Risk Management in the New Era of Healthcare Reform

February 26, 2011

James W. Saxton, EsquireChair, Healthcare Litigation and

Risk Management Group

Stevens & Lee

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Disclosure Statement

Mr. Saxton holds the following positions:

• Board of Directors and Executive Committee Surgical Review Corporation

• Board of Directors Surgical Excellence, LLC

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Objectives

• What’s up in the litigation environment

• How health care reform will change the way health care is delivered…and your risk!

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Something Doesn’t Feel Right …!

• Plaintiffs’ Bar more organized than ever

• Leveraging technology

• Leveraging national expertise

• We need to be

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The LITIGATION Environment• Plaintiff’s attorneys have courses on

– Psychodrama– “Crying” – Channeling

FocusFocus...on theDRAMA

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Scrutinizing EVERY MOVE!

Be among the first to learn how to read microexpressions

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Healthcare Reform will accelerate

• Payment concepts transformed into liability issues?– “Never Events”

• Negligence per se

– Failure to follow “best practices”• Liability and economic

issues

– Transparency will make a difference

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To get prepared…Let’s look at this from 10,000 feet

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WHERE Will Care be Provided?

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WHERE Will Care be Provided?

• Hospitals• Ambulatory surgery

centers• Community health

centers• Retail clinics

• Urgi-care centers• Employer health

centers• Home-care settings

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WHERE Will Care be Provided?• Jobs and workplaces

– Pitney Bowes

• Connecticut-based manufacturer of business software and hardware

• $6.3 billion annual revenue, 36,000 employees

• 7 on-site medical clinics, open to 5-6,000 employees

• Primarily staffed by nurses

“Putting healthcare on-site keeps employees healthy, costs less, and increases productivity…. Our goal is to be an extension of the primary care physician in the workplace … but not to take over the primary care.” Brent Pawlecki, MD, MMM

Corporate Medical DirectorPitney Bowes, Inc.interviewed 8/27/10

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WHERE Will Care be Provided?• CVS: 500 Minute Clinics!• Primary goals:

– break-even– drive extra traffic into stores

• Retail facilities: The Convenient Care Association counts approximately 1200 retail clinics in >32 states!

– Roadside Medical Clinic Labs (serves drivers at truck stops in 3 states)

– Wal-Mart, Target, Publix• Cyberspace

– At home with web-based tools for patient self-management, education and engagement

• Intel, GE Announce New Telehealth Joint Venture focusing on three major segments including chronic disease management, independent living at home and in assisted living communities, and assistive technologies. August 2, 2010

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As to the WHERE…

You need to be thinking…

• Are there new risks?

• Is there a shift in responsibility?

• Is there a safety net?

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WHO Will Provide Care?

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WHO Will Provide Care?

• Number of mid-levels in primary care – CHANGE…in who refers to you??

• Midlevels in surgical specialties– Who will supervise?– What is the appropriate level of supervision?– Be careful with hand-offs– Must be part of the team– Must enhance the “practice-patient”

relationship

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And… the physical demands of a demanding profession are taking their toll…

“Whereas we’ve focused rightly on patient safety…[we] have never given mind to surgeon safety.…By 2020 [there will be] up to 30% workload increase for general surgeons. [Today] 87% of surgeons performing minimally invasive surgery are suffering from occupational injury or exhibiting symptoms….We must pay attention…[because these will lead to] reduced workforce and reduced career lifespans.”

~Adrian Park, MD Campbell and Jeanette Plugge

Professor and Vice ChairDepartment of Surgery HeadDivision of General Surgery

University of Maryland Medical Center

Interviewed 8/18/10

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WHAT Care Will be Provided?

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WHAT Care Will be Provided?

• Surgeons need to move to “best practices”

• Surgeons who want to be part of ACOs– Being better at “IT”– Enhancing true patient and family satisfaction– Reducing “never events”– Collaboration skills– Use of mid-levels– Becoming a high quality, efficient provider

• Is this going to be

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Changes in the WHAT mean…

…really focusing on reducing “Never Events”:

1. Surgery performed on wrong body part2. Surgery performed on wrong patient3. Wrong surgical procedure performed on patient4. Unintended retention of a foreign object in a patient after surgery or other procedure5. Patient death or serious disability associated with medication error6. Patient death or serious disability with a hemolytic reaction due to the administration of ABO/HLA incompatible blood or blood products7. Death or serious disability due to an air embolism8. Falls that result in death or serious disability9. Stage 3 or 4 pressure ulcers acquired after admission to a health care facility10. Death or serious disability associate s with failure to identity and treat hyperbilirubinemia in neonates

~National Quality Forum

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This will all evolve to…

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Being aggressive- using the evidence

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A STRATEGIC APPROACH

RiskMitigation

Risk

EventManagement

Event

Control of the Process

Claim

A Different Defense

Lawsuit

$$ $$ $$

Infrastructure

BaselineLessons learned

Education

Post – eventcommunicatio

nBuild the

foundationClaims mgmt.

How to get there:

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…to…the NEXT LEVEL!

• Obtain a practice/department assessment– True movement to critical!

• Movement to making patients better partners–

• Moving to true– You– Your colleagues– Your staff

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For more information, please contact:

STEVENS & LEE51 South Duke StreetLancaster, PA 17602

James W. Saxton, Esq.717-399-6639

jws@stevenslee.com