Dempsey Law Blog

Fox Valley Law Firm Serving Oshkosh, Ripon, Fond du Lac and Surrounding Fox Cities

Archive for April, 2010

EHR and CPOE Software Checklist

Posted by dempseylawfirm on April 28, 2010

          Electronic Health Records (EHR) and Computerized Physician Order Entry (CPOE) have revolutionized how medical providers create, maintain, store, and retrieve records and assist physicians and other medical professionals with diagnoses, treatments, and prescriptions.  The advantages are clear, including enhanced ability to make decisions, sharing information in real time, and creating efficiencies.  The conversion of paper records to EHR and CPOE systems also  is crucial to the success of the federal government’s plans to spend billions of dollars of stimulus funds.

             However, as we all know, in practice there are two significant impediments to successfully implementing and using these new tools.  One is the “human” factor.  People.  They make mistakes.  They may not be computer literate.  Or, they may simply not want to learn the new system.  The other obstacle is the software that runs your EHR and CPOE systems.  The decisions you make regarding the choice of software, upgrades, and the software contract provisions are significant legal keys to lowering your organization’ s exposure to negligence and malpractice claims.  This memo will assist you to deal more effectively with your software  planning and your software contracts.  

             Pre-planning

           1. Assemble Your Team.  Software contracting should be a “team” exercise.  For any substantial acquisition, you are smart to involve an outside IT consultant who can act as an objective third party.  An attorney with software licensing and business experience is essential.  A cross-team of your organization’s business, medical professional, and technical people is necessary to obtain  perspectives and receive appropriate buy-in at all levels.

           2. Do the Preliminary Work.  Will the software that you are looking at “run” in your environment? Is it scalable?  Have you done any testing with a demo version?  How many alternatives will you look at?  Have you talked with other similar organizations currently using the software and gained the benefit of their experience?  Determine all alternatives and good, better, and best choices.

           3. Agree on the Process and Strategies.  Once your team is assembled, you will need to develop and agree on the process, strategies and time lines you will use.  This work may be commenced by a subset of your team, or a “lead dog” group that will formulate and sketch out the initial draft plans.  How and when will you look at bids or packages?  Are there legacy systems or concerns that must be addressed?  Who will write your specifications or statement of work (SOW)?  Who will handle the negotiations with vendors?  Who will control the drafting of the legal documents?

           4. Consider Some “What Ifs?”  Prior to the start of the project, your team may want to consider potential problems.  What if the software does not meet the expectations?  What if the roll-out cannot meet the originally established time lines?  What if the site priorities for “go live” need to be re-ordered?  What if there are cost overruns?

           Key Terms and Conditions

           5. Everything is Negotiable.  Price may be negotiable, but so is almost everything else.  Terms and conditions are negotiable, despite what some vendors represent.  As a buyer, if you have leverage, now is the time to make use of that leverage.  Resist the urge to simply sign the vendor’s pre-printed forms.  There is too much money and too much potential liability at stake.

           6. Definitions.  Make sure the key terms are specifically defined and you understand them and how they may inter-relate.

           7. Progress Payments.  Make use of a payment plan, with clearly identified milestones or objectives.  Any doubt about meeting milestones or objectives should be within your authority to resolve or that of a neutral third party – and not ceded contractually to the vendor.

           8. Transferable License.  If you anticipate your organization growing, either organically or by acquisition, now is the time to negotiate the costs of future license “seats,” upgrades or maintenance.

           9. Statement of Work (SOW) and Specifications.  The SOW defines the project and the outcomes.  The specifications mean the functional and operational characteristics of the software.  It is extremely important to spend the time and effort on these documents and finalize them before the contract is signed.

           10. Grant of License.  Pay particular attention to this provision.  Does the license include access to the source code if necessary?  Is there a provision that allows the software to be used on laptops or on the home computers of your medical professionals?

           11. Warranties.  Beyond good title to the software, try to get warranties that the software will materially conform to the specifications and meet any representations regarding performance provided by the vendor.  The duration of any warranty should be stated.

           12. Remedies.  Legal remedies for breach of warranty should be carefully considered.  The most common remedy is simply to “repair or replace” the software, but this might not be adequate in your circumstances.  Response times also may be of critical importance.

           13. Indemnities.  Indemnities are not risk allocation provisions.  Indemnities relate to liability due to a third party claim against one of the contracting parties.  A good example is a claim by a third party that the vendor’s software infringes the third party’s intellectual property.

           14. Risk Allocation.  This is a key provision, as it is concerned with allocating liability between the contracting parties for any breach of the contract and potential damages.  Waivers, incidental, consequential, liquidated and actual damages are all within the scope of this provision.  Risk management plays an essential role.  How will you cover any potential risks or legal exposure?  What is covered by the vendor if it is negligent and what do you need to cover by your own insurance or by other means?

           Post-Contract

           16. No Oral Agreements.  Simple rule – if it is not in writing, it did not happen or it was not agreed to.  Be sure to commit all agreements and amendments to writing.

           15. Assemble the Documents.  All contract information (both paper and electronic formats), drafts, notes, emails, files, and signed originals, to, from and with the vendor should be collected to a single source so that a history can be maintained. 

