Category Archives: Malpractice Lawsuits

Michael V. Favia speaks at CBA Administrative Law Committee Meeting Monday March 20

Come have lunch with the Chicago Bar Association Administrative Law Committee on Monday, March 20, from 12: 15 to 1:30 p.m. The topic is “Medical Cases Before the Illinois Department of Financial and Professional Regulation.”

There are many nuances of administrative law and professional regulation that apply in the review of cases involving health care professionals. Being a former Chief of Prosecutions at the IDFPR, then IDPR, Michael V. Favia is uniquely positioned in private practice to advise and represent individuals and organizations involving professional regulatory matters.

Also speaking at Monday’s lunch meeting are Ms. Susan Gold, Deputy Director for State Wide Enforcement, IDFPR, Division of Professional Regulation, and Mr. Donald Seasock, Chief Administrative Law Judge, IDFPR.

Monday’s Administrative Law Committee meeting is held at the Chicago Bar Association, 321 South Plymouth Court and lunch is available for purchase.

Earn Illinois MCLE credit based on the presentation length.

Use this link for more information and to learn how to use the webcast option to attend and earn credit.

 

About us: Michael V. Favia & Associates, P.C. is a health law and litigation firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

Facing challenges in documenting medical care

Every healthcare professional knows that, at some point in their medical practice, they may be called on to defend patient care. When time passes and our ability to accurately recall information is diminished we should be able to rely on documentation of events to answer questions. There are practices you can adopt that can make it easier to make a good habit of properly documenting everything that happens before, during and after patient care.

Documenting everything is not the only key component to keeping proper records. Your medical record entries must be adequate representations of what happened. Imagine a jury reviewing records in a medical malpractice case, assume they do not spend much of their time reading medical records. How might they react to inadequate records? What may be obvious to you may not be to them. When others are charged with judging your credibility, the quality of your medical records can either enhance or diminish your credibility.

Examples of detrimental documentation practices, as identified in the recently article published by The Doctors Company, The Faintest Ink.[i]

  • Gaps and delays in documentation
  • Illegible entries
  • Dictation with blanks
  • Unflattering or judgmental patient descriptions
  • Entries appearing to vent negative feelings
  • Altered records and records missing documents or entries

To ensure proper documentation, each time and every time, the best practice is to develop a system for entering and recording information. Almost like a checklist, you can determine the rules and procedures for managing information. Identify details regarding when, where, how, what and why information is recorded. While it may seem like extra work, at some point your medical records could be under review and read in isolation of other information. Therefore, every single time it is helpful to identify why an entry is being recorded.

Features and benefits of good documentation habits

Increased communication with patients and increased continuity of care should increase understanding, decrease misunderstanding. In many medical malpractice cases, the root of the problem leading to a complaint can often be identified as failure in the communication process.

One way to improve communication is to use dictation equipment to make your patient notes. When you dictate notes right in front of patients you are more likely to read the details into the notes so that the patient can understand everything. If, on the other hand, you are making dictation and sound cryptic or unclear, a patient could become nervous and worried about not having a clear understanding of their doctor visit.

When making entries, beware of the easy mistakes that you can make when using forms and templates. A simple mistake in recording information on a form can cause problems. If there is an error in checking boxes on one form, could there be more errors on other forms? Making independent notes every time you record patient information better insures accuracy and credibility of information.

It is a good idea to audit and review medical records to ensure that documentation procedures are consistently used. In the audit process, a reviewer may detect entries that may require a second look. If there is an error or missing information, it is always best to make a new record and attach it as an addendum to the original. Do not change or alter records when there is active or pending litigation.

For more tips on documenting patient medical records or if you have questions about exposure and liability in the event of a patient complaint or claim for malpractice, please be in touch with Michael V. Favia and Associates, P.C.

About us: Michael V. Favia & Associates, P.C. is a health law and litigation firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

[i] Source for article summary: The Doctors Company, The Faintest Ink, By Carol Murray, RHIA, CPHRM, Patient Safety/Risk Manager II.

Preventing medical malpractice claims with smart strategies

Physicians and their patients all make their best efforts to exchange information to ensure great patient care. At points in the healthcare process, there can be mistakes leading to dissatisfied patients. In many cases, miscommunication and errors can be corrected with little harm done. In other instances, malpractice complaints are filed. Everyone involved in the patient care process would prefer to avoid a negative incident or malpractice complaint. Being diligent in assuring good patient care involves adopting strategies in reducing risks of medical mistake.

