, a report to the NPDB is required whenever an insurer makes a payment regarding a physician's actions, when a legal claim is filed, or when a hospital or other entity reduces the doctor's privileges or suspends the doctor from the medical staff for more than 30 days. (Editor's note: For more on the NPDB and reporting requirements, see the NPDB web site at www.npdb-hipdb.hrsa.gov.)
Because much of that action stems from the patient filing a claim, the "let's-handle-this-without-lawyers" approach can be an effective strategy, says Jeffrey Segal, MD, founder and president of Medical Justice Services in Greensboro, NC, a membership organization that helps physicians avoid frivolous lawsuits and minimize liability. But he stresses that the reporting requirements for the NPDB are complex and that any effort to avoid a report must be considered carefully. He says physicians are correct to be wary about NPDB reports when risk managers encourage full disclosure.
The correct strategy may depend on whether there is true negligence involved, Segal says. If the doctor knows that he or she made a mistake, the most effective strategy can be to resolve the issue quickly. That may mean offering the patient money right away.
If money is offered up front, that creates the opportunity for avoiding a report to the data bank Segal explains. Reporting is required if there is a written demand, he says. "Once there is a written demand, the rules of the game change," Segal says. "But if you're proactive and beat everyone to the punch, then potentially this is not a reportable event."
The rules regarding reportability are complex, however, so Segal cautions that each instance must be considered carefully.
Respond quickly after event
Early intervention with the patient can be the key, Segal says. Once the patient makes a written demand for compensation or an attorney files a lawsuit, your more benign options disappear. More often than not, patients respond well to a sincere offer to resolve the situation quickly and amicably, Segal says.
"They don't want to go through a long legal process any more than you do," he explains. They respond well if you offer a reasonable reimbursement, even if it's not even close to what they might receive in court, Segal says. "Most people just want to be treated fairly and with some dignity," he says.
James M. Stewart, JD, a partner with the law firm of Stewart & Stimmel in Dallas, advises caution with this strategy. He confirms that the NPDB rules do require a written claim but he says risk managers and physicians must be careful in trying to rely on that argument. "At some point in time, there has to be something in writing and once that writing exists, the question becomes whether it is a written claim for reporting purposes," Stewart explains. "I'm not sure I would be comfortable making a payment and not having some sort of paper back up in the form of a release. I am also not sure I am comfortable arguing that an after-the-fact written release is not a written claim."
Stewart says the "no written claim" strategy may be effective in some cases but will not apply, at least not with any high degree of confidence, to many situations. He suggests the more reliable way to avoid a data bank report is to settle the case with a personal payment by the physician, as opposed to a payment by a carrier. Payments from the physician's own pocket usually are not reportable to the NPDB.
Supporting what risk managers tell physicians all the time, Segal and Stewart advise that physicians can diffuse a difficult situation by being more open with patients after an adverse event. This outcome can be accomplished whether a lawsuit will be filed and whether or not a report must be made to the NPDB, they say.
If physicians are open and intervene early with a patient, it may be possible to avoid the data bank report, they say. But even if the NPDB report is inevitable, there still is great benefit to being honest and forthcoming with information.
"When they dig in their heels and won't communicate, it makes people mad and just escalates the conflict," Segal says. Physicians sometimes become noncommunicative because they know they're going to be reported to the NPDB, and they think there's nothing they can do make things better, he says. "But they're wrong about that," Segal says. "Even if you're being reported, you can still mitigate the damages."
When pursuing a strategy that depends on no written claim from the patient, risk managers must be very careful about how they propose the idea to patients, suggests Patricia F. Jacobson, JD, formerly a health care risk manager and now an attorney with the Cleveland law firm of Walter & Haverfield. Some proponents suggest telling the patient that this low-key, amicable approach must end when the patient files a written claim for damages, explicitly telling the patient, "We will work cooperatively with you, but please don't put anything in writing."
Jacobson says she would be uneasy with any statement that so strongly discourages a lawsuit. Asking the patient not to call a lawyer will make him or her suspicious right away and sends the wrong message, she says. (See box below for more of Jacobson's advice on how to talk with patients after an adverse event.)
What is the best policy after adverse event?
Honesty always is the best policy following an adverse event, says Patricia F. Jacobson, JD, formerly a health care risk manager and now an attorney with the Cleveland law firm of Walter & Haverfield.
While Jacobson sympathizes with physicians who want to avoid reports to the National Practitioner Data Bank (NPDB), she says that concern should never be the risk manager's first priority. After all, she says, the NPDB is a legitimate tool for tracking physician involvement in adverse events, and no risk manager should work to subvert that effort. Jacobson notes that are ways to be honest with the patient and disclose the adverse event without the patient filing a claim that would spur a NPDB report. Contrary to what many physicians may assume, Jacobson says an open discussion with the patient can decrease the likelihood of a lawsuit and data bank report.
"This is the 'I'm-sorry' approach that a lot of risk managers are supporting now, and it can be the most effective way to resolve the situation without it escalating to something that will generate a data bank report," she says. "It can be appropriate to offer to pay the additional medical expenses and other reasonable compensation, but the key is to sit down and talk openly with the patient instead of trying to hide anything."
Jacobson notes, however, that this approach is no panacea. Despite your best, most sincere efforts, some patients still will file a claim. And Jacobson cautions that any settlement, even if it is reached without a written claim by the patient, is reportable to the NPDB if the funds come from the physician's insurer. So if you are settling with one goal being to avoid a report to the NPDB, the funds must come from the physician.
A related point involves the hospital's disciplinary action toward a physician after an adverse event. If the hospital suspends the physician's privileges for 30 days or more, the action must be reported to the data bank. So is it ever OK for a risk manager to bargain for a suspension of, say, 29 days instead to give the doctor a break?
"I don't think that's ever a good idea," she says. "You can't get carried away with this issue of reportability to the data bank. You suspend a doctor for patient safety reasons, and you need to focus on that above all else."
Jacobson doesn't recommend having a discussion about whether to file a lawsuit. "There is something that is at least borderline improper about telling a patient not to file a lawsuit and money is at risk if they do," she says. The more important goal is to talk about the medical issue that occurred, Jacobson says. "Arrange to take care of the problem and the patient and, theoretically, they will have no reason to file a lawsuit."
Jacobson also points out that there are some cases so severe that they are not likely to be settled with a low-key approach. Birth injuries, for instance, are serious enough and involve such huge liability that they will not be settled with just a friendly chat. Some cases will have to go through the legal system, she maintains.
For more information on avoiding reports to the National Practitioner Data Bank, contact:
- Patricia F. Jacobson, JD, Walter & Haverfield, The Tower at Erieview, 1301 E. Ninth St., Suite 3500, Cleveland, OH 44114-1821. E-mail: (216) 781-1212. E-mail: [email protected].
- Jeffrey Segal, MD, President, Medical Justice, P.O. Box 49669, Greensboro, NC 27419. Telephone: (877) 633-5878. E-mail: [email protected].
- James M. Stewart, JD, Stewart & Stimmel, 1701 N. Market St., Suite 318, L.B. 18, Dallas, TX 75202. Telephone: (214)752-7471. E-mail: [email protected].
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