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When reviewing content from the electronic health record (EHR), there are many elements to assess.  One of the elements is the use of the copy/paste functionality (CPF).  In this blog, I’ll be reviewing the use of CPF within the EHR.  I’ll also will be reviewing The American Health Information Management Association’s (AHIMA) position on the use of CPF, statistics, and risks associated with CPF.  I will conclude with reviewing the role of the medical legal consultant, as well as best practice recommendations to mitigate documentation risk. 

Use of the Copy/Paste Functionality (CPF) in EHR’s: The American Health Information Management Association (AHIMA) maintains the position that “the use of copy/paste functionality in EHRs should be permitted only in the presence of strong technical, and administrative controls, which include organizational policies, and procedures, requirements for participation in user training and education, and ongoing monitoring.  Users of the copy/paste functionality should weigh the efficiency and time savings benefits it provides against the potential for creating inaccurate, fraudulent or unwieldy documentation.”

CPF – A Common Occurrence in the EHR: The use of CPF continues to be a common occurrence which can lead to adverse outcomes. 

The Joint Commission published the results of the Partnership for Health IT Patient Safety work group.  Their literature review identified 51 publications:

• One study of diagnostic errors found that CPF led to 2.6% of errors in which a missed diagnosis required patients to seek additional unplanned care.

• Several case reports identified clinical harm related to CPF, including a patient who died from a heart attack after his primary care physician (PCP) failed to diagnose cardiac disease.

A. Two years prior, the patient was discharged from the ED after a new diagnosis of atrial fibrillation, and potential heart disease; he was instructed to follow up with his PCP for a stress test.

B.  The PCP copied and pasted the assessment and plan (A/P) section of the patient’s record
for 12 office visits during the next two years, updating the A/P or reviewing medical entries
from the ED or other department.

C.  The PCP was found liable in the death.

• A study published in 2017 reviewed inpatient progress notes written in 2016 by direct care hospitals, residents, and medical students totaling 23,630 notes by 460 clinicians.  In a typical note, 18% of the text was manually entered, 46% copied, and 36% imported.

Risks of CPF:

• Inaccurate or outdated information can lead to medical errors.
• Redundant information, which makes it difficult to identify the current information.
• Inability to identify the author or intent of documentation.
• Inability to identify when the documentation was first created.
• Propagation of false information: inflates, duplicates or creates fraudulent healthcare claims.
• Internally inconsistent progress notes.
• Unnecessarily lengthy progress notes.

Role of the Medical Legal Consultant:

Attorney-Client Education

• EHR documentation standards
• Discoverable items not included in the designated record set
• Regulatory requirements: user specific

Development of interrogatories & requests for production

Development of discovery responses

Recommend expert witnesses – specific to the EHR at issue

Witness Preparation

Educate staff/end users of the EHR

• Assess knowledge of the workflow
• Evaluate if end users have observed the native EHR in printed format
  A. Determine if they know how to read the printed version
• Types of assessments
  A. Standardized by EHR platform
  B. Customized by provider
  C. Use of free text

Evaluate the type of, and how much training the end user received prior to
using the EHR.  Evaluate what the training consisted of

Evaluate if the organization has consistency across EHR user roles,
access and permissions

Evaluate the organizations processes specific to record set-up, changes, revisions, additions,
and retirement of modules to the EHR

Ways to Mitigate Risk / Joint Commission Best Practice Recommendations:

• Chart timely: during the same scheduled shift
• Limit use of copy/paste functionality
• Be cognizant of scope of practice
• Disable drafts
• Utilization of the EHR report feature to track, trend, and audit. Ensure that copy/paste practices are regularly monitored, measured, and assessed
• Provide a mechanism to make copy/paste material easily identifiable
• Ensure adequate staff training, and education regarding the appropriate, and safe use of CPF
• Develop policies, and procedures addressing the proper use of the CPF to assure compliance with governmental, regulatory, and industry standards
• Address the use of features such as copy/paste in the organization’s information governance processes
• Monitor compliance, and enforce policies, and procedures regarding use of copy/paste, and institute corrective action as needed.

Resources:

The Joint Commission. Sentinel Event Alert 54. “Safe Use of Health
Information Technology.” March 31, 2015. Retrieved from: https://www.jointcommission.org/resources/patient-safety-topics/sentinel-event/sentinel-event-alert-newsletters/sentinel-event-alert-54-safe-use-of-health-information/#.YpkLlFTMIos

The Joint Commission. “The Joint Commission Standards.” https://www.jointcommission.org/standards

The Joint Commission. Quick Safety 10. “Preventing Copy-and-
Paste Errors in EHRs.” Updated July 2021. Retrieved from: https://www.jointcommission.org/resources/news-and-multimedia/newsletters/newsletters/quick-safety/quick-safety–issue-10-preventing-copy-and-paste-errors-in-ehrs/preventing-copyandpaste-errors-in-ehrs/#.YpkLcFTMIos

P.S. Comment and share – How will this information change your documentation practices, or how you analyze the EHR?

In this post, I’ll be addressing the most current evidence, published standards of care, and guidelines from professional associations, and regulatory agencies specific to fetal heart rate interpretation and management. 

Fetal heart rate pattern interpretation, communication, and documentation continues to be one of the most common areas of perinatal liability claims. It is best practice to utilize current practice guidelines, and standards of care as a guide for the revisions, and development of institutional policies as a means to decrease professional liability exposure, and minimize the risk of perinatal injury.

