Legal Matters in Medical Transcription

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2/97, from Darcy,

I am an MT student who just finished the terminology portion of my course. I was assigned to jury duty last week and got a great case. It was a personal injury suit against an apartment owner for negligence. The problem was that the plaintiff had pre-existing back conditions and while the defendant admitted liability, they could not agree on what was related to the accident and what was related to the problems he already had.

It was a great case for an MT student and really helped me see just how valuable the work that all of you do really is (and hopefully the work I'll be doing in the future!). The 6 witnesses who testified were all doctors, osteopaths and physical therapists and all that they testified to was a result of the plaintiff's medical records. Some of these records went back to 1981 and 1987 (to prove the pre-existing conditions), the rest were from 1994-1996. It was fun to hear the medical terms (ie. arthritis, spondylosis, stenosis, laminectomy, EMG, MRI, etc) and know that I knew what they meant (makes me feel like I've learned something after all! :-)) and it was great to see dictated medical records in action. Without such records, it would have been a very different case!

Anyway, just thought I'd pass that along! BTW, for those curious, he was seeking $112,000 while the defense offered $7,500....we settled on $45,000. Difficult case, though, because a lot of the damages they were seeking were for future pain and suffering...with a 64 year-old man who's been plagued with back problems since an auto accident in 1950, how can we know how much of his future pain could be due to a kitchen cabinet falling on him and how much would actually be due to the arthritis, stenosis and the aging process! Even the "expert" doctors couldn't say for could we???

Well, it's over and now the plaintiff can get on with his life and I can get back to being MOMMY (my personal favorite) as I make my way through the rest of my course!


2/97, from Mary: Read your note about objective records for research. From what I have heard from the doctors at a national teaching hospital, the trend now is for more personal records, not even just "the patient" but "Ms. Jones" several times in the record. I think this is partly because patients now read their own records, but more importantly because doctors are being taught NOT to treat their patients as research subjects, but to show the personal care of patient-centered medicine these days. I'm all for that, but I do wish we could just keep typing "the patient" instead of the name, it is definitely slower this way!

2/97: From Sharon, The first two years that I worked as an MT I spelled bunion as bunyan and no one ever corrected me. Now if I felt that I didn't need to learn, learn, learn, I'd probably still be typing bunyan.

Another example is someone's question about an ambulatory EEG. Some transcriptionists might just type ambulatory EEG because that's what they heard and wouldn't question it. Some might type ambulatory EKG because they never heard of an ambulatory EEG and just assume that it has to be EKG. The good transcriptionist will question these things and learn (thank you to the EEG tech that responded) that there is such a thing as an ambulatory EEG. Now the individual who didn't question and typed what they heard was correct in this case. But it could have been that such a test did not exist, and then you would have been anatomically way off as far as what was being done. And if you are type that would have automatically changed what you heard to EKG, then you were incorrect.

Transcriptionists who type just what they hear and don't have any clue as to what they are typing are really not transcriptionists. They are typists. A transcriptionist has the skill to recognize when the physician may have mis-spoke, know when to automatically correct errors in dictation, and know when something should be brought to the physician's attention for correction or confirmation.

No, we are not doctors, and most of us don't have the training to understand the intricasies of every field, but we certainly should have enough understanding of words to know if the doctor is saying aphasia or aphagia and other words that sound equally similar but mean very different things. And it's not just learning words. Sometimes learning about procedures puts a whole different prospective on the mental image you have of the procedure you are transcribing. Because you have a better idea of what is being done, you will sometimes find that it changes your use of little words such as in, into, on, etc. Little word that might seem insignificant but really change the meaning of what you type. No, it doesn't make your net worth less, but it possibly makes your liability more.

1/97: From Nancy in Oregon: I just wanted to let some of the newbies more aware of the seriousness of errors in the medical/clerical field. At one facility the doctor had handwritten in the Problem List column (on the left side of the chart notes page) R/O malignancy.

The data entry clerk typed it into the computer as : Right pneumothorax, which then was reprinted on the patient's problem list each time he came in for a visit to that facility. The physicians would not listen to the patient when he denied ever having had a pneumothorax.

When a chest x-ray showed something in the right lung, the then attending physician noted that it was probably scar tissue from the previous right pneumothorax and nothing to worry about, to just observe and check in 6 months.

When he complained of shoulder pain, they treated him for bursitis. When he complained of hip pain, they put him in physical therapy. When he complained of spinal pain they gave him stretching exercises and told him to use ice.

In less than 6 months the patient was dead as a result of a metastasizing oat cell carcinoma to the bone, which, according to the Cleveland Clinic where he ended up, could have been excised with possibly better results if it had been caught at that previous examination.

This patient was my father. I obtained the records and found the handwritten note and the subsequent clerical entry error. It is too late to do anything for him now. But please, when in doubt leave it blank, flag it or call the physician.