           16. Monitor Status.  Monitor status, glitches, bugs, fixes, maintenance, etc., on a continuing basis.  Keep in mind future up-stream or down-stream upgrades or changes.  Stay in contact with your vendor to maintain close communication and support.

For more information about our firm, please go to www.dempseylaw.com.

Posted in Business Lawyer, Health Care Lawyer | Tagged: , , , , , , , , , , | 3 Comments »

Personal Injury Checklist

Posted by dempseylawfirm on April 13, 2010

Dempsey Law attorneys have significant experience in successfully pursuing personal injury actions for clients.  If you have been injured in an accident, we would be happy to see you in our offices or elsewhere at your convenience to discuss the details.  You may have a possible claim and may be able to recover damages for your injury and any economic loss.

Before an attorney from our office meets with you, there is some basic information that will need to be collected and available for the first interview.  Depending on the circumstances and the nature of your case, some of the information required may be different.  Also, the attorney conducting the interview may request additional information from you.  The following is intended to be a helpful checklist.

General Information

  • Your name and address and the names and addresses of others involved in the accident
  • A copy of your accident report (if one exists or is available)
  • A copy of any written statement that you might have made or others might have made about the accident 

Information about the Accident

  • The date and time of the accident that caused the injury
  • The details of the accident, e.g., make and model of autos involved, road conditions, other known facts
  • The names and addresses of any witnesses and a description of what they observed
  • The name and address of the ambulance company if you were transported to a hospital
  • The name of the hospital/emergency room that you were transported to
  • The names and addresses of any medical providers that treated you for your injury at the time it occurred and those who are treating you now, if different
  • The dates and times that medical services were provided to you
  • Any traffic tickets related to the accident
  • Any photographs that you have of any personal injuries or property damage caused by the accident or regarding the scene of the accident

 Information about Your Employer

  • Your employer’s name and address and contact information
  • Dates you were unable to work due to your injury
  • Documentation regarding any lost wages or benefits
  • A copy of any explanation of your disability benefits or insurance benefits, if provided by your employer

 Information about Your Insurance

 Name and contact information regarding your insurance company, insurance agent, or any other insurance person you have spoken with

  • The actual insurance policy, e.g., auto policy, homeowners, or renters, as applicable
  • Copies of any letters or other documents from or to insurance companies
  • Health insurance documents from your employer, if applicable, including any co-pays, deductibles or coverage limits
  • Any disability insurance coverage, if applicable
  • Any Veterans insurance policy, if applicable

 Information about Your Medical and other Expenses

  • Copies of all medical bills
  • Receipts for any expenses you have incurred because of your injury
  • Any other documentation regarding your injury or treatment for your injury
  • Records of any psychiatric or psychological care or treatment that you required because of the accident and injury

 Other Considerations

The information collected at the initial conference may or may not establish that you have a case.  A definitive decision may not be possible until additional facts are obtained.

If additional information is required, our personal injury attorneys will outline what additional steps are necessary. If you do have a cause of action, our attorneys will advise you promptly.

Time Limitations

Personal injury lawsuits are governed by what is known as a “statute of limitations.”  This means that if you are injured in an accident, you will only have a certain amount of time from the date of your injury (or the date that you first became aware of your injury) to file a lawsuit.  In Wisconsin, the statute of limitations for most types of personal injury cases is three years.  Hence, time may be of the essence.  If your case is not filed within the time period, it may be barred forever.

Fees for Personal Injury Lawsuits

Dempsey Law frequently uses what is known as a “contingency fee” in personal injury lawsuits.  If you do not win your case, the Firm will not receive a fee.  The Firm’s fee is based on a percentage of the amount recovered.  Generally, the Firm’s clients in personal injury actions are responsible for all costs that the Firm may incur on the client’s behalf.  These costs include filing fees, postage, photocopies, fax and telephone charges, service of process, depositions, appraisals, witness fees and fees for expert witnesses.  Of course, if your personal injury case is successfully settled or tried, these costs will be deducted from the amount recovered.  A fee agreement will be executed with you at the time of the initial interview.

Conclusion

Accidents and injuries may involve complicated facts and many documents and records, particularly if there is insurance or medical providers involved.  It is important to keep good records at all times.  The initial interview is when most of the information and documents are collected.  The more complete the information presented, the more quickly our experienced personal injury attorneys can review and assess the merits of your case.  You can assist in the process by providing the necessary information.

For more information about our firm, please go to www.dempseylaw.com.

Posted in Personal Injury Lawyer, Trial Lawyer | Tagged: , , , , | 4 Comments »

Applicants and Conviction Records

Posted by dempseylawfirm on April 13, 2010

Yes, you can ask an applicant for employment if he or she has ever been convicted of a crime.  However, once you determine that the applicant has a criminal record, you cannot simply refuse to hire for that reason.  The Wisconsin Fair Employment Act prohibits discrimination on the basis of a conviction record. 

An employer must show that there is a substantial relationship between the circumstances of the conviction and the job duties applied for.  Some cases are easier to call: a child molester would not have to be hired by a daycare center; an embezzler would not have to be hired by a bank.  Other cases may be more difficult to interpret. 