Common Themes: In review of birth injury cases, I have observed common themes (allegations):

• Failure to interpret a non-reassuring fetal heart rate (FHR) tracing
• Failure to accurately assess maternal-fetal status
• Failure to recognize a deteriorating fetal condition
• Failure to appropriately treat an indeterminate or abnormal FHR in a timely manner (E.g., failure to initiate intrauterine resuscitation based on FHR pattern and/or plan for expeditious birth when clinically indicated)
• Failure to accurately communicate the maternal-fetal status to the physician/certified nurse midwife
• Failure to request bedside evaluation based on concern for fetal status to the physician/certified nurse midwife
• Failure of the physician/certified nurse midwife to respond appropriately when notified of indeterminate or abnormal fetal status
• Failure to initiate the chain of command (communication) when there is a clinical disagreement between the nurse, and responsible physician/certified nurse midwife, regarding fetal status   

Standards of Care:

• Use of EFM definitions and descriptions based on the 2008 National Institute of Child Health and Human Development (NICHD) Working Group findings (ACOG Practice Bulletin, Intrapartum Fetal Heart Rate Monitoring, 2017)
• In the presence of an EFM tracing with minimal or absent variability, and without spontaneous accelerations, an effort should be made to elicit accelerations by means of vibroacoustic stimulation, or scalp stimulation.  When there is an acceleration with stimulation, acidemia is unlikely, and labor can continue (ACOG Practice Bulletin, Intrapartum Fetal Heart Rate Monitoring, 2017).
• Be aware of the EFM findings consistent with an abnormal acid-base status: absence of accelerations; minimal to no variability (ACOG Practice Bulletin, Intrapartum Fetal Heart Rate Monitoring, 2017).
• Be aware of when to implement intrauterine resuscitation based on interpretation of EFM: Category 2, and category 3 FHR tracings, uterine tachysystole (dependent on FHR pattern, and presence or absence of oxytocin (ACOG Practice Bulletin, Intrapartum Fetal Heart Rate Monitoring, 2017).
• Implement intrauterine resuscitation based on the presumed etiology of the FHR pattern: maternal repositioning, intravenous fluid bolus, oxygen administration (if oxygen is being administered for intrauterine resuscitation, oxytocin should be discontinued), reduction of uterine activity, correction of maternal hypotension, amnioinfusion, modification of maternal pushing efforts during second stage labor (AWHONN Perinatal Nursing, 2021).
• Be able to recognize uterine tachysystole: 5 contractions in 10 minutes, averaged over 30 minutes. 
• Be aware of the interventions to manage tachysystole in the presence, and absence of oxytocin.  E.g., uterine tachysystole in the presence of oxytocin with a Category 1 tracing requires a reduction in oxytocin.  Uterine tachysystole in the presence of oxytocin with a Category 2 or 3 tracing requires a reduction or discontinuation of oxytocin, and implementation of intrauterine resuscitative measures.  If no resolution, a tocolytic should be considered.
• During induction or augmentation of labor with oxytocin, the FHR should be evaluated and documented before each dose increase, and following each dose increase (AWHONN Position Statement, Fetal Heart Monitoring, 2015)
• If continuous EFM is ordered, monitoring of FHR, and uterine activity should continue until birth (AWHONN Perinatal Nursing, 2021).
• Development of institutional policies, procedures, and protocols that outline responsibility for ongoing FHM documentation (AWHONN Position Statement, Fetal Heart Monitoring, 2015).
• Documentation should include communication with providers (AWHONN Position Statement, Fetal Heart Monitoring, 2015).
• Documentation should include communication within the chain of resolution / chain of command (AWHONN Position Statement, Fetal Heart Monitoring, 2015).
• Ongoing education and competency validation for RN’s, and other healthcare providers responsible for FHM (AWHONN Position Statement, Fetal Heart Monitoring, 2015).
• Use of oxytocin safety checklists are recommended as they provide prerequisites to safely initiate oxytocin, and to help identify situations that require discontinuation (ACOG Optimizing Protocols in Obstetrics, Oxytocin for Induction, 2011).  

References:

ACOG (2011). Optimizing protocols in obstetrics, Oxytocin for induction   

ACOG (2017). Practice Bulletin, Intrapartum fetal heart rate monitoring

AWHONN (2021). Perinatal nursing

JOGNN (2015). AWHONN position statement: fetal heart monitoring

P.S. Comment and share your experience with a birth injury case related to fetal monitoring interpretation, communication and/or documentation.

In this blog, I’ll be reviewing the national, and New York State statistics related to maternal mortality associated with obstetrical hemorrhage.  I’ll also highlight one of the risk factors associated with obstetrical hemorrhage, and discuss the standards of care that should be employed to mitigate the risk of maternal morbidity and mortality. 

Statistics: Obstetrical hemorrhage is a preventable cause of maternal morbidity and mortality and continues to be one of the leading causes of maternal death in the U.S.

How the U.S. compares to 10 other developed countries:

In New York State, postpartum hemorrhage is the 2^nd most frequently reported postpartum complication, and accounted for 29% (18) of maternal deaths between 2012-2013 according to the NYS Maternal Morbidity and Mortality Review Report (2017).

