Case study: Failure to communicate

A 42-year-old patient arrived for her annual gynecologist appointment complaining of a self-detected breast lump. She had several questions about her condition and wanted to tell her doctor about a family history of breast cancer.

The doctor was in a hurry, therefore, he advised her to talk to the staff. However, the staff was busy with other patients. They told her to call them later. However, the patient did not call.

The gynecologist ordered a mammogram but did not include the patient’s complaint of the breast lump on the requisition. The mammogram was read as “normal” but the report noted a “very dense stromal pattern.” This reduces the sensitivity of the study for the detection of cancer.

The radiologist did not recommend an ultrasound and described the mammogram as “normal” in the report to the gynecologist. Therefore, a follow-up appointment was not scheduled.

Several months later, the patient scheduled another appointment with the gynecologist when she noticed the breast lump had increased in size. Subsequently, she was unfortunately diagnosed with breast cancer and scheduled for surgery.

Related content: The Anatomy of a Good Doctor

Missed opportunities to engage the patient

What were the missed opportunities to help engage this patient in her healthcare? If the doctor or his staff took a little more time, would the patient have asked her questions and provided additional information? This possibly could have resulted in an earlier diagnosis?

Cases like this reveal the importance of engaging patients as a strategy to prevent adverse outcomes. When patients do not feel involved in their care, they are less likely to follow through with treatment, keep the physician informed, and follow the treatment plan.

Patient engagement has emerged as a key component of reducing the likelihood of an adverse outcome.

Further, when patients are angry, they are more likely to sue. Similarly, patients are more apt to file a claim when they feel like they are not being heard or their questions are not being answered.

Patient engagement is a quality measure

Active patient engagement is a quality measure of the Institute for Healthcare Improvement’s Triple Aim Initiative, a framework targeted at optimizing health systems

“to improve care, improve population health, and reduce costs per capita.”

Opportunities to engage patients begins when they first contact your practice. And, it’s not just the physician who is responsible for fostering patient engagement. It is, in fact, a critical strategy that must be incorporated into all levels of your practice. That includes the receptionist answering the phone, the physician doing check-ups in the exam room, and everyone else in between.

At each level, the question that must be answered is “Does the patient feel his or her needs are being met?” For engagement to occur, everyone has to make the patient feel involved.

Through effectively promoting patient engagement, physicians and practice staff can enhance patient safety by reducing the likelihood of adverse outcomes. This also reduces the likelihood of a malpractice claim.

Related content: Re-shaping Patient Engagement in a Multicultural World

4 things you can do to improve patient engagement

To achieve engagement, physicians must be aware of the patient experience within their practices. Consider the following tips:

 1. Learn what your patients are experiencing

Doctors should conduct regular tests on their systems and processes to see what patients experience in each of the following scenarios:

        • when they call for an appointment
        • walk into the waiting room
        • or talk with office staff

Doctors can even use family members or friends as testers and solicit their feedback on the experience. From there, physicians should identify any system weaknesses and take appropriate measures to improve them.

2. Get feedback through surveys

Ask your patients to provide feedback about their whole experience with your practice and their satisfaction with their treatment. Measure patient engagement through Consumer Assessment of Healthcare Providers and Systems (CAHPS) surveys from the Agency for Healthcare Research and Quality (AHRQ)

  3. Create an open communication channel

When a patient is first seen at your practice, tell them they will get a survey to provide feedback about their experience with your practice. Be sure to use this as an opportunity to open the door to additional communication. In addition, make sure a patient feels comfortable airing complaints about any aspect of their treatment, your practice, or their relationship with you or your staff.

   4. Train your staff

Based on feedback from patients and on identified process weaknesses, conduct trainings to educate your staff on patient engagement and its importance at all levels within your practice.

Additional patient engagement strategies

Some additional strategies you can use to improve patient engagement and communication at your practice can be found in these videos:

Don’t Interrupt. Let Your Patient Talk

Successful Communication Techniques

Four Elements of Successful Communication Training

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. It was first published on May 1, 2016. It was reviewed, updated, and republished on September 9, 2019.


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Three million patients worldwide are currently connected to a remote monitoring device that sends personal medical data to their healthcare provider.1 Each year alone, 600,000 cardiac patients are implanted with pacemakers, one of the most common monitoring devices.2

Benefits of remote patient monitoring devices

Remote medical devices allow healthcare providers to closely monitor patients outside of the office. This helps doctors catch potential problems earlier, when they’re easier to treat, and could reduce the number of hospitalizations, improve patient health, and contain healthcare costs.

Remote monitoring devices perform routine tests—such as checking glucose levels for patients with diabetes or checking blood pressure for patients receiving cardiac care—and send the data to the patient’s doctor in real time over the Internet or through phone lines. The doctor can then assess the information and adjust the patient’s treatment plan as needed.

Liability risks of remote patient monitoring devices

Despite the many advantages, remote patient monitoring has a number of liability risks, including the following:

1. Data breach

Because remote monitoring devices transmit patient data, there is a risk of a data breach if the information is not properly encrypted. The Health Insurance Portability and Accountability Act (HIPAA) requires that all personal health information (PHI) be encrypted when transmitted, and providers who fail to properly safeguard PHI can face significant penalties.

2. Viruses and malware

Medical devices may be vulnerable to viruses and malware that can compromise patient privacy and the effectiveness of the device. Last year, the U.S. Food and Drug Administration (FDA) outlined serious cybersecurity risks for medical devices. The FDA noted that providers who use medical devices cannot rely solely on device manufacturers to ensure security—providers must also take steps to safeguard patient information within their network. These steps include ensuring antivirus software and firewalls are up to date, monitoring the network for unauthorized use, and reporting any medical device cybersecurity problems to the device manufacturer.

3.  Device malfunction

If a remote device fails or malfunctions, physicians may be named in the lawsuit against the manufacturer, under the claim that the physician failed to use the device properly. To help reduce this risk, physicians should stay up to date on the latest information for the device, including manufacturer’s warnings, the device’s safety record, and the device’s approved uses. Providers should also be aware of any FDA alerts or recalls and should thoroughly read all contracts with medical device vendors. Ensure that the contract outlines who is responsible in the case of device malfunction or failure.

4.  Inadequate staffing

Providers should also be aware of the need for additional staff members to handle the incoming data. In the case of a potential problem, these staff members should respond either directly to the patient or alert the appropriate professional for intervention. The amount of patient data from a remote monitoring device can be overwhelming, and medical practices often need a dedicated team to process the information and respond to it in a timely manner. Each practice should have written guidelines for:

>Times when the device will be monitored

>Which members of the care team will monitor the data at each point in time

>Under what circumstances the appropriate clinician will be alerted to a potential problem

5.  Alert fatigue

Providers should also be aware of the risk of “alert fatigue,” when an overwhelming number of alerts are received and it causes staff members to ignore, override, or disable them. Anytime an alert or a potential patient problem is ignored, the reason for that decision should be documented.

