Mitigating risks from care during COVID-19 [PODCAST]

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“We have observed that delays in screenings and intervention for patients with certain common chronic conditions can contribute to claims. Now, clinicians have the opportunity to identify patients whose conditions merit priority contact, such as those with cardiac conditions, those on blood pressure medication, or those with diabetes, and request they come in for delayed screenings or checkups.

Explicitly recommending that those without medical contraindications get vaccinated not only helps slow the spread of COVID-19, but may also stop a patient from claiming that they remained unvaccinated for lack of counsel from their physician. Whether or not a practice or institution is distributing vaccines, it should communicate to patients that COVID-19 vaccines are extremely safe, remarkably effective, and vital to ending the pandemic. Invite patients who have questions about vaccines to communicate their concerns.

Since risks exist even if patients did not present for care, documenting the practice’s efforts to reach patients who have delayed care will reduce litigation risks. If a patient is considering filing a claim, a review of the patient’s medical record will be among a plaintiffs’ attorney’s first steps. Therefore, documenting patient communications is a defense against suits before they are filed.”

Richard E. Anderson is chairman and chief executive officer, The Doctors Company and TDC Group.

He shares his story and discusses his KevinMD article, “Mitigating risks from care during COVID-19.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today we welcome back on the show Richard Anderson. He is an oncologist as well as chairman and chief executive officer of The Doctors Company, which is the nation’s largest physician-owned medical practice insurer. He wrote the KevinMD article “Mitigating risks from care during COVID-19.” Richard, welcome back to the show.

Richard E. Anderson: Thank you very much. Nice to be with you.

Kevin Pho: So we’ll get into the article in a little bit, but for those of you who do get a chance to listen to our first episode, can you just briefly share your story and journey to where you are today?

Richard E. Anderson: Well, sure. I’m a medical oncologist. I practiced medicine in San Diego at Scripps Hospital for 25 years. I’ve served as chief of medicine at Scripps Hospital and was a clinical professor at UCSD. I was insured for 30 years by The Doctors Company, and ultimately one thing led to another, and I became chairman and CEO of The Doctors Company. So it’s a very different role, but it absolutely represents an advocacy role for the profession, and it’s something that I feel very privileged to do.

Kevin Pho: All right, so let’s jump straight into your article, because this is a topic that a lot of physicians are concerned about, especially during the pandemic. So your article is titled “Mitigating risks from care during COVID-19.” Now, for those who didn’t get a chance to read your article, can you just walk my audience through it and share the story of why you decided to write it?

Richard E. Anderson: The COVID pandemic is obviously extraordinary, and certainly it’s a once-in-a-lifetime event in our lives, although we may see more of these things in the future. The initial thought has to do with COVID and all of the direct effects of COVID in terms of the care, the interruptions, the death, the morbidity, and the massive overstretching of hospitals and personnel in trying to treat these literally millions of cases. But there’s another part of the epidemic too, which is that routine, normal care was largely interrupted, and where it wasn’t completely interrupted, it was almost universally disrupted.

We know how profound that disruption was if we look at total deaths during the pandemic year as opposed to deaths that are directly attributed to COVID. First of all, I think we underestimate direct COVID deaths, because especially in the beginning of the pandemic, a huge number of people who had COVID weren’t tested for it, so we could never know for sure that they had COVID, or they weren’t documented in our statistics. That would even include deaths: The number of people who died at home, for example, would never be part of the statistics. So we’re undercounting COVID.

But if we look at it another way, we say, what was the expected number of deaths in the United States, say, in 2020? It turns out that there are four or five hundred thousand additional deaths in 2020 that cannot be accounted for even by extrapolated values of COVID, meaning that other diseases were causing more deaths in 2020. The reason for that is almost surely the disrupted care related to COVID.

This article really focuses on that disruption, what the consequences are, what our responsibilities are, and what good medicine looks like as we emerge from the worst aspects of the pandemic and medical facilities are almost universally open, where they’re not overstretched by third and fourth waves of COVID. But we have almost a full year’s worth of deferred or disrupted care to think.