Prolonged oxytocin exposure as a risk factor: In a recent (published May, 2022) retrospective cohort study performed by Boston University School of Medicine, prolonged (greater than or equal to 12 hours) oxytocin exposure for induction of labor increased the risk of obstetrical hemorrhage by 52% compared to those women exposed for less than 12 hours.  Use of obstetrical risk assessment tools alert the perinatal team to the risk of obstetrical hemorrhage and prompts evidence-based interventions.

The importance of standardized safety bundles: The American College of Obstetricians and Gynecologists (ACOG) recommends the use of the Obstetrical Safety Bundle as a means to guide standardized management of obstetrical emergencies associated with maternal morbidity and mortality in accordance to evidence-based practice.  ACOG’s Safe Motherhood Initiative (SMI) focuses on the four leading causes of maternal death: maternal sepsis, obstetric hemorrhage (severe bleeding), venous thromboembolism (blood clots), and severe hypertension in pregnancy (high blood pressure).

The Obstetrical Hemorrhage Safety Bundle includes:

• Risk assessments: prenatal, antepartum, labor & delivery, and postpartum.
• Use of a staged obstetrical hemorrhage checklist to guide interventions in real-time.
• Team debriefing recommendations and a standardized debriefing form.
• Suggested standardized obstetrical hemorrhage tool kit.
• Recommendation to perform quantitative blood loss assessment (QBL) with every delivery.

The Joint Commission Perinatal Safety Standards: Effective January 1, 2021, the Joint Commission implemented new perinatal safety standards required of all Joint Commission accredited hospitals.   One of the new standards aims to improve care for women experiencing maternal hemorrhage.  The Joint Commission requirements focus on evidence-based written procedures, education, training, and drills for staff and providers, education for patients and families, and quality review.  The requirement also focuses on evidence-based risk assessments and hemorrhage supply kits. 

References:

ACOG’s Obstetrical Hemorrhage Safety Bundle. https://www.acog.org/community/districts-and-sections/district-ii/programs-and-resources/safe-motherhood-initiative/obstetric-hemorrhage

MedPage Today. 2022. https://www.medpagetoday.com/meetingcoverage/acog/98676

NYS Department of Health. 2017. NYS Morbidity and Mortality Review Report

OECD Health Data. 2020

P.S. Comment and share your experience with a maternal death case associated with obstetrical hemorrhage. What were the deviations in the standards of care? 

In this blog, I’ll be reviewing the purpose of medical staff hospital credentialing, identifying who is responsible for credentialing, comparing the roles and responsibilities of the medical staff, and the hospital Board, and reviewing criteria-based systems recommended for the credentialing process.  It’s important to have an understanding of the above concepts to ensure that hospital systems have an effective credentialing process that promotes patient safety, sustains a system that mitigates the risk of malpractice litigation, while also mitigating the risk of restraint of trade. 

Credentialing Purpose: The primary purpose of credentialing is to protect patients by ensuring quality patient care.  A credentialing process appropriately overseen by the hospital Board reduces patient exposure to poorly performing providers, ultimately, reducing the risk of preventable patient injury. 

secondary purposes:

• To ensure that only qualified providers are admitted and allowed to remain on medical staff.  Medical staff includes Physicians, Physician Assistants (PA), and Advanced Practice Registered Nurses (APRN): Certified Nurse Midwives (CNM), Nurse Practitioners (NP), and Certified Registered Nurse Anesthetists (CRNA).   
• To ensure that providers are practicing within their scope, consistent with quality standards of the hospital.
• The appointment, re-appointment into medical staff.
• The granting, and renewal of privileges (delineation of privileges) – what a provider is allowed, and not allowed to do, types of patients a provider is able to manage, types of diseases the provider is able to treat, procedures the provider is able to perform, or not perform based on privileging delineations, and clear credentialing criteria.  For example, CNM management of low-risk obstetrical patients; CNM collaborative management with Ob/Gyn for high-risk obstetrical patients.

Who is Responsible for Hospital Credentialing? Medical staff credentialing is the core responsibility of the hospital Board, and serves to be the most important responsibility of the Board secondary to the impact on patient safety, and the role credentialing has within the hospital’s quality improvement and patient safety system. 

The legal structure (as shown below) needs to be understood by the Board, medical staff, and management to ensure clear role delineation, and to ensure an effective credentialing system.

                              

Roles and Responsibilities: It’s important to have a clear understanding of role delineation to ensure that the hospital has an effective credentialing process that promotes safe work environments, while reducing the risk of patient injury. 

Board:

• Reviews recommendations received from the medical executive committee and compares the recommendations against established credentialing criteria
• Makes sure the credentialing criteria is consistently applied to all applicants: efforts need to be made to avoid loose criteria that could result in patient injury and increase the risk of malpractice litigation.  Contrary, efforts need to be made to avoid tight / biased criteria that could result in claims of negligent credentialing, and/or restraint of trade
• Makes sure the medical executive committee has a credentialing procedure in place
• Makes final decisions: grants privileges, grants admission into medical staff 

Medical Staff (Medical Executive Committee):

• Makes recommendations to the Board
• Identifies credentialing criteria for evaluating providers
• Evaluates performance
• Evaluates applicants

Credentialing is proven to be the most difficult governance function to perform effectively for the following reasons:

• Many Boards and medical staff do not accept the Boards role to oversee the medical staff
• Many lay Board members are not comfortable with the responsibility
• Neither the Board, nor the medical staff know how to do credentialing

The hospital Board maintains liability for inappropriate decisions made regarding (re)credentialing and delineation of privileges.  The Board cannot exclusively rely on the recommendations of the medical executive committee as a defense to justify a poor decision.