Related content:
Wearable Heart Rhythm Monitors. Which ones, When, and Why?
Update on Heart Rhythm Detection Devices for Remote Patient Monitoring

Patient selection

Patient selection is also an important issue, as successful remote patient monitoring is dependent on each patient’s motivation to actively manage his or her health, as well as the patient’s ability to understand and use the technology. Patients who are not tech-savvy may not be good candidates for remote monitoring. To help ensure patients effectively use remote devices, it is important to complete and document a thorough informed consent process and educate the patient on the following issues:

  • How to use the device.
  • Elements of the treatment plan, such as at what times the device will be monitored and how alerts will be handled by the healthcare team.
  • What device failure or malfunction looks like, and what the patient should do if that happens.
  • How to properly maintain the device.


  1. Report: 19 million will use remote patient monitoring by 2018. MEDCITY News. httpss:// Accessed June 26, 2018.
  2. Remote monitoring proven to help prolong life in patients with pacemakers. Heart Rhythm Society. httpss:// Accessed June 26, 2018.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

A successful and highly respected pediatrician with an unblemished record over decades of practice learns of a HIPAA breach by a member of his clerical staff. After an investigation reveals the employee is a repeat offender, she is terminated. Imagine the physician’s reaction when the employee’s attorney not only initiates a wrongful termination suit but also alleges retaliation, claiming the employee rebuffed sexual advances from the doctor.

To gain additional leverage, the former employee’s attorney submits a complaint of sexual harassment with the medical board and has the plaintiff file a criminal complaint about sexual battery. The attorney also sends a letter to the medical executive committee of the principal hospital where the doctor admits patients, resulting in a peer review investigation. Finally, the former employee blankets social media with an aggressive smear campaign.

This example demonstrates that healthcare providers are not immune from the growing number of reported incidents of alleged sexual harassment in the workplace. Accusers may be employees, patients, third-party vendors or visitors. Individuals alleged to have acted inappropriately may include co-workers, both supervisors and subordinates, professional staff—and even patients.

Repercussions of Harassment Claims

Shortly after complaints are filed, costly and potentially embarrassing investigations are often conducted by law enforcement, human resources departments, and administrative agencies. Depending on the nature and scope of the findings, serious adverse consequences and often irreparable harm to a person’s reputation may follow, including:

  • Criminal prosecution.
  • Civil litigation with the potential for substantial damages.
  • Licensing board actions that may impose limitations on an individual’s continued privilege to pursue his or her profession.

Adopt and Enforce Zero Tolerance

Given the risks, heightened awareness, and increased scrutiny, healthcare practitioners and facilities are strongly encouraged to develop and consistently enforce a zero-tolerance policy. Protocols must be written, periodically reviewed, and updated as necessary, detailing:

  • The types of conduct that will not be tolerated, regardless of the identity of the alleged perpetrator.
  • A clear methodology for reporting claimed instances of wrongdoing.
  • The process to be followed in investigating complaints, and rules that should be observed to help ensure that confidentiality and due process are appropriately protected.
  • Documentation to be completed and maintained.
  • The range of sanctions, up to and including termination, for both employees and patients, should the allegations ultimately be determined to be true.

Staff should receive proper training as part of the on-boarding process of each new employee and on a regular basis thereafter. Offices should develop and retain attendance sign-in sheets of such training in the regular course of business to demonstrate, in the event of a subsequent problem, the good faith, and due diligence as continuing efforts of the clinic, provider or facility to comply with federal and state requirements.

It is recommended that healthcare facilities, clinics, and other professional offices institute a process of publishing their zero-tolerance policy towards harassment. This can be achieved in employee onboarding documentation, professional employment contracts, conditions of treatment or admission, third-party vendor agreements, website notices, and even office signage.

Be Sure You’re Covered

Healthcare providers are also strongly encouraged to consult with their personal or corporate attorney to understand the potential financial risks of claims involving allegations of sexual harassment or misconduct. They should then confer with their insurance agent or broker to determine proactively what coverages might be available in their respective states to protect the provider in the event of such a claim.

Policy language and state regulatory requirements often vary from jurisdiction to jurisdiction. Most practitioners carry professional liability coverage in the event of a claim for medical malpractice. Not uncommonly, however, medical professional liability policies specifically exclude coverage for acts of sexual misconduct committed by a physician against a patient. Depending upon the professional liability carrier, the physician may be provided with a courtesy defense covering the costs of legal fees and expenses, but no payment for any indemnity incurred in the event of an adverse jury verdict.

It’s also prudent to consult with insurance brokers and agents about the availability of Employment Practices Liability Insurance (EPLI). EPLI may provide coverage for certain types of workplace harassment, which may include sexual misconduct involving the policyholder and an employee.

And finally, claims of inappropriate sexual behavior against a physician or other licensed healthcare practitioner may result in administrative proceedings by a state medical board or the privileges committee of a hospital or other facility regulated by The Joint Commission. Endorsements are widely available as part of medical professional liability policies to pay legal defense costs in the event of an investigation or subsequent disciplinary hearing.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

 Medical practices and facilities are depending more and more on cloud storage because it gives users the ability to access data across a variety of electronic devices while eliminating the costs and difficulties associated with maintaining a physical storage system.

What exactly is the cloud?

Cloud storage is a network of remote servers that allow for centralized data storage and online access to these resources. Your files are stored on a server connected to the Internet instead of being stored on your own computer’s hard drive. This eliminates the need to purchase hardware equipment to store files or to upgrade your hardware to get extra storage space—or the need to delete old files to make room for new ones. The cloud is convenient and cost-effective, providing a way to automatically back up your files and folders.

Despite these benefits, recent publicity around hacks of public cloud storage websites has raised concerns about whether it is appropriate for medical practices and facilities to store health records and information in the cloud. Cybercriminals target healthcare organizations more than any other form of business because criminals find personal patient information particularly valuable to exploit.


Providers must ensure they are compliant with the Health Insurance Portability and Accountability Act (HIPAA) in how they secure patient protected health information (PHI). The repercussions of a breach can be daunting under HIPAA.  A business that suffers a breach of unencrypted PHI must report the breach to the U.S. Department of Health and Human Services’ Office for Civil Rights.  If found negligent, the business can face fines and damage to its reputation.

Is cloud storage a safe way to store PHI?

Is cloud storage a safe way to store PHI? The answer is a qualified “yes”. The cloud can be an appropriate method of data storage, but only under the right circumstances.

