According to the National Practitioner Data Bank’s 2006 Annual Report, 15,843 medical malpractice payment reports were made that year. While this number reflects an 8.3% decrease from reports filed in 2005, it also stands as a reminder of the real grasp malpractice has over health-related professions.
Medical malpractice lawsuits and litigation are common in health care and the O&P industry is not immune. Practitioners work with a certain understanding that fitting a prosthesis requires trial and error.
Practitioners need to be innovative and creative when fitting a patient with a prosthesis and it is generally understood that the first fit will not be the best fit. While this trial and error will eventually produce the results the patient desires, for the practitioner, working this way can be risky business.
How to reduce risk
In the article, Overview of Legal and Ethical Issues Related to Health Care Malpractice for Prosthetists and Orthotists, in the Journal of Prosthetics and Orthotics, author Ron Scott noted the unique position of the O&P practitioner when it comes to malpractice issues.
“Because orthotics and prosthetics focuses on both professional product and service delivery, prosthetists and orthotists are particularly vulnerable to professional negligence and product liability claims,” he wrote.
Although we live in a litigious society, a clear understanding of the patient who is at risk and how to treat those patients will reduce the possibility of legal action.
“You mitigate the risk by documentation, communication, education of the patient and evaluation,” Dennis Clark, president of OPGA said.
The lack of a consistent documentation style is a problem that could easily increase the risk of lawsuits. Differing documenting styles among care providers has hampered the health care industry for years. Educating practitioners on standard documentation procedures for your practice is the fundamental first step to lessening the risk of these errors.
“A patient comes in with a problem but the practitioner he or she saw last time isn’t in that particular day,” Clark explained. “Well, if you had a consistent style of taking notes, then the new practitioner could look back at the chart and quickly asses where the practitioner was before, what he or she did and was it working? That is so important.”
According to Clark, product and professional liability insurance providers have programs in place to help reduce the potential risk for litigation. That reduction always includes record-keeping, note-taking, appropriate assignment of practitioners to cases and qualifications of staff and policies.
“The practitioner that has their eyes open and their ears open also has to be a good educator and good communicator and must be able to recognize the warning signs when things aren’t going well,” Clark told O&P Business News.
Prosthetists and orthotists are not physicians, but they are an important part of the care management team. A vital role of these team members involves interfacing and interacting with other health care professionals. Sometimes this role also includes referring patients back to those other health care professionals.
“Practitioners should understand when they need to refer patients back to their physicians or other health care professionals to address issues that are outside their scope,” Clark said. “A diabetic patient that feels weakness in their hands could indicate that their diabetic situation is getting worse. Consequently, it may be a good time to refer them back to their physician to make sure their health is under control.”
A practitioner who is aware of their patient’s existing physical ailments, such as diabetes, will recognize the warning signs of worsening illness such as reddened areas on the skin or a wound that simply will not heal.
“Are we right in someone’s crosshairs? Possibly,” Clark said. “But qualifying your providers and privileging within your organization at different levels are becoming the norm in our industry. We are moving forward with the requirements we had for facility accreditation and certification. I think that will work in our favor.”
“The interesting thing about the O&P industry is that there are product innovations coming out nearly on a daily basis,” Mark Brostowitz, senior vice president, AON Infinity Insurance said. “You’ve got to try those products out.”
Brostowitz believes this is the catch-22 with which nearly every O&P firm contends.
“If you’re doing you’re job correctly you’re innovating and you’re potentially trying things that haven’t been done before or products that haven’t been tried before,” he said. “You’re going to have some failures.”
Practitioners should be up front and honest with their patients. A verbal discussion informing the patient of the procedures that will be taken in order to get a better or more comfortable fit is important. It is also the practitioner’s responsibility to explain that while success may not be attained in the first fitting, they will work with the patient to attain the level of comfort and mobility the patient needs.
“It’s how you manage the patient and how you manage their expectations,” Clark said. “If you’re making changes that are in the best interest of the patient, you need to communicate that to them and they need to be able to know what your guidelines were for making those care management decisions for them specifically.”
Brostowitz believes a solid informed-consent document signed by the patient will help in the long term if legal issues do arise.
“Practitioners need to remind [their patients] that this is trial and error and it may not be a proper fit the first couple of times,” he said. “You can’t take for granted that even your established patients aren’t going to have some of these issues.”
Practitioners should use an informed-consent document for all patients, not just patients who are new to their practice. This kind of documentation not only protects the practitioner if a legal situation were to arise, but also conveys a certain level of respect for the patient/practitioner relationship.
“You create a relationship – most times a lifetime relationship with your patient,” Clark said. “Many times the first prosthetist is the prosthetist the amputee works with their entire lifetime. You’ve got that connection.”
With the rate of technological evolution that exists in O&P, it is especially important not to take long-standing relationships for granted. There is no telling what level of success a certain patient will have with a new device.
While the bond of prosthetists and patient goes beyond medical provider, issues arise when practitioners lax their documentation for patients that they have worked with for many years.
“[Practitioners] need to avoid the temptation of saying this patient’s been a patient of mine for 10 years, nothing bad is going to happen to them,” Brostowitz said.
Play it safe and require all patients to sign and fill out forms whenever record updates are required.
“You are not just managing their care while the patient is in your office,” Clark said. “It is also for their activities and daily living.”
Along with recognizing the physical problems a patient may endure, supervision of the patient in the facility is crucial.
In many cases, lower extremity patients are learning how to walk again. Unaddressed hazards in and around your facility could lead to patients falling down or tripping. These hazards could potentially cause injury to another part of their body or delay the progress of their rehabilitation or prosthetic training.
Most practitioners go out of their way to supervise their patients. Keeping an eye on a patient while they are learning to use their prosthesis sounds simple. Still, there could be momentary lapses. Brostowitz recommends practitioners being vigilant for unsafe walking conditions. Most of the claims he sees come from those types of situations.
“Practitioners could walk out of a room to get a file and when they come back their patient is on the floor,” Brostowitz said. “There are people with an artificial limb who are trying to navigate and you wouldn’t think it would happen that often in an O&P facility but it does.”
When we think of malpractice cases, we generally think big. We think of a wrong amputation or wrong diagnosis. While these incidents do occur, legal problems could arise due to practitioners being lulled into a false sense of security.
“There could be a crack on the sidewalk or a crack on the curb,” Brostowitz said. “Inside the facility, most practitioners know not to leave anything on the floor. When someone is trying on a device, they really need to make sure someone is in the room with them.” — by Anthony Calabro
For more information:
- National Practitioner Data Bank. Healthcare Integrity and Protection Data Bank. Available at: www.npdb-hipdb.hrsa.gov Accessed June 11, 2009.
- Scott, R. Overview of legal and ethical issues related to health-care malpractice for prosthetists and orthotists. The Journal of Prosthetics and Orthotics. 1996; 8(1): 17-20.