How To Do Hospital Credentialing – The Use of Criteria Based Systems for (Re)Credentialing and Privilege Delineation: It’s best practice to have a clear decision criterion for credentialing and delineation of privileges that sets the hospitals quality and safety bar high.  The criteria should be based on internal information sources.  Additionally, privilege delineation should be unique and specific to each provider.  The Joint Commission requires provider specific data to be collected continuously and reviewed at the time of re-credentialing.  It’s recommended that this provider specific data is compared to the aggregate data as a means to identify how each individual provider is performing in each performance measure in comparison to his/her provider colleagues.  Typically, the specific credentialing criteria are developed by the clinical department, and submitted to the medical executive committee (MEC) for approval.  MEC then makes the recommendation to the Board who makes the final decision. 

Examples of Criteria Based Credentialing:

               Frequency Criteria: A number of professional organizations suggest frequency criteria for (re)credentialing and privileging.  For example, Surgeon A is required to perform 20 laparoscopic cholecystectomies in a 2-year period (credentialing term per Joint Commission is 2-years).

               Minimum Volume Required Criteria: For example, Surgeon A is required to perform a minimum of 10 laparoscopic cholecystectomies in a 2-year period. 

               Clinical Outcomes: Internal data – individual provider specific data (outcome measures).  For example, Surgeon A’s specific data (outcomes): post-operative complications, morbidity and mortality rates, returns to the OR, wound infections.

               Behavior Criteria: Patient complaints, malpractice claims per individual provider

References:

American Hospital Association Trustee Service. 2017. The Role of the Board in Medical Staff Credentialing:https://trustees.aha.org/quality/the-boards-role-in-medical-staff-credentialing

Credentialing and Privileging – Requirements for Physician Assistants and Advanced Practice Registered Nurses:https://www.jointcommission.org/standards/standard-faqs/hospital-and-hospital-clinics/medical-staff-ms/000002124/

JCAHO’s new credentialing, privileging standards require provider-specific data: https://www.reliasmedia.com/articles/122719-jcaho-s-new-credentialing-privileging-standards-require-provider-specific-data

P.S. Comment and share your experience with hospital credentialing.

                                                    

In this blog I’ll be reviewing the difference between rotational and non-rotational maneuvers in the management of a shoulder dystocia.  I’ll also discuss the efficacy in relieving the shoulder dystocia, and the risk of brachial plexus injury, comparing both types of maneuvers.   

Non-rotational maneuvers: pose the least risk on the degree of stretch on the brachial plexus nerve.  Examples include: McRoberts maneuver, suprapubic pressure, and delivery of the poster arm. 

According to ACOG, in cases where the McRoberts maneuver and suprapubic pressure are unsuccessful, delivery of the posterior arm can be considered as the next maneuver to manage shoulder dystocia. Recent evidence has shown that delivery of the posterior arm has a high degree of success in accomplishing delivery.  In a computer-generated model, delivery of the posterior arm required the least amount of force to effect delivery and resulted in the lowest amount of brachial plexus stretch.  The use of the above maneuvers will relieve 95% of cases of shoulder dystocia within 4 minutes. 

Below Image (delivery of the posterior arm) requires the delivering provider to insert a hand into the vagina and deliver the posterior arm by sweeping it across the fetal chest

Rotational maneuvers: Examples include: The Rubin maneuver,  the Woods Screw maneuver

• The Rubin maneuver requires the delivering provider to insert a hand into the vagina and on the back surface of the posterior fetal shoulder.  The provider then rotates the fetal shoulder anteriorly towards the fetal face with his/her hand.
• The Woods Screw maneuver requires the delivering provider to rotate the fetus by exerting pressure on the anterior, collar bone region of the posterior shoulder to turn the fetus until the anterior shoulder emerges from behind the maternal symphysis (pubic bone).

Below Image (Rubin Maneuver)

References:

The American College of Obstetricians and Gynecologists. (2014). Neonatal brachial plexus palsy. ACOG Task Force on Brachial Plexus Palsy

The American College of Obstetricians and Gynecologists. (2017). Shoulder dystocia [Clinical Practice Bulletin #178]

 P.S. Comment and Share: What has been your experience in a brachial plexus case involving a shoulder dystocia?  How did the standards of care, specific to type of maneuvers, and type of traction employed, impact the outcome of the case?  

In this blog, I’ll be reviewing the U.S. maternal morbidity statistics associated with hypertensive disorders of pregnancy. Additionally, I’ll be highlighting the elements of performance, specific to severe hypertension and preeclampsia, Joint Commission accredited hospitals are required to be in compliance with. Lastly, I will offer risk mitigation strategies specific to care delivery, risk assessment, prevention, documentation, consultation, and referral.

Statistics: Hypertensive disorders of pregnancy (chronic hypertension, gestational hypertension, severe hypertensive crisis, preeclampsia, eclampsia, HELLP Syndrome) continue to be the leading cause of maternal and infant death.  Preeclampsia specifically, complicates 8% of pregnancies globally.  It is estimated that 60% of maternal deaths from preeclampsia may be preventable.  In the U.S., hypertensive disorders of pregnancy account for 6.8% of pregnancy related deaths.  For women who had a hypertensive disorder of pregnancy cause of death, 12.2% had a stillbirth (fetal demise).  Almost all (96.8%) pregnancy related deaths occurred by 42 days postpartum (CDC, 2018).