Kevin Pho: Can you give an example story or a case study of a potential litigation risk because of some of the issues that you mentioned? Say I’m a specific physician, maybe even a primary care physician like myself. What are some of the specific risks that we have to be careful of? Do you have a story or case study that you can share?

Richard E. Anderson: I’ll start with oncology, since I’m an oncologist. If we think of two areas of screening which we know to be effective and we know to save lives, mammographic screening for breast cancer and colonoscopy or other forms of screening for colon cancer, the National Cancer Institute estimates that we’ll see more than 10,000 deaths because of lack of screening or disruptive screening in 2020. So that’s an extrapolation, a very large number of additional deaths.

But the real question is, if your patient wasn’t screened during that period of time, first of all, it’s important that you make contact with them again. Obviously, in the midst of all this pandemic, there’s a lot of movement. Patients are changing doctors, practices are changing, and lots of things are going on. It’s important to reconnect with your patients who require these screenings to make sure that they get caught up with their screenings. I think those are relatively obvious examples.

But as you know, 5 percent of chronic diseases cause about 50 percent of medical contact. So if we think of patients with, for example, insulin-dependent diabetes, labile hypertension, or coronary artery disease, many of those patients weren’t being seen as regularly during 2020 as they would be now, and many of them will require readjustment of their doses or their medications. It’s important that we not lose track of those patients.

There’s one other one, which is, I think, for doctors, a pretty painful subject: this notion of resistance to vaccination, which is really one of the true medical miracles of the 21st century. It’s hard to credit, yet in our crazy litigation system, a doctor who doesn’t reach out to his or her patients who chose not to be vaccinated has a responsibility not only to inform them of the benefit of vaccination but to inform them of the risks of not getting vaccinated. In our politically charged environment, this seems like a counterintuitive thing to do, but from a medical point of view, it’s actually quite important.

We can go back a couple of decades, and there are chilling cases of women, for example, who for whatever reason refused to have, the doctor said, “If you don’t want a Pap smear, I won’t give you a Pap smear.” But then there was litigation from women who went on to develop cervical cancer, saying, “You didn’t inform me of the risk that I was taking by not having a Pap smear.” So those are the kinds of things that I think we need to be concerned about.

One thing I would say, though, is that it’s easier said than done, because medical care is still disrupted even while offices are open. There are only so many patients that can be seen in a day, and there’s an awful lot of care that’s now coming back into the office. There are pressing procedures that didn’t get done that need to get done, and those move to the head of the line. But ultimately, if we follow the normal principles of good practice, staying in touch with your patients, communicating, making sure that follow-up is actually done when it’s necessary to be done, and making sure that when tests are ordered, we review the tests and take action if the test indicates that it’s necessary.

So we’re not saying we need to do anything different, but we are saying we need to really come back to the fundamentals of primary care, long-term care, and take some responsibility for making sure that we can help our patients manage through the disruptions in their care that were caused by the pandemic.

Kevin Pho: You mentioned reaching out to these patients who may have delayed screening due to the pandemic as one way to potentially mitigate the risk. Any other ways that physicians can mitigate that risk? Perhaps documentation, acknowledging the pandemic? What are some other ways they can help mitigate that risk?

Richard E. Anderson: You said the key word: documentation. I think proactively reaching out and making contact with patients on your books who need to be seen, who haven’t for whatever reason made an appointment, and it is absolutely critical to document this. It’s easy for a phone call made by an assistant not to get documented in the record, or a card or letter that was sent out not to be documented in the record.

But we know that about a third of all medical liability cases are related to diagnosis, and virtually all of those are related to failure to make a diagnosis. This is the situation where we can fail to make some diagnoses. When a case comes to a plaintiff’s attorney, the first thing that they’re going to look at on a delayed diagnosis case is the medical record. If that medical record is replete with references that we reached out to the patient, we asked the patient to come in, we told the patient to come in, we communicated that they needed this test or that test or just to be seen in the office, and that is documented in the record, there’s no reason for the plaintiff’s attorneys to be interested in a case like that. But where they come in with a patient who says, “My doctor missed my diagnosis,” that’s a much more attractive situation for a plaintiff’s attorney.

Kevin Pho: Of course, during the pandemic, virtual medicine came to the forefront. Are there any litigation risks that arise from the increasing use of virtual medicine during the pandemic?