1/97, from Kay:

Nancy..........I've just managed to compose myself after reading your message about your father. It brought back a lot of bad memories for me. Two years ago, my father died of "undiagnosed" lung cancer. Not because of clerical error, but because of a totally negligent and incompetent family physician. He was txd with physical therapy for his shoulder pain, NSAIDS for his back pain. After six months of pain, and at MY insistence, the MD finally took a CXR and read it as negative. Another six months, when my father lost his voice, he treated him for a throat infection. When I finally took my father to an ENT specialist I knew, it took them less than 10 minutes to find a huge lung mass that had metastasized and wrapped itself around his aorta. There was no hope at all for this wonderful man who had lived his life in service to others. We just had to spend the next three months watching him slowly die and being unable to do anything except be with him. That is when I quit nursing and became an MT. That is when I started working with lawyers and hurting families to bring negligent physicians to answer for their negligence. (By the way, I petitioned my father's records from the MD and his CXR showed a HUGE mass in his lung with a mediastinal shift that anyone could have easily seen.)

I still somehow can't believe it happened. The injustice of it is sometimes too much to bear. I think, "Why didn't I catch it sooner....I could have saved him. " Sometimes I want to just scream, it still hurts so bad. He died five days after my 40th birthday, two years ago, on Nov. 17, and the wounds are still raw.

I didn't mean to rattle's just that most people don't understand that when you lose someone, and really didn't have to, it makes the hurt so much worse. My heart breaks for you, Nancy, because I also have to live with the same hurt. Thanks for listening, and thanks for sharing your story. We ALL must be very careful what we transcribe Don't you think the physician should have caught the error, somehow, before it went as far as it did?

Name withheld: MTs are not liable for damages from errors in dictation, and the dictated report is not the first priority in lawsuits, etc. I got a case referral from an attorney today that is a classic example of this. A woman is diagnosed with lung cancer. It is hoped that with treatment she can make a good recovery. The patient has catheter placed for chemo. Flouro shows good placement. First phase of infusions go well. The patient goes back for further chemo. Ten minutes into the infusion, she begins complaining of severe pain and "burning" at the site of her catheter. The daughter is upset and asking for help. Doctor and nurse attend to patient. They never at any time lift up the gauze to check placement of the needle. Chemo treatment is completed. The patient goes to ER that night with evidence of extravasation of caustic chemical into the subcu tissues surrounding the area. She ends up having a mastectomy due to this extravasation. In dictated report, physician dictates, "Patient had extravasation of caustic chemo med due to MALFUNCTION OF CATHETER."

1/25/97, from Patty Seitz, Idaho:
I have just finished reading the posts under this subject. I had the exact feelings as most of the notes I read. I would never be sued because I made an error or left something out of a report. It probably would not happen because we are not legally responsible for the content of a transcribed report, the author is!! However, there is an excellent article in the March l996 issue of the MT Monthly newsletter addressing this issue. It brought up some very good points.

What if you are faxing records to your office and you accidentally send it somewhere else. You have compromised patient confidentiality. What if you are transporting your transcribed reports to your office and someone breaks into your car, stealing those records??!! A member of your family gets into your computer, discovers a co-worker has AIDS, he spreads that news at the office; you could easily be sued by that person with the AIDS for breach of confidentiality!!

There were other excellent examples given and it has made me think twice about this insurance. Actually, though, I still have not purchased it for myself. I think the premiums are way too high. I have spoken to nurses and other health care profs who have liability insurance and in all cases, the costs were EXTREMELY lower than what we are being offered. Until I see premiums go down, I will not be buying this insurance myself, but I can see where it might be necessary someday. The examples I gave above are things that would rarely happen, but the fact remains, they could. And it does not matter whether you have anything or not in assets, there are "sue happy" people out there and we all must be cautious!!

I know I sound like I have contradicted myself, not having this insurance myself. I am merely pointing out some issues that I think most of us would not think about. But definitely the costs of these premiums has to come down, as I feel they are way out of line.

1/97, from JeanKaye:
I work for a surgeon who routinely is called upon as a consultant by IMEs, lawyers, and insurance companies. The phrases "typed by not read, or dictated not read" are not acceptable and noted as such in the initial request for the examination. If the report should be signed and initialed by someone other than the physician himself, we are asked to resubmit the report properly. It is not likely that a report not signed by the physician is going to find its way into a courtroom.

Regardless of how many may feel about our legal system, I have faith that the "system" is sound enough to know just where the responsiblity for the report should be and act accordingly. I can't quite believe that any judge is going to hold a transcriptionist, secretary, office manager, or anyone other than the responsible party accountable for a report.

