Doctors and Litigation: The L Word Gita Pensa MD

In this first episode of Season 2, Dr. Pensa talks with attorney Saira Pasha, an EMR audit trail expert. What else besides the words in your chart does your electronic medical record track? Are 'secure messages' discoverable? (Spoiler: yes, they can be!) How can an audit trail help your case -- or hurt it? How does an audit trail expert 'read between the lines' of who's looking at what entries in the record, and when, and for how long?
Take home points: 
The EMR creates a trail that tracks not only your substantive words on the chart, but evidence of all the people who were in a given chart, at what time, looking at what, for how many seconds or minutes, what they did next in the chart, whether a template or smart phrase was deployed. It tracks and times views, edits, additions, deletions, changes, and any printing or searches. These are not part of the initial requested 'medical record,' but can be obtained through the request of an EMR audit trail. 
The timing of changes to the record can imply that charting was slanted in a way to be defensive or misleading (or at least, a plaintiff’s attorney is going to try to do that, even if your intention was well-meaning.)
Attorneys may infer the importance of a part of the record by seeing how many people were in a chart at a given time, and what they were all looking at, for how long. This information can act like a big red arrow pointing at a specific medication order or radiology result, for example, even if there is no explicit mention of it in anyone's notes. 
Secure messages, FYI's, Best Practice Advisories, and other prompts are all discoverable (with a little sleuthing) as part of an EMR audit within a few years of their appearance in the chart. 
If you cosign notes using a template that suggests you did a substantive review of another clinician's care (such as an APP or midwife), be mindful of the fact that the EMR tracks how long you spent in that note, or reviewing that patient's chart or imaging. 
Dr. Pensa references this 2021 case in which efforts to alter EMR records were exposed. 
More about Dr. Pensa and how to contact her can be found at doctorsandlitigation.com.
 
 

This month, we're exploring the topic of 'help-resistance' in physicians. Why do we acknowledge the need to maintain and optimize the health of our bodies, but scoff at doing the same for our minds or mental well-being? Why do support programs flounder from lack of participation? Why is the notion of even 'self-help' so foreign and...icky?
In this 'listicast', Dr. Pensa explores the top ten(ish) reasons for help-resistance in physicians. This has practical implications as to why physicians often do not access support programs, and why they may resist external or even self-help instruction. 
These concepts are each briefly explored, with particular focus on the physician experience (though, of course, other clinicians and high achieving professionals may have similar experiences.)
Ten Reasons Behind 'Help-Resistance' in the Physician
1) Internal core beliefs and identity of the physician (and traits including exceptionalism and perfectionism)
2) External collective beliefs and medical culture 
3) Inability to recognize when help is indicated (or avoidance coping)
4) Lack of awareness of various modalities of 'help' (what does 'help' even mean?)
5) Family of origin (or culture of origin) taboos; expectations of the family high achiever
6) Absent help infrastructure (or a hush-hush help infrastructure)
7) Terminal uniqueness
8) Fear (of discovery, judgment, licensure/discipline threats)*
9) Friction
10) Change resistance and inflexible thinking (or dichotomous thinking)
 
*To learn more about Dr. Lorna Breen, the Dr. Lorna Breen Heroes Foundation, and their work addressing the origins of this fear, go to https://drlornabreen.org/
More about Dr. Pensa: https://doctorsandlitigation.com/about-gita-pensa
Disclaimer: Dr. Pensa is not a therapist or psychiatrist, and this discussion is not meant as treatment for any specific mental health disorder. This list is based on Dr. Pensa's personal and professional experience, and her coaching work with other physicians in the realm of litigation stress and burnout. 