Richard E. Anderson: Yeah, that’s a great question. I will say The Doctors Company has been sort of at the forefront of telemedicine. We’ve been insuring it for the better part of the decade, and of course, that was before COVID. But we’ve seen it’s actually been a quiet area of litigation, and we’ve not seen any increase yet. But again, it comes back to documentation. Telemedicine in some ways has some built-in advantages. It’s not hard to create a video record of all your telemedicine, and that can be extremely valuable in the case if there’s litigation. So you have a video record, which is really helpful.

The other thing about telemedicine, obviously, on the one hand, it’s a tool that we’re going to be using forever. It’s an extraordinarily good tool. But pretty much state-of-the-art today, or not state-of-the-art, but the way it’s commonly used, there’s virtually no physical examination. Now, five years from now, that’s going to be different, right? Because we’re getting digital tools. You’ll be able to do the physical examination with your iPhone. You put your thing on your chest, heart sounds will be analyzed digitally, and so on and so forth, and take a picture of your tympanic membranes, a million different things that will be done, so that there’ll actually be a pretty good physical examination that will be possible remotely. But right now, it isn’t commonly done that way, and that obviously is a challenge for telemedicine.

So in most situations, it needs to be used really for screening, triage, actually a better word than screening. It needs to be used for triage. Simple solutions can certainly be given over telemedicine, but if there’s a real question, it’s going to require an in-person visit, it’s going to require a follow-up, it’s going to require some testing. That’s the part of telemedicine that we need to constantly keep in mind. It’s a miracle of modern technology, but we need not to be seduced by the slickness of it and remember what its current limitations are.

Kevin Pho: We’re talking to Richard Anderson. He’s an oncologist, and he’s the chairman and CEO of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. Richard, I always ask this question when I talk about medical liability: What’s the most common mistake that you see physicians make when it comes to protecting themselves against potential medical liability?

Richard E. Anderson: Well, the single most common is inadequate documentation, the most common generically. When I say inadequate documentation, in other words, you gave informed consent verbally, but it’s not written down, or you told the patient that they needed this test or that test, but it’s not written down, or you refer the patient for a consultation, but it’s not formally documented in the chart.

But more broadly, I think the majority of medical malpractice education is not based on the esoteric aspects of medicine. It’s not based on complex care or clinical problems that were very, very difficult to solve. Some cases are, of course, but the majority aren’t. The majority are blocking and tackling. It’s a laboratory test: Make sure you screen the laboratory test. If the laboratory test is abnormal, make sure you’re following up on it. Same thing with X-rays, with other studies. If you refer a patient for, let’s say, a surgical consultation for a mass, a lump in the breast, make sure the patient has the consultation. Make sure that you communicate with the surgeon so you know what the next steps are.

It’s those kinds of things which require that extra effort. They require that extra step, and they’re especially difficult, I think, to achieve in today’s medical environment. Patients are in transition. Many patients move around at the behest of their insurance companies rather than choosing their doctor freely, so the doctor-patient rosters are changing constantly. It’s really critical to do the blocking and tackling that all of us would recognize as good medicine, but when we’re seeing 20, 30, 40 patients a day, it is very, very difficult to keep all of those balls in the air.

It requires thoughtful organization of your practice. It requires having good medical assistants and a good office process, and that kind of medical management isn’t what any of us learned in medical school. It becomes even more important today because of the remarkable and extraordinary stresses that all of us in practice today face.

Kevin Pho: And my final question: What’s your take-home message that you want to leave with KevinMD?

Richard E. Anderson: My take-home message is, number one, as a citizen and as a patient, I’m grateful for the extraordinary care that’s been provided by people working through the epicenters of the pandemic. We talk about heroes all the time, but this is a generation of physicians that created an extraordinary number of heroes during the pandemic.

My second message: We’ve gotten through the worst of it, I believe. We’re making enormous strides against COVID. That’s terrific, but there’s an incredible reservoir of care that’s been delayed or disrupted, and we have to be sure that we turn our attention to that problem.

Kevin Pho: Richard, thanks again for coming back on the show and sharing your time and insight.

Richard E. Anderson: Thank you very much.

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