As with many new technologies, the safety level of the cloud, and whether it’s appropriate for use, depends on the vendor. To be sure your data is safe and secure when you hand it over to a cloud service provider, you need to research each vendor you consider and do appropriate due diligence. There are several important questions you need to answer and issues you have to keep in mind:

  • Are the vendor’s security standards appropriate? You have to research each vendor you choose. Make sure the company has a good reputation and solid security policies. You are entrusting the provider to store your information, so the extra time spent researching and comparing providers and their security practices will pay off in the long run.
  • How much data will you be storing? Many companies charge by the amount of storage you use, so understand what your needs are before choosing a vendor. Ensure the vendor can handle the amount of data you would like to move to the cloud.
  • Ensure your data is encrypted when being uploaded to or downloaded from the cloud. This is also your responsibility. Make sure your browser or app requires an encrypted connection before you upload or download your data. Also ensure all devices that contain PHI (laptops, desktops, thumb drives, and centralized storage devices) are encrypted.
  • Make sure your data is encrypted when stored in the cloud. This is perhaps the most important consideration. Data protected by law, such as medical information or personal identifiers, should never be stored in the cloud unless the storage solution is encrypted.  Only selected members of your organization should be able to decrypt the data, and your organization should create policies detailing under what circumstances information can be decrypted.  Determining whether the stored data will be encrypted requires a careful review of the specific terms of service within your agreement with the cloud service provider. Many cloud service providers store data on a cloud server with no encryption, meaning anyone who has (or can get) high-level access to that server will be able to read your files.
  • Understand how access is shared in your cloud folder. Many cloud storage providers allow you to share access to your online folders. Be familiar with the details on how that sharing works. Can the user read-only or can the user edit the file? Will you know who the last person to edit a file was? Awareness of who has access and how is critical to monitoring activity within your stored data.
  • Understand your options if the cloud provider is hacked or your data is lost. Virtually all cloud service providers require a user to sign an agreement that contains a “terms of service” provision. In most cases, these agreements provide that the user has very little, if any, remedy if a hack or a loss of data occurs. Pay attention to what rights you have given up and make sure you are comfortable with doing so.

Cloud storage can be a valuable asset to medical practices and facilities, but the decision to use the cloud to store HIPAA-protected records should not be made until substantial due diligence has been performed on the cloud service provider. Make sure you have absolute confidence in the service provider’s ability to keep the data safe and secure.

This post was sponsored by The Doctors Company

In medical school, students are trained on skills that will make them better future physicians, team members, and caregivers. It’s a curious thing—once we make headway into our medical careers and our days are filled with patient visits and paperwork, we rarely have the opportunity to assess our skill sets in the same way, despite the fact that new technologies and approaches to treatment have emerged since many of us attended medical school.

As a hospitalist at Mount Sinai Hospital in New York, New York, I’m part of a team that cares for moderately to severely ill patients at a major academic institution. I’m also a physician advisor, and I have the pleasure of teaching some of the youngest and brightest medical students, interns and residents at various stages of their careers.  I consider this the best part of my work, so I’m sure it comes as no surprise that I’m a firm believer in the importance of continuous learning.

That’s why I was so excited when I had the chance to participate in three standardized patient (SP) encounters training designed for me and my 22 hospitalist colleagues to improve our communication skills, funded by a grant from The Doctors Company Foundation.

Related Content: The Impact of Poor Communication on Medical Errors

What is a standardized patient encounter?

A standardized patient encounter is essentially a live simulation in a clinical setting with trained actors. To start the simulation, a physician is given a short prompt about the patient scenario. They may also be provided with some basic information such as a diagnosis or a relevant imaging study prior to entering the room.

Once the testing center provides a signal, physicians are allowed to enter the room.  An introduction about our role on the medical team is provided and a discussion ensues. The actors provide relevant history, incorporate true emotional responses to questioning and display any behavioral or physical prompts that a real patient would. This allows physicians to react in real time to the needs of the patient. The use of standardized patients can also be adapted to desired testing scenarios, whether in the realm of communication, clinical reasoning, or establishing a differential diagnosis.


Hospitalist-specific training

Like many hospitals, we have a program in place aimed at assessing how we educate students and younger physicians. But Mt. Sinai is the first hospital in New York that has established a program designed specifically to assess and address some of the unique communication challenges we face as hospitalists to improve patient care.

As hospitalists, we’ve never met patients or families before we must begin conversations at critical points of care. It takes sensitivity and particular thoughtfulness to create rapport and share substantial information with a hospitalized patient without having a prior relationship.

Through the training, my colleagues and I each encountered three different SPs in key scenarios: one at daily rounds, one upset over a missed diagnosis, and one at discharge, when the potential for errors and miscommunication is greatest. We were videotaped during the encounters for our personal review and received direct feedback afterward from the patient.


What did we learn?

We discovered that we as physicians have become great at taking care of patients, but we don’t have enough opportunities to investigate which elements of our day-to-day communication need adjustment—or what good behaviors need reinforcing.

It was extremely helpful for us to be able to watch the videos and ask ourselves, “Do I use medical jargon that’s hard for the patient to understand? Do I say things that aren’t warm and welcoming to the patient?” Then, by adding in patient feedback, we learned how we performed across these core domains, such as treating patients with courtesy and respect, listening skills, and explaining complex topics in an understandable way.

Strengthening these individual communication skills is paramount to improving patient comprehension, which in turn can improve patient follow-through on discharge instructions and reduce the risk of readmission. And as educators, our takeaways from the training can empower others in the healthcare system at large to better communicate with their patients.

Related Content: 9 Tips for Dealing with Difficult Patients

Setting a higher bar for communication

Mt. Sinai is proud to spearhead this innovative training effort in New York. In fact, since the initial date of the training, the three modules have expanded into a program run by The Morchand Center for Clinical Competence at the Icahn School of Medicine at Mount Sinai. So far, the Morchand Center has adapted the SP methodology for hospitalists to train 1,845 additional residents in various specialties across New York City.

Nationwide, the entire medical community stands to benefit from continuous physician learning and partnerships that facilitate it, like The Doctors Company, which make trainings like this possible. At a time of tremendous change for healthcare, having a well-trained physician workforce is more important than ever before. Our patients deserve to be cared for by physicians whose knowledge evolves alongside the transformation of care delivery.

Physician learning must keep pace with our industry’s transformation. By setting the bar higher for what patients should expect on a patient communication level, we increase patient safety, raise levels of patient satisfaction and drive quality care—no matter what the future of healthcare delivery looks like.