In a recent article published in Medical Economics, several doctors and healthcare professionals shared their perspectives on improving patient care, communication and documentation, ideally reducing malpractice lawsuits.[i]

The following is a summary of 5 strategies to reduce malpractice lawsuit threats:

Proper documentation means documenting everything

“Every doctor is taught that if you didn’t put it in the chart, you didn’t do it.[ii]” In error in noting a patient’s chart begs the question of how to correct the typo or wrong word choices. The best practice is to make a separate notation which you identify and incorporate by reference in the original notation. Changing or deleting an error can lead to trouble.

Noting everything in the patient’s chart should also include any communication with patients and family members. Ask them to explain the information back to you to make sure they understand. Make a note in the chart describing exactly how the communication took place. If you note everything with the sense that any other physician could step into patient care without missing a beat, you are engaging in a positive habit that should help avoid medical mistakes and malpractice claims.

Transparency with patients and facilitating access to charts and notes

Does your physician share access to notes and charts? Would you know how to read and interpret those notes if they were made available to you as a patient? Transparency in healthcare services allows patients and their physicians to all understand the reason and course of care. A patient may elect to seek another medical opinion and if they do, the more information you share with them as the primary physician, the better you may be protected from later claims of medical mistake or malpractice. It may take longer to create notes that others can understand, but the benefit in transparency and documentation makes this a best practice.

Expressing empathy when sharing information with patients

When a physician discovers a medical error, they may face tough decisions in communicating errors with patients and their families. While the natural inclination may to apologize and express remorse for a medical mistake, too many physicians are worried about an admission of error which could lead to a malpractice claim. While contrition may be, appropriate and appease concerned patients and families in many instances, there may be times your apology is insufficient to resolve dissatisfaction.

Illinois is one of many states with “sorry laws” protecting physicians from exposure in malpractice cases for expressing apologies and remorse to patients and families. The form of an apology should be sincere and honest. You can effectively express empathy without saying too much that may confuse or give the patient and family the wrong idea. Apologies when due, can be an appropriate best practice. Notwithstanding, being aware of hospital administration and policies that may affect your patient communications is important.

Managing the risks associated with electronic health records

The intended purpose of electronic health records (EHRs) is to solve information and documentation concerns. The portability and access to EHRs should help prevent medical mistakes and malpractice claims. Nevertheless, there are EHR pitfalls to avoid, such as using auto-populating fields in the forms and copying and pasting. Drop down menu errors can also be a problem and cause the wrong information to be populated in the EHRs, which can lead to medical mistakes and malpractice. Imagine another physician relies on wrong information in a patient’s EHRs and misses a drug allergy or gives a patient wrong dose of medications.

Maintaining positive relationships with patients and their family

Reducing uncertainty and increasing understanding is good for physician-patient communication and care. When family members are involved, it is a good practice to let them know what is happening in the care process and what issues may arise and affect the patient’s health. Showing the patient and their family attention and explanation of what is happen and what is anticipated in patient care may give the patient and family solace in knowing their concerns are important and well-attended. Being realistic and transparent is always a best practice to increase understanding and prevent medical mistakes and malpractice claims.

Adding these strategies to your practice

Since so much documentation is required in healthcare, it should be reasonably simple to include these proactive patient care strategies to any healthcare practice. Adding reminders to engage in these tasks is helpful in adopting them as positive habits in practice. Health law, litigation and licensing attorney, Michael V. Favia works with patients, physicians and healthcare organizations to identify and manage risks and to prevent and resolve conflicts when they arise. An audit of a physicians practice can lead to solutions in preventing malpractice.

About us: Michael V. Favia & Associates, P.C. is a health law and litigation firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

[i] Medical Economics, 5 strategies to reduce malpractice lawsuit threats, By Liz Seegert, Nov. 10, 2016.

[ii] See HNi above.

Advantages of being represented by an attorney in IDFPR proceedings

 

The Illinois Department of Financial and Professional Regulation (IDFPR) is responsible for the regulation and oversight of professionals in Illinois. The IDFPR has a duty to the people of the State of Illinois to ensure that its licensed professionals meet the guidelines and standards of professional practice. In healthcare practice, like others, when an individual files a complaint about a licensed healthcare practitioner, the IDFPR has a duty to investigate the claim and engage in disciplinary proceedings where appropriate. Many complaints made against healthcare professionals are disposed of and no action is taken. If and when an Illinois-licensed healthcare professional receives notice of an incident, it is a best practice to hire be represented by an experienced professional licensing attorney during the process.

IDFPR investigations and proceedings are conducted pursuant to administrative legal standards and its individual policies and procedures.