The Joint Commissions Perinatal Safety Standards: In response to the worsening maternal morbidity and mortality in the U.S. associated with severe hypertension and preeclampsia,  The Joint Commission has identified clinical areas of greatest potential impact based on review of maternal mortality reports, and evidence-based practice recommendations.  

The literature review performed revealed that prevention, early recognition of signs and symptoms, and timely treatment for severe hypertension, and preeclampsia had the highest impact on maternal, fetal, and neonatal outcomes.

Joint Commission accredited hospitals are now required to conform to the six new elements of performance (EPs) as identified below:

GOAL: PC.06.03.01 – Reduce the likelihood of harm related to maternal severe hypertension/preeclampsia

Requirement EP 1: Develop written evidence-based procedures for measuring and remeasuring blood pressure. These procedures include criteria that identify patients with severely elevated blood pressure.

Rationale:  Procedures should address appropriate blood pressure measurement, including cuff size, proper patient positioning, and frequency of measurement. Inaccurate measurement can lead to a mother not receiving proper treatment and being discharged with elevated blood pressure. Untreated hypertension can lead to morbidities or even death. Criteria for what constitutes a severely elevated blood pressure should be established by the organization utilizing current recommendations from national organizations.

Requirement EP 2: Develop written evidence-based procedures for managing pregnant and postpartum patients with severe hypertension/preeclampsia that includes the following:

• The use of an evidence-based set of emergency response medications that are stocked and immediately available on the obstetric unit

• The use of seizure prophylaxis

• Guidance on when to consult additional experts and consider transfer to a higher level of care • Guidance on when to use continuous fetal monitoring

 • Guidance on when to consider emergent delivery

• Criteria for when a team debrief is required

Note: The written procedures should be developed by a multidisciplinary team that includes representation from obstetrics, emergency department, anesthesiology, nursing, laboratory, and pharmacy.

Rationale: Studies have shown that delays in the diagnosis and treatment of severe hypertension/preeclampsia and receipt of suboptimal treatment of severe hypertension/preeclampsia are linked with adverse maternal outcomes. Having clear procedures in place and educating staff around these procedures should decrease failures to recognize and treat severe hypertension/preeclampsia

Requirement EP 3: Provide role-specific education to all staff and providers who treat pregnant/ postpartum patients about the hospital’s evidence-based severe hypertension/preeclampsia procedure. At a minimum, education occurs at orientation, whenever changes to the procedure occur, or every two years.

Note: The emergency department is often where patients with symptoms or signs of severe hypertension present for care after delivery. For this reason, education should be provided to staff and providers in emergency departments regardless of the hospital’s ability to provide labor and delivery services.

Rationale: Decreasing the blood pressure through rapid recognition and treatment has been shown to decrease maternal morbidity and mortality. It is imperative to provide education for staff and providers on how to measure accurate blood pressures, recognize severe hypertension/ preeclampsia, and provide evidence-based treatments to lower blood pressure in a safe and timely manner. Although not required, in situ simulations that allow staff to practice organizational procedures in actual clinical settings are encouraged.

Requirement EP 4: Conduct drills at least annually to determine system issues as part of ongoing quality improvement efforts. Severe hypertension/preeclampsia drills include a team debrief.

Rationale: Multidisciplinary drills give an organization the opportunity to practice skills and identify system issues in a controlled environment. It is crucial to have members from as many disciplines as possible available during drills to truly be able to test each level of the emergency and identify areas of improvement. Organizations should assess their level of proficiency to determine the frequency drills should be performed; organizations that have reached a high level of mastery may need less frequent drills.

Requirement EP 5: Review severe hypertension/preeclampsia cases that meet criteria established by the hospital to evaluate the effectiveness of the care, treatment, and services provided to the patient during the event.

Rationale: Continuous feedback loops are imperative for organizations to find errors and improve skills to ensure that patients are receiving the highest level of care. Root cause analysis, apparent-cause analysis, or similar tools to review the care in a rigorous, psychologically safe environment is critical to identify successes and opportunities for improvement in a way that creates a culture of safety and empowers staff to design safe and effective procedures and processes.

Requirement EP 6: Provide printed education to patients (and their families including the designated support person whenever possible). At a minimum, education includes:

• Signs and symptoms of severe hypertension/preeclampsia during hospitalization that alert the patient to seek immediate care

• Signs and symptoms of severe hypertension/preeclampsia after discharge that alert the patient to seek immediate care

• When to schedule a post-discharge follow-up appointment

Rationale: Maternal mortality reviews have shown that some patients with severe hypertension/ preeclampsia due after discharge because they were unaware of which symptoms to watch for and when to seek care urgently. Women should understand their severe hypertension/ preeclampsia diagnosis and inform healthcare providers of their pregnancy history when the seek care after discharge to ensure correct diagnosis and treatment.