TAKEAWAY: Tips to Improve Hospitalist/Patient Communication

  • Sit down to establish “eye level” communication.
  • Introduce yourself and your role.
  • Avoid using medical jargon, such as e.g. “upper respiratory infection” instead of “cold.”
  • Ask patients to explain their understanding of the care being provided.
  • Always close an encounter by asking a patient if there is anything they would like to discuss.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

The Doctors Company recently analyzed 67 malpractice claims* against nurse practitioners (NPs) that closed over a six-year period from January 2011 through December 2016. These claims arose in family medicine (FM) and internal medicine (IM) practices. To provide context, we compared the NP claims with 1,358 FM and IM claims that closed during the same time period. If a claim was against both the FM or IM physician and the NP, we eliminated it from this study to avoid counting the same claim twice.

We included cases that closed within the study’s time frame regardless of how the claim or suit was resolved. This approach helped us to better understand what motivates patients to pursue claims and to gain a broader overview of the system failures and processes that resulted in patient harm.

Our approach to studying these malpractice claims began by reviewing plaintiffs’/patients’ allegations, giving us insights into the perspectives and motivations for filing claims and lawsuits. We then looked at patients’ injuries to understand the full scope of harm. Physician and nurse practitioner experts for both the plaintiffs/patients and the defendants/nurse practitioners/physicians reviewed claims and conducted medical record reviews. Our clinical analysts drew from these sources to gain an accurate and unbiased understanding of the events that lead to actual patient injuries.

Related Content: An Expert’s Guide to Surviving Physician Lawsuits

Nurse practitioner or physician reviewers evaluated each claim to determine whether the standard of care was met. The factors that contributed to claims included clinical judgment, patient factors, communication, clinical systems, clinical environments, and documentation. Our team studied all aspects of the claims and, using benchmarked data, identified risk mitigation strategies that nurse practitioners and their physician partners can use to decrease the risks of injury, thereby improving the quality of care.


State differences in NP scope of practice

We did not take the following state differences in NP scope of practice (SOP) into consideration because the number of claims in each category would likely lack statistical significance:

  • In 23 states and Washington, DC, NPs have full authority to practice independently. They can evaluate, diagnose, and manage treatment—including ordering and managing medications.
  • In 15 states, NPs have reduced practice authority that requires a regulated collaboration agreement with a physician.
  • In 12 states, NPs have restricted practice authority that necessitates supervision, delegation, or team management by a physician.


The most common patient allegations

When NPs worked in FM and IM practices, the three most common claim allegations against NPs accounted for 88% of their total claim allegations. The top three allegations in claims filed against FMs and IMs accounted for 89% of their total claim allegations.

The diagnosis- and medication-related allegation percentages were similar for both NPs and primary care physicians, while medical treatment–related allegations were more common for primary care physicians (see FIGURE 1). The small number of NP claims may lack statistical significance.
NP vs Physician malpractice 700 x 208



The adoption of the electronic health record (EHR) has negatively affected physician satisfaction and practice workflow. As a consequence, physicians are increasingly using medical scribes to untether themselves from their EHRs, enhance efficiency, and reduce burnout. Patient satisfaction also increases with the use of scribes due to improved physician-patient interactions during office visits. A growing body of evidence indicates that NPs provide similar benefits (i.e., they provide high-quality patient care, with patient satisfaction scores similar to those of physicians), which allows physicians to see more patients and focus on those with complex management or diagnostic problems.

Increasingly, the growing need for primary care services will be filled by NPs, not primary care physicians. Subject to individual state regulatory guidelines, NPs may take patient histories; conduct physical examinations; order, supervise, perform, and interpret diagnostic and laboratory testing; prescribe pharmacological agents; and render treatment. In 2017, there were approximately 234,000 licensed NPs in the United States, with 86.6 percent certified in primary care and 95.8 percent prescribing medications.1

Approximately 8,000 new primary care physicians enter practice each year. By 2020, it is estimated that about 8,500 will retire annually. As the number of primary care physicians declines, their services will increasingly be provided by NPs.2 An estimated 23,000 new NPs completed their academic programs in 2015–2016.1 It is projected that by 2025, physicians will represent 60% of the family practice workforce, and NPs will represent 29% (almost one-third).2

For these reasons, it is appropriate to review NP medical malpractice claims and compare them with those of primary care physicians to see if any unique NP risk management issues need to be analyzed. Although this NP claims analysis is statistically limited by the relatively small number of NP claims, it shows that diagnosis-related and medication-related allegations are similar for NPs and primary care physicians—as are the final diagnoses in claims with diagnosis-related allegations.

Medical treatment–related allegations are more frequent for FM and IM, while patient assessment issues, patient injury contributing factors, patient injury-related diagnoses, and injury severity are similar. The key differences are that NPs have lower claims frequency, and their medication-related and medical treatment–related claims have lower indemnity payments. The indemnity payments for diagnosis-related claims are similar for NPs and physicians.

An allegation of failure or delay in obtaining a specialty consultation or referral often occurred when an NP managed a complication that was beyond his or her expertise or SOP.

The alleged failure to perform an adequate patient assessment often occurred when an NP relied on the medical history or diagnosis in a previous medical record rather than performing a new, comprehensive exam.

Many NP malpractice claims can be traced to clinical and administrative factors:

  • Failure to adhere to SOP
  • Inadequate physician supervision
  • The absence of written protocols
  • Deviation from written protocols
  • Failure or delay in seeking physician collaboration or referral

Many of these factors can be remedied if physicians are clear about the nurse practice laws and regulations within their state and they support the NP in providing care within the SOP. The quality program within the practice should monitor the practice of the NP to ensure compliance with the laws and regulations of that particular state.

*A written demand for payment

  1. NP Fact Sheet. American Association of Nurse Practitioners Website. Accessed November 30, 2017.
  1. Bodenheimer T, Bauer L. Rethinking the primary care workforce—an expanded role for nurses. N Engl J Med. 2016;375(11):1015-1017.

This post was sponsored by The Doctors Company.

A physician incurs nearly $200,000 in medical student loan debt, graduates in the top 10% of her class, and dedicates the past 14 years to providing care to patients. One day, out of the blue, the local sheriff’s office serves her with a lawsuit. Perhaps it is regarding a familiar patient, or maybe a patient the doctor cannot recall. Either way, her mind immediately leaps to: “What did I do wrong?” After the initial shock, the physician is flooded with emotions—fear, anger, betrayal, frustration, anxiety, humiliation, embarrassment. Even shame.


Chances are good that as a physician, you will find yourself in a similar situation. On average, each physician spends 50.7 months, or approximately 11% of an average 40-year career, on resolving medical malpractice cases—the vast majority ending up with no indemnity payment. That’s the conclusion of a study by the RAND Corporation based on data provided by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. These findings suggest it is not a matter of if you’ll be sued, but when―undermining the medical-school white-coat myth that if you do well in school and rely on your education, skill, and training—you needn’t worry about malpractice.