Administrative proceedings and the policies and procedures involved are unique to each agency. The IDFPR uses its own methods and rules to conduct investigations, hearings and disciplinary proceedings. Since the process is unique, it can beyond the practice area scope of general legal practitioners. Attorneys in healthcare law and licensing practice have unique experience in representing healthcare practitioners before the IDFPR.

Michael V. Favia knows how IDFPR investigators and prosecuting think because he is a former Chief of Prosecution for the agency, when it was known as the Illinois Department of Professional Regulation. Favia knows how and when to resolve a licensing case in the best interests of the licensed healthcare professional.

The best case scenario is being diligent and avoiding professional practice investigations and potential outcomes that could damage a healthcare practitioner in their career and reputation.

There are further and other implications of licensing and disciplinary decisions. For example, discipline in Illinois is reported to the National Practitioner Databank, and an adverse decision in Illinois could trigger investigation and discipline in other states if the individual holds licenses in more than one state.

Licensed healthcare professionals have a duty to report certain occurrences, as a conditional requirement for maintaining a valid license to practice. How and when information is communicated to the IDFPR or relevant state board or agency can be the difference between diligence and discipline.

Preventing a future IDFPR investigation is another goal Favia uses when working in healthcare law and litigation. In medical malpractice cases, the outcome of a lawsuit can directly lead to an investigation.

About us: Michael V. Favia & Associates, P.C. is a health law and litigation firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

PODCAST: Criminal Healthcare Fraud and Defense with Attorney Anthony Schumann

This podcast interview with Anthony Schumann focuses on current trends and topics in the area of criminal healthcare fraud and defense. In the next 30 minutes we will cover everything from how to be proactive in your practice and limit your liability, to what steps to take if you are audited, investigated or charged with a crime.

CLICK/TAP HERE TO LISTEN NOW

Topics covered in this 30-minute interview 

  • Introducing Anthony Schumann, tell us about your law practice
  • Sources of criminal healthcare law, state and federal
  • Enforcement areas: home health, kickbacks, mental health, drug diversion, etc.
  • What to expect during investigations and when to obtain legal defense counsel
  • Professional licensing concerns in connection with dispositions of cases
  • What to expect in defending criminal healthcare fraud charges

Anthony L. Schumann is a partner in the Chicago office of Quintairos, Prieto, Wood & Boyer, P.A.  For more than 30 years, Mr. Schumann has participated in over 150 civil and criminal trials and evidentiary hearings.  He focuses his practice in the areas of commercial litigation, employment law, government liability, and white collar criminal defense.  He has extensive experience representing corporate, governmental and individual clients in state and federal courts and during all stages of investigation and throughout the litigation process.  Mr. Schumann has extensive experience assisting companies with internal investigations and in handling compliance issues.  He has attained an AV® rating from Martindale-Hubbell Law Directory, the highest professional rating awarded for legal ability and ethical standards; and he is also included in the listings of Illinois Leading Lawyer and Illinois Super Lawyer.

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Michael V. Favia & Associates are available to advise and represent health care professionals and the general Chicagoland community with a variety of legal issues. With offices conveniently located in the Chicago Loop, Northwest side and suburbs, you can schedule a discrete meeting with an attorney at your convenience and discretion.

For more about Michael V. Favia & Associates’ professional licensing work, please call (773) 631-4580, visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You may also connect with Attorney Michael V. Favia on LinkedIn and on Avvo.com where you may also read client endorsements and reviews.

PODCAST: Nursing homes, compliance with Federal and State Regulations with Carol Prosapio, RN

Today’s podcast interview with Carol Prosapio focuses on educating the public, nursing homes and their staff, about providing good patient care while at all times complying with all the rules and regulations of the Illinois Department of Health and the Illinois Department of Professional Regulation.

Topics covered in this 30-minute interview – Click/tap here to listen anytime!

  • Making informed decisions when choosing a nursing home, do your research;
  • Examining compliance requirements and how nursing homes strive for compliance;
  • Increasing nursing home staff to provide increased resident care requirements;
  • Resources for risk analysis, root cause, analysis regarding pressure ulcers;
  • Pain management, fall prevention, infections, personal hygiene and activities.

Carol Prosapio is an accomplished registered nurse with 36 years experience. She served the State of Illinois, the last 11 years, working as a long-term care surveyor. A Health Facilities Surveillance Nurse, for the Illinois Department of Public Health, Carol inspected long-term care facilities to ensure compliance with Federal and State regulations. She investigated allegations of abuse, neglect, improper nursing care and misuse of resident funds. Additionally, Carol reviewed records, laws, and procedures, investigating and surveying legal and policy compliance. Carol is an alumnus of Moraine Valley Community College, the University of Illinois at Chicago and Lewis University.

