Be aware of all legal issues and Internet and record keeping concerns that may affect your practice

When first started addressing issues in the area of risk management, I always began with an attempt to define the term. With state medical record laws, confidentiality issues, medical malpractice, and now the Health Insurance Portability and Accountability Act (HIPAA), it is becoming more complex to define the parameters of risk management.

Due to the possibilities inherent in the technology available to modern medicine, the regulation of the practice of medicine and chiropractic now requires DCs to operate in new dimensions of state and federal laws. These involve standards of care and record keeping that carry civil, monetary, and criminal enforcement.

Spinning the Website
Traditionally, a doctor-patient relationship is formed when the doctor accepts responsibility for medical care of the patient. This occurs when the patient goes to the doctor’s office and provides information to obtain care or, in some cases, when the doctor begins exercising medical judgment on behalf of the patient.

It is universally accepted that there is a difference between practicing and providing chiropractic information. There is a tremendous amount of chiropractic information on websites available to the public. Many of these sites are used to attract patients and offer, in addition to the information sought, opportunities to obtain evaluation or treatment. All websites should have clear, specific, and obvious disclaimers setting forth the circumstances in which a doctor-patient relationship may be created through the site. The use of the Internet may create a cyber-office, and with a click of the mouse, may create a doctor-patient relationship.

Most states will hold cyberpractices to the same record keeping and risk management standards as traditional walk-in practices. In either case, compliance with all aspects of the state statutes, state practice act, and regulatory board is required.

All states have medical malpractice statutes for determining standards of care to be imposed on the doctor. Most states usually hold the doctor to the community standards of care, either within the local community or statewide community. Because of the multijurisdiction nature of cybersites, doctors may be held to a standard of care imposed in another jurisdiction, such as where the patient is located, or even to a national standard of care.

In Jefferson v Romer (1998), the Florida 4th District Court of Appeals upheld a finding over an out-of-state doctor who allegedly committed an error in analyzing a blood sample of a Florida patient. Most states prohibit the unlicensed practice of a health care profession or the performance or delivery of health care services without a valid, active license to practice that profession regardless of the means of performance or delivery of such services to patients in that state.

Risky Business
As a licensed health care risk manager in Florida, I understand the need to establish policy and procedures to address potential risk management incidents in the office. In addition to standards of care, medical records, and confidentiality, it is essential to understand the procedures of risk management. The purpose of risk management is to create and maintain a safe, secure, and properly insured health service environment; contain the cost of insurance; and reduce the losses due to litigation. With the new HIPAA regulations, confidentiality is a major issue, including patient sign-in sheets and open-bay treatment and therapy areas.

There is a new public attitude that exerts economic and clinical service pressures on providers. The public expects and has a right to receive treatment that parallels the services promised. Today, the public views health care as a product rather than a service, as seen in liability cases for relief considered wrongful or injurious. Malpractice claims are filed many times, not because of the incompetence of the health care provider, but because of negative perceptions of the process.

Most programs use the term risk to refer to the possibility of financial loss due to an unexpected contingency. Risk management is viewed as a process of complex task functions and decisions carried out with an objective of reducing unexpected financial loss to an organization.

One Step at a Time
First, identification of risk, or potential risk, requires regular reviews of all physical assets of the practice. Create an incident report form that can be used to establish a defense in litigation. You must identify the risk or potential risk that causes an incident, injury, or financial loss. If it involves a patient, secure the file in a safe place and allow viewing with the designated risk management person from your office present. Risk identification is the single most important program element.

Second is risk evaluation/analysis, which can be accomplished by reviewing and categorizing all available incident reports for a period of time. If exposure is significant enough, it may require some form of intervention.

The third step is the elimination/treatment of the risk. Once the risk has been determined to exist and it has been evaluated, determine how to best eliminate it.

The key principles in an effective risk management program are:
• Establishing a risk management program that emphasizes the safety and security of patients and staff;
• Developing a comprehensive system to reduce and control the incident of loss;
• Developing and communicating safety rules and regulations;
• Including a patient quality/assurance and clinical record maintenance program; and
• Defining efforts to minimize the incident of liability claims.

Record keeping is essential in any risk management program. Never allow original records to be taken from your office or be left unattended while in your office. Remember, the facility is responsible for maintaining the integrity of the records in you patient files. Make sure your staff adheres to your policy on the release of medical records.

Whether you have a walk-in office or a website, confidentiality issues will be the same. These issues will be regulated on a state and federal level, and as information technology increases, we will continue to see changes in the way we practice. CP

Kenneth S. Ross, DC, JD, MBA, LHRM, is a retired criminal law enforcement officer. He practices chiropractic in Orlando, Fla, and is a member of the Orange County Bar Association. Ross is a faculty member of Texas Chiropractic College, teaches tort law, and conducts a national expert witness certification course. He can be reached at 407-682-6041, or via his website: www.medicallawjd.com.  

The information in this article is intended for informational purposes only and does not constitute any legal advice whatsoever. Consult an attorney in your state to determine your state laws governing such information.