Related Content: An Expert’s Guide to Surviving Physician Lawsuits

By the age of 65, more than 75% of physicians in low-risk specialties and 99% of physicians in high-risk specialties have experienced a claim. Although it’s a reality that the majority of physicians will face a malpractice claim, few are prepared when served with a lawsuit. I routinely survey up to 50 physicians at seminars devoted to litigation preparation―only two or three say they received relevant information about medical malpractice in medical school.

Steps to take if a claim is filed against you

I make it a point to advise doctors to take these steps if a claim is filed against them:

  • Contact your medical malpractice carrier. Typically, a lawsuit will name multiple defendants to include various treating physicians as well as medical facilities where alleged negligent care was rendered. The pool of defense attorneys who specialize in medical malpractice defense is a small one. Many malpractice carriers draw from the same pool of attorneys, so it is important to notify your carrier as soon as possible to ensure the right defense attorney is retained on your behalf. The defense team is referred to as a “three-legged stool”, including the physician, claim specialist, and defense attorney. All three need to work in unison to obtain the most favorable result.
  • Build your defense. The attorney representing your patient has likely already developed a good portion of their case before you were ever aware of its existence. Therefore, it is critical you be an active member of your defense team to begin building your defense.
  • Be prepared for extended periods of perceived inactivity. The legal process is inefficient and impossible to control. The litigation process typically lasts two to five years, with claims being filed a year to two years after a negative event of the date of discovery of an injury—depending on state laws. There will be flurries of activity, followed by long periods of perceived inactivity. Trust that your defense team is continuing to work on your behalf. Depositions are often scheduled, canceled, and re-scheduled. Trial dates are routinely continued beyond the control of defense counsel. Knowing in advance these inefficiencies and inconveniences occur may alleviate frustration in the process.
  • Understand the plaintiff’s strategy. Don’t believe that once you “educate” the plaintiff or, more importantly, the plaintiff attorney on the medical facts, they will drop the suit. The only time you will be given the opportunity to educate and explain the care you provided is at trial. The plaintiffs’ bar is very skillful at taking testimonial “sound bites” and portions of the medical records to fit their narrative. By understating the plaintiff’s strategy, you can assist in preparing an effective defense.
  • Become fully engaged in the process. The key to ensuring a successful defense is preparation. Those physicians who managed to survive litigation did so by becoming fully engaged in the process—approaching their case as an academic exercise as if they are sitting for a board exam.
  • Get professional coaching on how to be an effective defender. Physicians routinely describe the litigation process akin to a rollercoaster ride. Every physician will have some emotional reaction to becoming a defendant in a malpractice lawsuit. It’s important to identify and become aware of your emotions in order to develop appropriate coping mechanisms. Physicians who develop effective coping mechanisms have a greater chance of successfully navigating the rigors of litigation.
  • Work on alleviating stress. Remember you are not alone. Focus on the multitudes of patients you help daily. While you can’t divulge details of the litigation to family and friends, talk to them about how the claim is affecting you. And continue to participate in the personal interests and activities that provide you with joy.

To be thoroughly prepared, you must know the medical record. You must also practice for your deposition, know your deposition testimony, and read depositions of other defendant physicians and experts―all while caring for your patients and yourself. This is no small task, but successfully defending your professional reputation is worth it.

For more tips, read Malpractice Claims Consume Years of a Physician’s Career.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

In your neighborhood, “keeping up with the Joneses” may be a common pursuit, or maybe you are right on the heels of those Smiths or Johnsons. While being a subject of a trivial idiom in this context is harmless, having a last name like Jones, Smith, or Johnson could be enough to catapult you into a medical mistake nightmare. Especially for patients with common last names, incorrect identification in hospitals and other healthcare settings has become a serious concern.

Recently, the ECRI Institute Patient Safety Organization reviewed 7,600 wrong-patient events over a 32-month timeframe and found that 9% of the identity mishaps caused direct harm or death to a patient. Patients trust care providers with their greatest gift—their life, itself—and these organizations must be proactive about safeguarding patient identity and accurate in their records matching. Reasons for the mix-ups and their timing are varied, but the burden of responsibility is on the healthcare provider.


Which Mrs. Smith are you?

As more health systems and independent practices go digital with patient records, there are more opportunities for slip-ups when transferring patient data. Often, front desk staff at a provider’s office will try to find a patient in the system by name or birthdate, but if there is not an exact match with the data being entered, the employee will simply create a new patient file. For example, Harris County Hospital District in Houston found 2,488 patients named “Maria Garcia” in their system, and 231 of them share the same birthdate.

Different Electronic Medical Record (EMR) systems often have different ways of filtering and presenting the same data. Some institutions use a middle initial, while some omit it or require spelling the middle name out. There is a frequent discrepancy on how systems handle suffixes such as “Jr.” or “Sr.” in a name, and hyphenated names. Additionally, basic clerical mistakes or mistypes—particularly in stressful or hurried circumstances—result in inaccurate data entry with social security numbers, birthdates, or name spelling. If a patient changed her last name due to marriage or divorce or moved, a staff member may not be able to locate her in the system.

When a “new” patient file is added to the records system, it now represents just a small portion of the patient’s medical information and history. Rather than consulting a complete medical record, a physician may be looking at a fragment of the patient data. If important health information is not included in the file, the patient’s health is at risk. One clear example is when an unconscious patient in critical condition is brought into the emergency department and hospital staff cannot confirm if he or she has a pre-existing condition or medication allergy. Creating a new patient record when no match is found in the system can do more harm than good in the long run.


Whose MRI shows cancer?

While creating duplicate records can create challenges of physicians acting on incomplete information, incorrectly attributing medical records to an individual can be even worse—leading physicians to make decisions for one patient based on another patient’s information. While patient registration and admittance challenges—especially in light of disparate EMR systems—are problematic, 72.3% of patient identification errors happen during clinical encounters, including diagnostic procedures such as surgical operations and general treatment.

In Massachusetts alone, there have been 14 instances from 2011-2016 during which care providers at facilities performed a procedure on the wrong patient, according to state records. One of these cases includes an investigation alleging a surgeon removed a kidney from the wrong patient based on what was seen in another patient’s scans.

While nurses, physicians, and other clinical staff members theoretically have protocols in place to check and confirm a patient by name or birthdate, these methods are often not foolproof to ensure the right patient is receiving the right service. The Patient Safety Network highlighted patient mix-ups at University of California San Francisco Medical Center and found that over a three-month period, inpatient services had two patients with the same last name on 28% of the days. Name or birthdate checking is simply not sufficient.