Michael V. Favia & Associates are available to advise and represent health care professionals and the general Chicagoland community with a variety of legal issues. With offices conveniently located in the Chicago Loop, Northwest side and suburbs, you can schedule a discrete meeting with an attorney at your convenience and discretion.

For more about Michael V. Favia & Associates, please call (773) 631-4850, visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

Image Source: Enterprise Medical Solutions website. http://bit.ly/1oF9fG4

Court rules hospital must disclose confidential physician credentialing records

The Illinois Supreme Court recently ruled that a physician’s application file and their data bank report information was subject to discovery in a plaintiff’s medical malpractice lawsuit alleging negligent credentialing. Hospitals have a duty to protect their patients against careless and incompetent physicians. Credentialing is the process through which a healthcare provider collects and verifies the professional qualification of a health care practitioner, including but not limited to relevant training, licensing, certification and registrations with health care regulatory boards and agencies. Negligent credentialing lawsuits involve the failure of a health care provider to meet its duty to conduct and maintain proper credentialing practices in connection with licensed health care professionals practicing within their health systems. In the event of a medical malpractice claim, the physician providing health care services might be negligent, but the health system might also be liable if they were negligent themselves, in the credentialing process.

Lawsuits arise out of medical malpractice claims where physician credentialing is at issue.

Credentialing of licensed health care professionals might take place at the direction or requirement by insurance companies, regulatory agencies, and health care administrations. It is common to re-credential a licensed physician following a medical malpractice claim; failure to verify a credential status following a claim for medical malpractice may expose the health care system to its own negligence and liability.

In the instant case, Klaine v. Southern Illinois Hospital Services (2016 IL 118217), the negligent credentialing medical malpractice lawsuit was filed against the physician and two hospitals where the physician was working. In the process of pre-trial discovery, the hospital responded to a discovery request from the plaintiff and responded with the production of approximately 2,000 pages of documents. Not included in the discovery response were two groups of documents, “which contained three of the physician’s applications submitted in 2009, 2010 and 2011 (Group Exhibit F) and “procedure summaries and case histories” (Group Exhibit J), arguing that they were privileged.[i]

Claims of privilege, in the discovery process, are asserted by hospital defendants but can be overruled by courts, and in this case, the physician’s application file and data bank report was deemed discoverable.

The hospital in this case, asserted that the withheld documents were not subject to the discovery process, arguing they were privileged pursuant to the Illinois Medical Studies Act[ii] (MSA) and the Health Care Professional Credentials Data Collection Act[iii] (Credentials Act).

The Illinois Supreme Court held that the information subject of the Credentials Act is confidential, but it is not privileged, for purposes of a medical malpractice negative credentialing lawsuit. Likewise, the court ruled against the defendant’s argument that the MSA precluded the discovery, noting that “confidential” is not the same as statutorily privileged. The physician’s applications, procedure summaries and case histories were ruled discoverable.

Information about physician’s history of practice and any reports of medical malpractice claims, settlements and regulatory decisions involving matters such as discipline, are maintained in the secure National Practitioner Data Bank (Data Bank). Over the hospital’s claims that the Data Bank information was privileged under the Health Care Quality Improvement Act[iv], the Illinois Supreme Court found the Data Bank information was discoverable and stated, “We believe it is clear that information reported to the NPDB, though confidential, is not privileged from discovery in stances where, as here, a lawsuit has been filed against the hospital and the hospital’s knowledge of information regarding the physician’s competence is at issue.[v]

Professional licensing and health care law and litigation attorney, Michael V. Favia asserts there are practices through which the hospital could have better insulated itself from exposure in this type of case.

Michael V. Favia states, “This case clearly set forth the unique intricacies of properly maintaining internal hospital records so that they are protected and not discoverable under various fact scenarios involving professional staff and/or internal risk management protocols.  Attorneys working in health law and in particular those handling hospital related matters should become very familiar with the details and judicial analysis of this case.”

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

[i] The National Law Review, Illinois Supreme Court Rules Physician’s Application File and Data Bank Report Information Discoverable in Negligent Credentialing Lawsuit, by Michael R. Callahan, Feb. 22, 2016.

[ii] 735 ILCS 5/8-2101.

[iii] 410 ILCS 517/1 et seq.

[iv] 42 USC § 11137(b)(1).

[v] See HNi above.

Image Source: Enterprise Medical Solutions website. http://bit.ly/1oF9fG4