How to Mitigate Medicolegal Risk & Increase Defensibility:

1. Confirm that your organization is conforming to the six elements of performance (EPs) that is now required for Joint Commission accredited hospitals.  Become an active provider leader in implementing and educating staff/providers on the above (EPs). Render care according to the above (EPs). Consider implementing re-credentialing requirements to support required simulation drills and debriefings.
2. Identify women at risk: first pregnancy, new genetic makeup, pregnancy of artificial reproductive technology, multiple pregnancy, gestational diabetes, preexisting medical history: diabetes, chronic hypertension, renal disease, lupus, older maternal age, African American race, obesity, personal or family history of preeclampsia (list is not inclusive)
3. Document risks, and plan of care for surveillance and prevention strategies in pregnancy within the medical record.
4. Implement prevention strategies in plan of care, and document in medical record: exercise, low dose aspirin therapy, dietary supplementation
5. Diagnose and initiate timely management according to evidence-based practice criteria, and organizational policy: document diagnosis and management plan in the medical record.
6. Consider referral to Maternal Fetal Medicine, or higher level of care delivery based on organizational level of care, and maternal consultation and transfer agreement with Regional Perinatal Center. 
7. Consultation/collaboration: ensure patient assessment is complete within the time frame designated within organizational by-laws, rules and regulations.  Ensure timely entry of consultation / progress note as the consulting, or collaborating provider.

References:

Association of Women’s Health, Obstetric, and Neonatal Nurses. 2021.

CDC. 2018. Pregnancy mortality surveillance system

The Joint Commission. 2019. Provision of care, treatment, and services standards for maternal safety. Issue 24

P.S. Comment and Share: Do you have experience with a maternal hypertensive case that resulted in a maternal death.  Did this case impact policy, procedure, process, or system changes as a result?

In this blog, I’ll be reviewing Independent Medical Examinations (IME’s): What they are, the role of the IME examiner, and IME nurse observer.

What is an IME: Independent Medical Examinations (IME’s) are medical examinations performed by a qualified physician or other examiner who has not previously treated the injured client.  The IME examiner’s goal is to evaluate the injured client’s prior treatment, and the current condition of the injuries reported by the plaintiff.  The IME serves as ammunition, a means to challenge claims, lawsuits, and evaluations of injured workers’ treating physicians.  IMEs are also referred to as Defense Medical Examinations (DME’s) as the provider examining the client was hired by the defendant’s attorney, or insurance company to defend their side of the case. 

IME Examiner: The role of the IME examiner is restricted to examining only what pertains to the event in question, questioning about the nature of the accident, or how the injury occurred.  The IME examiner is not permitted to ask questions that would raise liability issues/concerns.  E.g., inquiring about cell phone use while driving.  

IME Nurse Observer: Legal Nurse Consultants are well qualified to serve as IME observers.  LNC’s have the dual nursing, and legal nurse consulting educational background (LNC educational background should be verified by the hiring attorney client), hands-on clinical experiences to support application of knowledge, and skill sets, strong leadership acumen, and effective communication skills.  These qualities leverage IME nurse observers favorably to professionally, and diplomatically hold the IME examiner accountable. 

Roles of the IME nurse observer:

• Educate the client on the IME process, procedures, limitations per the state’s regulations, and case specific court paperwork, as well as office procedures (E.g., evolving Covid-19 safety protocols)
• Observe the examination, and take detailed notes during the examination specific to tests performed, client’s response to tests, type of focused assessment performed, completion of comprehensive head to toe assessment, omissions in examination, or tests.  
• Compile time stamped authoritative reports of all that was said and done during the examination to be compared with the IME examiner’s reports  
• Be aware of what screening and diagnostic tests are permitted within the IME examiner’s scope of practice, and based on the alleged injury
• Object to inappropriate history taking, screening processes, and tests not relevant to the alleged injury
• Serve as a client advocate
• Testify regarding the examination (E.g., in the event the IME examiner’s report differs from the IME nurse observers report) 
  • Paralegals are at time sent to attend IMEs to act as legal representatives as they are knowledgeable about what is and is not permitted during an IME.  However, paralegals cannot testify in the event a discrepancy is identified. 
  • Paralegals do not have the medical training to support a critical IME observation.
  • The profession of nursing is viewed as the most honest and ethical profession. When nurses serve as testifying experts, they are often viewed honorably by jury members.     

Know Your State Codes and Regulations: Review your states Code of Civil Procedure, and regulations.  In New York State, for example, the plaintiff is “entitled to be examined in the presence of his or her attorney or other legal, or non-legal  representative, as well as interpreter.”  Additionally, in NYS, women have the right to have a female IME examiner, or a woman of their choosing present when the IME is performed by a male IME examiner.  This section of the NYS Labor Law (Section 206A) is often violated. 

Importance of Knowing Basic IME Rules: Failure to comply with the rules and regulations of IMEs can influence the outcome for the client, and the lawsuit. 

Know your state’s Code of Civil Procedure as each state has different regulations.

• Identify yourself upon entry into the examination room
• Observe examination without interference
• Refrain from bringing surveillance materials (applicable to NYS) (Know your state’s Code of Civil Procedure as each state has different regulations)
• If the IME examiner refuses to allow the IME nurse observer into the examination room, encourage the client to leave the examination location. The IME nurse observer should then follow up with the client’s attorney
• Prevent the client from completing unnecessary intake forms that could be misinterpreted.  Support the opportunity for relevant intake questions to be asked in the presence of the IME nurse observer to allow for recording
• Ensure that the client does not sign documents unless the legal team permits
• No member from the defense team should be permitted to attend the IME examination

References:

New York Committee for Occupational Safety and Health https://www.nycourts.gov/reporter/webdocs/NYCOSH_Independent_Medical_Examinations.htm

Official Compilation of Codes, Rules, and Regulations of the State of New York, Department of Labor, Workers’ Compensation

www.NYSenate.gov

P.S. Comment and Share: What has been your experience with IMEs?  Historically, who have you retained as IME observers? What worked well? What didn’t work well?