In addition to endangering patient safety, the occurrence of “the right procedure, wrong patient” is also a financial drain for hospitals. Redundant or unnecessary tests, incorrect diagnoses, incorrect provision of services, and unnecessary or lengthened hospitalizations increase hospital costs across the U.S. Patient misidentification costs hospitals an average of $17.4 million each year in denied claims.


The need for action

The development of a national patient identifier—tied specifically to every single patient—has been a desired course of action since (at least) the 1990s and the enactment of HIPAA. Logistical and financial challenges relating to interoperability and privacy have been hindrances ever since. The solution requires a method to validate and authenticate patient identity in a safe and secure manner.

Assigning a National Patient Identifier to each patient would ideally involve statistical matching and a referential database that is continually updated so providers can have the most confidence in the resulting records. The ability to assign national patient IDs that enable data sharing across systems, a key component for identity management, already exists. What are we waiting for?

Communication breakdowns are a frequent risk management finding in malpractice claims. The Doctors Company identified communication as a contributing factor in 27% of claims closed from 2012 through 2016. Of those claims, communication was further subcategorized into communication between patient or family and providers, communication among providers, and communication involving technology, including telephone, e-mail, facsimile, Internet, and telemedicine.


Communication with patient or family

Ten days post-hospitalization, an elderly woman with an indwelling urinary catheter presented to the clinic with her daughter to have the catheter removed. As the patient was leaving after the nurse removed the catheter, the daughter asked the nurse if something could be done about her mother’s back pain from lying in bed. As the nurse ushered them out of the room, she assured the patient and her daughter that she would discuss the complaint with the physician. The nurse failed to pass on the complaint. Later, the patient fell at home and was admitted to the ICU with septicemia from an upper urinary tract infection.

The nurse’s communication lapses included failing to ask the patient questions about her back pain and failing to communicate the message to the provider. Had further communications with the patient and the provider taken place, the cause of the back pain could have been explored and a timelier diagnosis could have been made on the upper urinary tract infection.

An essential part of effective communication is taking time to educate patients and families about medications, activities, follow-up appointments, and contacting the physician if concerns arise, such as the continuing back pain in this case example. Developing thorough communication takes practice and time. It is more than relying on others or going through mechanical motions.

When possible, speak with the patient when the family is present. Implement Ask Me 3, the National Patient Safety Foundation’s time-efficient, effective tool that encourages patients to participate in their own healthcare by understanding the answers to three questions:

  1. What is my main problem?
  2. What do I need to do?
  3. Why is it important for me to do this?


Communication among providers

Communication failures among providers may be attributed to ineffective closed-loop communication, information lost in the transition of care, or failure to establish clear lines of responsibility. The examples below illustrate these types of errors.

  • Closed loop communication: A patient was scheduled for shoulder surgery. The informed consent was obtained, and the arm was marked by the surgeon to identify the correct surgical area. In the operative suite, the perioperative nurse placed the blood pressure cuff on the patient’s left arm, covering the identifying mark. Fortunately, the correct shoulder was reidentified during the time-out procedure and a wrong-site shoulder surgery was averted.
  • Transitions in care: A radiologist identified a mass on a patient’s kidney; he called the rural clinic and left a verbal message with a staff member to have the provider return his call as soon as possible. The staff member forgot to relay the message. Later, the radiology report was faxed to the clinic and was promptly filed in the patient’s chart for review at the next visit scheduled in six months. The radiologist assumed the clinic had received and reviewed the faxed report.
  • Clear lines of responsibility: An anesthesiologist and a surgeon failed to communicate regarding oxygen use around the surgical field with the simultaneous use of electrocautery during a procedure. The patient sustained extensive facial burns requiring skin grafts. The defense expert was adamant that it was the shared responsibility of the anesthesiologist and the surgeon to protect the patient from a potential fire injury by communicating verbally, rather than simply assuming that the other practitioner recognized the fire hazard.

Communication, both verbal and written, requires repetition and continuous evaluation to identify failure points for refinement. Implementing The Joint Commission’s Universal Protocol to reduce the possibility of wrong site, wrong person, or wrong procedure may help minimize errors, but it should be reviewed periodically for consistency and application as habits and staff change. Policies should require marking the specific surgical site, such as the shoulder, instead of marking a general area, such as the upper arm.

When performing the time-out immediately before starting a procedure or making an incision, all procedure team members should actively participate in discussing the patient’s care. This should include any anesthesia concerns for the patient during the procedure rather than making assumptions based on prior experience and circumstances. Every caregiver has the responsibility to speak up.1

Inadequate lab and diagnostic test tracking is another leading cause of patient injury. Processes should be evaluated frequently for improvement in communication from the time the test was ordered until the time the results were reviewed, documented, and shared with the patient. Not only should an internal system and process be implemented, but we also recommend that providers engage patients to follow up by calling the clinic if they do not receive results.

Related Content: Actors and the Art of Better Patient Communication

Communication involving technology

While performing a procedure to repair a torn tendon, the surgeon inadvertently severed a small nerve. A subsequent surgery was scheduled for the nerve repair. When the patient became dissatisfied with the results of the nerve repair, it was discovered that the chart had no notes documenting discussions of the risks, benefits, and likely outcomes of the nerve repair surgery. No formal office visit had occurred. The discussions had taken place via text messages sent to the physician’s cell phone. The messages had not been entered in the patient’s medical record.

Review or develop clear communication guidelines when using technology (telephone, e-mail, facsimile, the Internet, or telemedicine) while keeping patient privacy in the forefront. All communications involving patient care must become part of the patient’s medical record.

To enhance efficient communication among providers of a patient’s status, consider using the SBAR (Situation Background Assessment Recommendation) format. SBAR is a standardized communication method that provides for the transfer of vital, clear, and relevant information about a patient’s condition in an organized manner in any setting.

By identifying and eliminating the most frequent communication breakdowns in the healthcare setting, errors leading to a patient injury can be reduced.

1. The Universal Protocol for Preventing Wrong Site, Wrong Procedure, and Wrong Person Surgery. The Joint Commission website. httpss://

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

Today, 90% of non-controlled substance medications are e-prescribed, while only 14% of controlled substance medications, including prescription opioids, are e-prescribed. This means that 86% of controlled substance prescriptions are still hand-written on a piece of paper and handed to a patient.

This is a problem.

Between 3% and 9% of drugs that are diverted for abuse are tied to fraud and/or forgery of paper prescriptions. This is a blind spot we can no longer live with.