Medical Boards (or state Departments of Licensure and Discipline) are charged with keeping the public safe from unskilled, impaired, or unscrupulous doctors (or other licensed clinicians, each of which has their own board). While this is an important and necessary role, it is also not uncommon for well-meaning or "innocent" doctors to become the subject of investigations due to complaints from patients, other doctors (including competitors), or from the Board itself. Malpractice litigation or adverse event reporting may also trigger Board investigations as well.
This process is usually opaque, and clinicians have a poor understanding of how their Board works, who is on it, how those people are appointed, who they answer to, what happens when complaints are investigated, the possible ramifications of board decisions, and how to best prepare themselves in the case of a complaint. A naive physician can unwittingly worsen their situation, and an attorney is usually recommended to help in navigating the process. Depending on the complaint, your malpractice policy may help defray the cost of this.
Important points to note: processes for Boards differ from state to state. Typically anyone can lodge a complaint against a physician with the Board, for nearly any reason, and every complaint needs to be addressed in some way. These complaints can be anonymous in some states, and can range from serious to trivial. There is generally no statute of limitations for these complaints. Consider this podcast an invitation to learn more details about your state's medical board and their processes. 
Board investigations and evaluations have been linked to physician suicide, and Dr. Pensa cites a study from 2014 in which nearly 5% of physicians referred to the Tennessee medical board for fitness-for-duty evaluations either seriously attempted or completed suicide. She also mentions a John Oliver 'Last Week Tonight' episode about state medical boards that paints a bleak picture of state medical boards' ability to root out dangerous doctors. The job of the medical board is indeed a difficult one, and Dr. Pensa makes the case for more transparency, accountability, and feedback mechanisms given their power and the wide-reaching impact of their decisions. Changes would need to be made at a legislative level, as the Board is typically a governmental/political organization.
Dr. Gita Pensa gives an introduction to Medical Board investigations and complaints in this episode with Guillermo Beades, Esq. Mr. Beades teaches and publishes regularly in an effort to educate physicians and other clinicians about healthcare law. 
You can find an article of his about this topic here in Medical Economics. 
Guillermo J. Beades, Esq., is a Partner in Frier Levitt’s Healthcare Litigation Department and Co-Chairs the Firm’s Insurance Defense Group. He represents healthcare professionals in a broad range of administrative, civil and criminal healthcare matters. Mr. Beades has extensive litigation experience before state licensing authorities and Medical Boards (e.g., NJ BME, OPMC), federal healthcare agencies (e.g., OIG, CMS, DEA) and state healthcare agencies (e.g., NJ Medicaid Fraud Division, NY OMIG). He represents practices and healthcare professionals in matters concerning credentialing and denial of privileges, administrative discipline, Medicare audits, hospital fair hearings, post-payment demands and pre-payment audits.

Litigation affects the majority of physicians during their career -- in other words, good doctors often get sued. Yet the topic is largely a taboo one among physicians. In this first episode, Dr. Gita Pensa introduces the topic of litigation stress, interviews physicians who have been sued about what makes the experience difficult, and talks to Louise Andrew, MD JD about why this topic needs to be addressed.
Dr. Pensa successfully defended a multi-million dollar malpractice case spanning twelve years, including two jury trials. She speaks nationally on the topic of litigation and litigation stress, and has been a practicing physician for nearly 20 years. She is currently academic faculty at the Alpert Medical School of Brown University. However, these opinions are her own, and this podcast does not express the views of Brown University, her employers, or any affiliated hospital systems.   
More about Dr. Pensa: doctorsandlitigation.com
Also available here on Apple podcasts.
Theme music by BenJamin Banger (Instagram: @BenJaminBanger)

In the second episode of Doctors and Litigation: The L Word, we discuss the very first steps in litigation, starting with when you are given notice of a medical malpractice lawsuit. Experts Dr. Sara Charles, Dr. Ilene Brenner, and Dr. Louise Andrew lend their expertise; physician voices describe their experiences.
More about author Dr. Pensa: doctorsandlitigation.com
Topics discussed:
The emotional impact of the first steps into litigation (and the intended effect from the plaintiff's attorneys), as well as some advice on how to frame it in your mind
First action basics: contacting your insurance carrier, and finding an attorney to represent you
Board of Licensure/Department of Health investigations that begin automatically in some states when litigation starts
The beginnings of the 'discovery' process
Who to talk to...and who not to talk to
Do's and definite don'ts in the first stages
Resources mentioned:
"How to Survive a Medical Malpractice Lawsuit", by Ilene Brenner MD
"Adverse Events, Stress and Litigation: A Physician's Guide", by Sara Charles, MD and Paul Frisch, JD
Litigation stress website with free resources: www.physicianlitigationstress.org (founded by Dr. Sara Charles; note host Gita Pensa MD serves on the voluntary advisory board)
Dr. Louise Andrew, MD JD: www.mdmentor.com
Theme music by BenJamin Banger (Instagram: @BenJaminBanger)
 
 

In this third episode, you'll hear the story of one tragic medical case and its legal aftermath, involving a physician who did everything right -- and yet winds up as a defendant in a high-stakes malpractice trial. 
More about author Dr. Pensa: doctorsandlitigation.com