When is missed or delayed colorectal cancer (CRC) considered negligence?

In this blog, I’ll be reviewing the elements that are reviewed to identify if a missed, or delayed CRC diagnosis constitutes negligence.  I will also provide some examples of breaches in the standards of care specific to missed CRC cases.  As a means to promote greater awareness of colorectal health, and CRC awareness, I will also share current statistics, screening recommendations from authoritative sources, risk factors for CRC, and CRC symptoms.

Evaluating your CRC Case for Negligence / Mitigating Risk for Medical Negligence:

Having an awareness of the current standards of care, and rendering care in accordance to current standards of care specific to risk-based screening, and treatment reduces the risk of medical negligence.  A missed or delayed diagnosis of CRC is associated with greater morbidity and mortality.  Literature suggestions that delays in diagnosis are related to avoidable factors, such as improving the quality of bowel preparation, ensuring further investigations in patients with incomplete endoscopies, and colonoscopies, having endoscopies performed in accredited endoscopy centers, and timely follow up when non-cancer pathology is identified.  

Secondary to the fact that 2%-6% of CRC cases are missed following colonoscopy, most professional societies recommend counseling patients about this “miss rate.”

When evaluating a missed CRC diagnosis case for negligence, the four legal elements of negligence must be proven:

1. Duty: Did the defendant have a duty to the plaintiff?
2. Breach of Duty: Did the defendant fail to deliver care that an ordinarily careful, reasonable, and prudent person would do under the same or similar circumstance? Were there acts of omission related to the standards of care being met?

A. Failure to identify that the patient was at high risk for CRC.

B. Failure to recognize the patient’s symptoms as a risk factor for CRC.

C. Failure to order CRC screening.

D. Failure to include CRC in the differential diagnoses.

E. Failure to order appropriate tests, and/or referrals following a diagnosis of CRC

3. Damages & Injuries: Were there damages or injuries, such as economic and non-economic damages, that the plaintiff is alleging?

4. Causation: Did the acts of the defendant cause the damages, or injuries that the plaintiff is claiming?

Statistics:

• CRC is the third most commonly diagnosed cancer in men and women combined in the U.S.
• CRC is the second leading cause of cancer death in men and women combined in the U.S.

Estimates for 2022:

• 151,030 people will be diagnosed with CRC in the U.S.
• 52,580 people will die from CRC in the U.S.

Young-onset CRC is on the rise

• Rates for people under 50 increased 2.2% each year
• Median Age of Diagnosis: Age 66 (both men and women)
  

Screening:

All men and women without a family history, or risk factors for colorectal cancer (CRC) should begin CRC screenings at age 45, according to the American Cancer Society.

With screening, CRC is one of the most preventable cancers, and highly treatable if caught early.

If you have certain risk factors, you may need to be screened earlier than 45.

Risk Factors:

• Family history of CRC or polyps
• African American
• Have a genetic link to CRC such as Lynch Syndrome
• Have a personal history of cancer
• Have ulcerative colitis, inflammatory bowel disease, or Crohn’s disease

Types of screening chart

Symptoms: CRC often does not cause symptoms early on.  When symptoms do occur, they may include: 

• Change in bowel habits such as diarrhea and/or constipation, a change in the consistency of your stool, or stools that are more narrow than usual.
• Persistent abdominal discomfort such as cramps, gas, or pain. Feeling full, bloated, with or without  nausea & vomiting.
• Rectal bleeding.  You may notice blood in or on your stool that is bright red, or the stool may be black, tarry, or brick red.
• Weakness and/or fatigue associated with anemia (a low red blood cell count).
• Unexplained weight loss

References:

Colorectal Cancer Alliance. (2022). American Cancer Society’s Cancer Statistics Center and Colorectal Cancer Facts & Figures 2020-2022.

Hayes B., et al. (2019). Why are we missing colorectal cancer? A study investigating the cause of delays in diagnosis. BMJ Journal. 68:A190

P.S. Comment and share your experience with reviewing the standards of care to develop your delayed or missed CRC diagnosis case, while considering the “miss rate.”

In this blog, I’ll be reviewing U.S. annual statistics specific to injuries requiring medical care, as well as the types of insurance claims Barber Medical Legal Nurse Consulting, LLC has the expertise to support specific to case development.  I’ll provide some common examples of insurance liability defense cases, as well as some common defenses.  I’ll close with examples of the scope of work our Senior CLNC performs specific to insurance liability cases. 