The rise of a full-scale epidemic

More people than ever are dying of opioid overdose and the latest figures show that opioid addiction rates continue to rise, even among older Americans. Since 1999, deaths from prescription painkiller overdose have quadrupled. And in 2015 alone, opioid overdoses killed more than 33,000 Americans. Beyond the devastating loss of life, prescription opioid abuse costs the United States $55 billion in health and social costs each year, according to a 2011 study by Birnbaum, et al.

The crisis was recently declared a public health emergency by President Trump to provide additional resources to combat it with greater urgency.


Taking paper out of the game

Paper prescriptions are not only prone to inaccuracy and quality issues, they’re also vulnerable to theft and forgery. One way to make certain the right person is getting the right medication is to replace paper prescriptions with electronic ones.

E-Prescribing of Controlled Substances (EPCS) provides both security and convenience from the point of prescribing to the pharmacy dispensing medications to the patient. Keeping paper prescriptions and doctors’ credentials out of the hands of dealers and people suffering from addiction will save lives.

In addition to e-prescribing, other digital tools can help address fraud and abuse by providing clinicians with a more complete and timely picture of their patients’ clinical and medication histories. The technology exists today to

  • Give healthcare providers a patient’s prescription and visit history to identify potential doctor shopping.
  • Ensure that only those who are authorized to prescribe controlled substances are able to do so.
  • Help patients receive and adhere to their medications, and
  • Inform providers if a patient was recently treated for a drug overdose.

We do not have a technology issue. We have a utilization issue.


Change is coming

The Surescripts network is taking action to fight the opioid epidemic, resulting in increased EPCS and Medication History utilization and enablement.

In 2016, there were 1.08 billion requests from providers for their patients’ medication history data and there were more than 45 million EPCS transactions (a 256% increase over 2015). EPCS enablement among prescribers nearly tripled from 5.7% in 2015 to 14.1%, and pharmacy enablement increased nearly 10% from 80.6% in 2015 to 90.3% in 2016.


Mandates are helping

Policymakers are taking action to drive nationwide adoption of EPCS and to stop opioids from ending up in the wrong hands. Several states, including New York, Maine, Virginia, Connecticut, North Carolina, and Rhode Island, have passed legislation to mandate EPCS. Now, these states have a much more secure process either in place or in the works.

State regulations, like New York’s i-STOP law, made an immediate and significant impact on driving adoption and utilization among prescribers. In 2016, the year the legislation was enacted,

  • Prescriber enablement in the state increased by 45.5% (with 72% of prescribers enabled).
  • Pharmacy enablement in the state increased 7% (with 98% of pharmacies enabled).

The portion of controlled substances prescribed electronically increased 54.2% (with 91% prescribed electronically) according to Surescripts 2016 National Progress Report, a summary of the network and the industry’s progress in using health IT to improve healthcare.

And at the federal level, the Every Prescription Conveyed Securely (EPCS) Act was recently introduced in the House of Representatives that would require that all controlled substances under Medicare Part D be prescribed electronically by 2020.


Where we (all can) come in

With the right technologies at our disposal today, we have the opportunity and the responsibility to fight the opioid epidemic. These tools deliver the right data to the right place at the right time and empower both clinicians and pharmacists to make informed decisions and deliver safe, affordable, and high-quality care.

But to truly unlock the full potential of these tools, we have to appreciate the “network effect”, which means that only as allies coming together from every facet of the healthcare system will we be able to affect positive change when it comes to opioid abuse.

For our part, we’re using the network alliance we built 17 years ago to replace paper prescriptions with electronic ones in order to answer some of the most pressing questions that healthcare professionals ask when making care decisions about their patients, like:

  • What medication is my patient taking?
  • What is my patient’s clinical history?
  • Is my patient adhering to their medication therapies or taking a medication inappropriately?
  • Has my patient received care or medications from other providers?

The answers to these everyday questions are relevant to the opioids conversation because the information conveyed is critical to preventing fraud, addiction, overdose, and death. It’s not the singular solution to the whole problem of opioid abuse in the U.S., but it puts the technology solutions we have in our hands today on the front lines, where they can do the most good.

More than ever, physicians are focusing on treatment plans that include the kind of care patients need at home. However, physicians face potential liability when patients refuse help that is offered or neglect to follow up as instructed.


A case of failure to follow instructions

If a patient sues, even a verdict in favor of the physician does not negate the time, expense, and emotional impact of a lawsuit. Consider this example: A 67-year-old male with a history of obesity, hypertension, high cholesterol, atrial fibrillation, and cardiovascular disease had seen the same physician for 20 years. During one hospitalization, the patient was put on the blood thinner Coumadin. The physician and the discharge nurse both educated the patient and his wife about the risks of Coumadin use and the importance of having blood work done every month.

Nevertheless, the patient did not keep the first appointment for the monthly blood test (INR). The physician’s staff called to schedule a follow-up visit, but the patient did not return the call. Two days following the call, the patient fell at home. His wife took him to the emergency department, where she told the staff that she had been unable to drive him to his appointment for blood work, but she had made sure he took his Coumadin as prescribed. The patient’s INR was extremely elevated, with a reading of 8.8. The patient was diagnosed with a bilateral subdural hematoma and underwent a bilateral craniotomy. He was discharged home but due to problems with his coordination and confusion, he visited the emergency department several more times over the next few months.

The patient sued for malpractice, claiming the physician failed to properly manage the medication regimen and failed to monitor blood levels, resulting in the fall, subsequent injury, and poor recovery. He also claimed the doctor failed to warn him of the risk of bleeding from the Coumadin.


Patient behaviors contribute to bad outcomes

The case went to trial. Because of the doctor’s thorough documentation, the jury agreed that he had properly educated the patient and made the right resources available to monitor the effects of the Coumadin. The jury found that the patient’s failure to schedule his lab appointments and follow-up appointment caused the injury and, therefore, found in favor of the physician.

While this patient failed to follow physician instructions, other homebound patients simply refuse any help. A recent study found that between 6% and 28% of patients eligible for home healthcare refuse these services, and similar trends are seen with other types of assistance for patients at home. Patients often say they are managing just fine and don’t need help, while others don’t want strangers in their homes or they worry about the cost of co-pays for home care. That means some patients are not getting the follow-up and supportive care that the doctor outlined in the care plan. And when the patient doesn’t follow up, it can put the physician at risk.

Patient behaviors were contributing factors in 25% of internal medicine closed claims studied by The Doctors Company. Of these factors, noncompliance with the treatment plan was the most common, accounting for 9% of internal medicine claims. This was followed by 7% of claims resulting from patients failing to make a follow-up appointment or referral, and 4% of claims resulting from patients failing to take medications as prescribed.