1/97, From Maggie Becker:
I don't believe in liability insurance for MTs, either. As we all know, things are crazy enough already -- without quite literally "inviting" others to sue us. I don't see the difference between say, a legal secretary, or a corporate secretary, making a serious typo on a report her supervisor signs, and an MT's "liability" on a report the doctor signs. I never would dream I would be sued for that. Things have gone much too far in this "liability" regard.
1/97, from Cici:
I've been wondering about this whole issue, myself. I've never been a member of AAMT and know practically nothing about them (it?), so I guess that makes me an unbiased witness, right? ;> Before committing myself to full-time MT, I worked as a legal secretary at a firm which specialized in medical jurisprudence defense (translation: they were on the doctor's side), and I'm still trying to visualize a set of circumstances where anyone WOULD sue a transcriptionist. I've seen lots and lots of 'shotgun suits' where the plaintiff's attorney just basically sues everyone in sight (the hospital, the lab, the pharmaceutical company, the pathologist, the ER, the doctor, the nurses, the doctor's dog, the janitor) but never ONCE have I seen a transcriptionist or transcription service named in a malpractice suit. Even though, as my husband puts it, doctors talk about as well as they write, one would presume that they know how to READ, and if they don't take the time or trouble to read a report before they sign off on it, how is that my fault? Clairvoyance is not a skill I've ever listed on my resumé.

I try to cover my own . . . um . . . assets -- I leave blanks if I have to (galling though it is) for dictation that is simply too garbled to unscramble. I correct the obvious errors, such as applying the dressings to the right hand after a carpal tunnel release performed on the left hand. And if worst comes to worst, I'll throw in a "typed as dictated" if the dictation is clear but doesn't make any sense. And I zip up old reports and transfer them to diskettes (not to mention making tape backups) so that if it ever does come to a "you did so/I did not" situation, I've got some documentation.

Lastly, it wouldn't make a lot of sense for anyone to sue me -- I have teenagers, so you KNOW I haven't got any money. I own no real property. I own only one vehicle, and it's my understanding that Texas state law prohibits any award for damages that results in the loss of the tools of your trade, which means that no one could get the one thing I do own that might be worth something, which is my computer. (I could be wrong about that, though.) If someone really WANTED a fourth-hand sofa, I guess they could have it, along with a few kittens to complete the destruction their parents have already begun on it, but I kinda doubt that would happen.

From Kay:
Someone wrote, "Even a small error in subject/verb agreement could throw question on the chronicity of events in a medical case, and that might be critical in determining the outcome of a court case."

I have to beg to differ on this. I know we all feel like it is our excellent work and vigilance that keeps the doctor from losing his license over sloppy dictation, but that really is not the case. If one "small error in subject/verb agreement" could determine the outcome of a case then MT's would really NEED liability insurance. This also would seem to necessitate " what you say is what you get" transcription, rather than "editing" ; as one small "edit" to correct a subject/verb DISagreement might throw off the entire chronicity of events that REALLY occured, and then we WOULD be liable. What I really want to say is this: After testifying and reviewing in many malpractice cases, what it all boils down to is: WHAT IS IN THE HANDWRITTEN CHART AND NURSING NOTES? That which is dictated is good for overall review and trying to determine what the physician WANTS us (the public) to see; however, it is dictated usually well after the fact and therefore influenced by the eventual outcome. What is in the chart, in notes and progress notes, is the "make it or break it" for hospitals and physicians in court.

I have had two recent cases where dictated notes all looked "perfect" and everything would have seemed to be in order. But on going back through the progress notes and nursing notes, we found evidence of gross negligence that literally broke the cases wide open. I guess I have to agree with what Su and so many others have said in recent threads...we would like to think that what we do is of utmost importance, and in many ways, it is; but in many ways, it just isn't all that. And as I have said before, no court case was ever won or lost because the transcriptionist was not a CMT. I think if we are on this board it is good evidence that we care about our work - and most of us do strive to do our very best for our clients AND ourselves. That is all anyone can really ask of anyone.

Name lost:
I think that the danger for all of us lies in becoming too attached to what it is we do. We are not our work, our work is only how we choose to make a living, and it in turn it does not make us more or less worthy than anyone else. If a person enjoys making certain that the work he or she produces is totally free of any possible type of error, that's their choice. For others (such as myself), this type of attention to detail would have us pulling out our hair with frustration! In addition, sometimes hypervigilance can backfire and produce "stupid" mistakes as a result of a heightened anxiety level.

I personally feel that if we all do the best that we can, we all deserve to feel good about the work that we produce. However, if we associate too closely with it, we may begin to develop an air of superiority over others that isn't beneficial to anyone, including ourselves.

MT Daily

Re: Liability insurance - help!

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Posted by Wanda Bartschat on October 09, 1998 at 11:38:20:

In Reply to: Liability insurance - help! posted by Mary S. on October 09, 1998 at 11:16:26:

There is very little market for professional liability insurance for MTs, so I would be surprised to find anyone besides Wohlers doing it--you may find a rare local bird doing it. Marsh & McLennan write professional liability policies, but I don't know about for MTs. Before you purchase a policy, are you doing it because a client requires you to have it, or do you just want it? Most MTs don't currently carry it because they feel the originator of the document is really the person on the line, and it's an expense they'd rather not have. I humbly disagree with that rationale, and have one client who has required liability coverage since 1995 and a new one who also requires it. With HIPAA, Y2K, etc., I don't think it's just a matter of the doc being responsible for what he/she signs any more, but that's just my humble opinion. (If you do decide to purchase it, contact Wohlers directly and ask them to write a policy for you without being an AAMT member--what do you have to lose?)

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