2020 Statistics:

24.8 million injuries in the U.S. require medical care

200,955 unintentional injury deaths in the U.S. annually

6 million motor vehicle accidents in the U.S. annually

40,698 motor vehicle accident deaths in the U.S. annually

87,404 unintentional poisoning deaths in the U.S. annually

Annual number of injuries on construction job sites:

1. 266,530 cases involving sprains, strains, tears
2. 128,220 cases involving injuries to the back
3. 211,640 cases involving falls, slips, trips

Types of Insurance Claims Barber Medical Legal Nurse Consulting, LLC Supports (Case Development)

• Commercial liability (business insurance)
• Personal liability (automobile, homeowners, property)
• Workers’ compensation
• Medical Personal Injury Protection (no-fault insurance)

Insurance Liability Defense Case Examples (Commercial and Personal Injury Allegations):

• slips, trips, and falls resulting in orthopedic injury such as rotator cuff injury
• automobile accidents resulting in spine injury such as “whiplash”
• injury from dental procedures such as broken teeth
• food poisoning
• nail salon injury
• injury from urogynecological interventions such as surgical mesh implants resulting in mesh exposure and erosion causing vaginal scarring, fistula formation, painful intercourse, pelvic, back and leg pains

Common Defenses for Insurance Liability Cases:

• plaintiff’s injuries were present before the incident
• mechanism of injury does not correlate with alleged injury
• condition is degenerative, not acute or traumatic
• plaintiff delayed seeking treatment after incident

Barber Medical Legal Nurse Consulting, LLC Supports Insurance Liability Case Development (Scope of Services):

• Interacts with members of each case (E.g., claims representative, defense attorney, insurance company, education division, special investigations unit for fraud or criminal investigation)
• Investigates claim
• Reviews medical documents, medical records, school, and employment records, medical bills
• Reviews police and accident reports
• Reviews photographs
• Organizes records
• Performs medical research
• Performs case analysis and report writing including development of a chronology
• Educates staff to support a successful outcome
• Submits requests for production, interrogatories, preparation of deposition questions for claims department, and defense attorney
• Attends independent medical examination (IME)
• Interviews witnesses
• Obtains a life care plan
• Identifies and locates testifying experts, and medical reviewers
• Reviews and analyzes testifying expert reports and depositions

References:

Association for Safe International Road Travel. https://www.asirt.org/safe-travel/road-safety-facts/

National Center for Health Statistics. https://www.cdc.gov/nchs/fastats/accidental-injury.htm

United States Bureau of Labor Statistics. https://www.bls.gov/iif/

P.S.  Comment and share about your role in insurance liability case development.

In this blog, I’ll be reviewing some causes of perinatal litigation, the importance of providing care according to current standards of care, ways to mitigate perinatal liability exposure, common allegations specific to alleged injuries resulting from shoulder dystocia, and current standards of care intended to decrease professional liability exposure, and reduce the risk of iatrogenic (relating to injury or illness caused by medical examination or treatment) maternal and neonatal injury.  

Causes of Perinatal Litigation:  Findings suggest that allegations against nurses, certified nurse midwives, physicians, and/or institutions often result from a lack of knowledge or commitment to practice in accordance to current standards, guidelines, and evidence.  In other instances, care is rendered according to personal experiences, preferences, and history of practice over a long period of time during which the provider has not experienced an adverse outcome.  Moving toward a science based clinical practice environment, rather than “that’s the way we’ve always done it” is a challenge to promoting safe care (AWHONN, 2014; AWHONN, 2021).  

Ways to Mitigate Perinatal Liability Exposure:  Certainly, all adverse events are not preventable, however, practices inconsistent with current standards of care offer opportunity for the plaintiff to demonstrate a breach of the standard of care (AWHONN, 2021).  One key way to reduce liability exposure is to provide care consistent with current standards of care.  

Shoulder dystocia is a common area of perinatal litigation with common allegations including:

• Failure to accurately predict the risk of shoulder dystocia
• Failure to diagnose labor abnormalities
• Failure to appropriately initiate shoulder dystocia corrective maneuvers
• Failure to prioritize delivery of posterior arm
• Failure to perform cesarean birth
• Application of forceps or vacuum at high station, or continued application without evidence of fetal descent, resulting in shoulder dystocia
• Application of fundal pressure during shoulder dystocia, further affecting the shoulder and delaying birth, thereby resulting in maternal-fetal injuries

Standards, Guidelines, Recommendations:

• Although there are a number of known risk factors, shoulder dystocia cannot be accurately predicted or prevented (ACOG, 2017)
• When shoulder dystocia is suspected, the McRoberts maneuver should be attempted first because it is a simple, logical, and effective technique (ACOG, 2017)
• In cases where the McRoberts maneuver and suprapubic pressure are unsuccessful, delivery of the posterior arm can be considered as the next maneuver to manage shoulder dystocia (ACOG, 2017, AWHONN, 2021)
• Simulation exercises and shoulder dystocia protocols are recommended to improve team communication and maneuver use because this may reduce the incidence of brachial plexus palsy associated with shoulder dystocia (ACOG, 2017)
• The Joint Commission’s Sentinel Event Alert, Preventing Infant Death and Injury during Delivery, recommends conducting periodic drills for obstetric emergencies such as shoulder dystocia (AWHONN, 2021)

P.S. Comment and share your experience with a shoulder dystocia litigation. What were the strengths and weaknesses of the case?

References

Simpson K.R. et al. (2021). AWHONN Perinatal Nursing, 5^th ed. Wolters Kluwer

Simpson K.R. & Creehan P.A. (2014). AWHONN Perinatal Nursing, 4^th ed. Wolters Kluwer, Lippincott

The American College of Obstetricians and Gynecologists. (2017). Shoulder dystocia [Clinical Practice Bulletin #178]

Joint Commission. (2004). Preventing infant death and injury during delivery. Sentinel Event Alert Issue 30