Tips to reduce risk

The potential malpractice risks to physicians are increasing as more care is moved from a healthcare setting to the patient’s home. The following are tips to reduce risks when treating homebound patients:

  • Conduct a risk analysis to determine how likely the patient is to comply with instructions. Consider the following: patient’s age, ability to drive, socioeconomic status, whether the patient lives alone, and history of failing to comply with appointments or medication instructions.
  • Document that:
    • The patient received proper discharge instructions.
    • Resources were made available to overcome compliance challenges. The physician or practice made a good-faith effort to follow up and intervene if the patient was not in compliance.
  • Schedule the follow-up appointment before the patient leaves the office. Give the patient contact information for community home health resources.
  • Educate the patient about why community resources are provided and draw a distinction between what is and is not offered.

Patient reluctance to follow the discharge plan is often caused by lack of understanding about what type of follow-up care is needed. Taking time to document patient discussions gives homecare providers valuable information to ensure patients are following the plan—and will also demonstrate, in the event of a lawsuit, the high quality of care provided.


This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

Six-year-old Caleb Sears died after receiving anesthesia for a dental procedure. The oral surgeon was busy operating when Caleb stopped breathing. He was unable to place a breathing tube so that Caleb’s brain could get the oxygen it needed.

After Caleb’s death, his family determined that no other family should have to experience such a devastating loss, worked with the California Legislature to create Caleb’s Law. The original version of the bill would have required:

“all oral surgeons and dentists performing deep sedation or general anesthesia on minors in California have a licensed anesthesiologist or certified registered nurse anesthetist present during the procedure, whose sole role is to monitor the patient.”

As often happens, the law was weakened during the legislative process, but a modified version was signed into law and became effective in California as of Jan 1, 2017. It updated the adverse event data collection, instituted a disclosure that anesthesia in dentistry is practiced differently than in medicine, and asked that the California dental board do a study on the safety for children undergoing anesthesia in dentistry and make recommendations to improve safety.

Related Content: Designing a Safer Breathing Tube for Patients and Caregivers

What has happened since then?

The complete Dental Board met last December and discussed the study and proposed recommendations. One of the recommendations they voted to approve required, for children under age seven undergoing deep sedation or general anesthesia, that there always be a dedicated qualified anesthesia provider who is tasked with the administration and monitoring of the patient through the recovery period.

This anesthesia provider could be another qualified anesthesia-trained dentist, a physician anesthesiologist, or a certified nurse anesthetist. Other recommendations were a requirement that capnography be used to continually monitor the level of CO2 in the child’s blood, a sensitive indicator of whether there is adequate ventilation of the body. The Board also recommended that dentists who want to maintain a permit to sedate children to the deepest levels of sedation should perform a certain number of sedations on young children each year to remain active.

A bill to codify these Dental Board recommendations was introduced by Assembly Member Thurmond this year for legislative session 2017. This bill was sponsored by the American Academy of Pediatrics, CA (AAP-CA) and supported by the California Society of Anesthesiologists and the American Society of Dentist Anesthesiologists.

Simultaneously, the dental lobby, led by the California Association of Oral and Maxillofacial Surgeons, introduced a competing bill that they claimed codified “some” of the recommendations. Notably, the dental lobby’s bill did not require a separate trained anesthesia provider to monitor children, even for the highest risk and youngest patients, ages 0 to 6-years old. Their bill and current practice would continue to allow for an unlicensed dental assistant to monitor patients of all ages.

The dental assistant has many important jobs in the dental office but is not qualified to monitor patients undergoing deep sedation and general anesthesia. A dental assistant likely does not have any formal physiology education and sometimes their formal education stops at high school. They cannot interpret an EKG, recognize when there is an issue arising, or even help to rescue a patient from a pending disaster.

Anesthesia providers know that things can and do happen when people are given anesthesia drugs. Many studies have continued to show that the ability to recognize and to respond to an emerging disaster is the crucial skill needed to avoid adverse outcomes. This is why anesthesia experts throughout the country are pushing so hard to have anesthesia-trained individuals monitoring children undergoing deep sedation and general anesthesia in dental offices.

Although the AAP-CA sponsored bill codified what the Dental Board of California recommended, the dental lobby successfully prevented the bill from passing this legislative session. It will be up for reconsideration again next year. The dentists’ resistance to the bill stems completely from the requirement for a separate anesthesia-trained provider to be required for patients of any age. They claim that having this dedicated trained monitor would not prevent bad outcomes. But, anesthesia experts disagree.

Related content: Continuous Monitoring Could Have Saved This Patient’s Life

The American Society of Anesthesiologists (ASA) which establishes the standards of the medical practice of anesthesiology says in its Standards for Basic Anesthetic Monitoring that:

Qualified anesthesia personnel shall be present in the room throughout the conduct of all general anesthetics, regional anesthetics, and monitored anesthesia care.”


The “Catch 22”

The dentists’ claims rest on the lack of data to support making the change. However, and this is the Catch 22, they are not collecting and tracking the needed data. Further, this claim is bogus because there really are no differences in the drugs that are used in dentistry for anesthesia and the drugs that used in medical settings. The idea that dental anesthesia is somehow different than anesthesia for any other type of surgery—or that dentists know more about anesthesiology than anesthesiologists—baffles most people involved in this legislative battle: The drugs used are the same, they are given to humans. There simply is no difference.

The problem legislatively is that medicine takes a lot of these safety measures for granted. In medicine, we are not doing studies on young children to see whether there are better outcomes when someone trained in anesthesia is dedicated to monitoring them versus the surgeon tasked with performing the procedure and the anesthesia simultaneously.

We decided years ago that it was safer to have a dedicated trained monitor who has the necessary skills to handle recognition of an emerging adverse event and rescue the patient. This is echoed in current practice throughout specialties, like the ASA’s and national policy guidelines published by the American Academy of Pediatric Dentistry (AAPD) and the American Academy of Pediatrics (AAP).

Dental organizations opposing this requirement simply do not have an incentive to do these studies because they do not want to see any change to this aspect of the anesthesia practice. Frankly, they see it as too costly.


Looking back

Looking back, to ensure passage of the stronger legislation, it probably would have been better to start with clear and precise language contained in national policy guidelines and include references to published studies to support the changes we were trying to make. For example, the language in the AAPD guidelines on personnel required for deep sedation and general anesthesia has been recently been updated to include this language:

“Deep sedation/general anesthesia techniques in the dental office require at least three individuals:

  • independently practicing and currently licensed anesthesia provider
  • operating dentist
  • support personnel.”

As we move forward, in the next year’s legislative session, we hope that this crafted language is clear enough so that our legislators will pass this critically important patient safety bill.

Caleb Sears (286 x 365 px)

Caleb Sears (2008-2015)