Of course, an employer does not discriminate on the basis of a conviction record if the employment decision is based solely on objective factors, such as the applicant failing to meet the minimum qualifications for the job or failing to possess the desired skills and experience, when compared with other applicants.

 Once you make the determination that your applicant or employee has a criminal conviction or presents a risk to employees in the workplace, you may want to contact legal counsel before taking any action regarding employment.

For more information about our firm, please go to www.dempseylaw.com.

 

Posted in Business Lawyer, Employment Lawyer, Trial Lawyer | Tagged: , , , , , , , | 1 Comment »

Troubled Employees Are Trouble for Employers

Posted by dempseylawfirm on April 13, 2010

If you are an employer, it is likely you have only one or two chances to avoid the problems, and potential liability, that comes with a bad employee.  You can minimize the risks by taking a few specific and appropriate actions.

Prior to Hiring

Wisconsin recognizes the tort of “negligent hiring.”  In Miller v. Wal-Mart, the Wisconsin Supreme Court determined that an employer could be liable for the negligent supervision, hiring and training of an employee.  If your employee harms another employee or a third party at work and you, as the employer, knew or should have known of the employee’s dangerous tendencies, you could be liable.  Consequently, the hiring decision is the most important decision that is made.  And, it is the first and best opportunity to minimize or eliminate risk.

As an employer, you should have in place hiring practices and policies that will assist you to identify and “screen out” potentially dangerous employees, and that will provide a sound basis on which to defend a decision to hire or not to hire.  These practices and policies should include:

  • Develop a Comprehensive Employment Application Form.  You will need a form that is well thought out, solicits the information you need, and complies with the law.
  • Regularly Train Interviewers.  Every HR person involved in the interview or hiring process should regularly be trained to identify potential issues and ferret out necessary background information.
  • Check References Thoroughly and Carefully. The more substantive information you can obtain, the clearer the picture will be.  Telephone reference checks, as opposed to relying on supplied reference letters, can provide detailed and nuanced information.
  • Look Further into an Applicant’s Background.  It is important to spend the time as appropriate for the position.  Criminal conviction checks and credit checks should be a routine part of the process when hiring for positions involving trust and confidence and the handling of money.  Motor vehicle records and other public records may also provide useful information.
  • Trust Your Instincts.  Good HR recruiters often have a “sixth sense” about applicants.  They can pick up on unexplained gaps in employment history, or why an applicant suddenly switched jobs without good reason, and can ask appropriate questions of an applicant who appears openly critical of or hostile to former employers or former fellow employees.
  • Don’t Allow Time Pressures or Demands of the Job to Color the Decision.  Often, HR personnel are working under tight time deadlines or urgent demands to “get some bodies now” hired into the workplace. 

When the pressure is the greatest, that is when the most time should be taken to ensure the processes and the decisions are sound.  In the rush to meet hiring goals and time schedules, there can be a tendency to cut corners or take short cuts.  Avoid this.

  • Document Your Decision.  Make a record of the process that you followed, the steps that you took, and the information that you obtained.  This record will serve as good evidence of the care and diligence that was taken at the time of the hiring decision.

 

After Hire

After hire, the employer’s potential liability does not end.  Employers have a continuing duty to be aware of and, in appropriate circumstances, take immediate steps to prevent harm to employees and to third parties.  Incidents involving a troubled employee abusing, harming, making threats, or “acting strangely” must be taken seriously and acted on promptly.  Always document any alleged incident and follow to the letter any progressive discipline process or policy in place.  Encourage employees if they are a victim of, or witness to, such conduct to come forward immediately.

The Hobson’s Choice

When confronting a dangerous employee, employers are often faced with the Hobson’s Choice of taking swift action, which often includes summarily dismissing the employee, or leaving the employee in place, and thereby creating potential liability for the employer if there is another incident perpetrated by the employee in the workplace.

Moreover, termination of the employee does not necessarily solve the problem.  A significant number of workplace violence incidents occur during or soon after such a termination.  Often these troubled employees do not just go away, they go away mad – and then they return with a weapon.

Intervention

Forward thinking employers have adopted the concept of “Intervention.”  The concept is premised on the creditable goals that a troubled employee who has broken the rules should not be allowed to stay in the workplace, but also should not be summarily fired.  Instead, an Intervention Team, at the first sign of an employee’s dangerous tendencies, should immediately be activated.  The Intervention Team is an inter-disciplinary team (HR, legal advisor, management, and a psychiatrist or psychologist) focused on (1) mitigating or removing the threat to other employees or third parties in the workplace and (2) obtaining the help and resources the troubled employee needs.

Steps in the process include identifying and evaluating the incident and the employee, placing the employee on a paid or unpaid leave, and developing a plan to provide the counseling and medical resources necessary to assist the employee.  The end result is that the employee may still go away, but that he or she will receive

the necessary assistance.  This approach may cost the employer more in time and money at the outset, but the value of intervening and preventing a violent incident in the workplace far outweighs the cost.  It can be money well spent.

Conclusion

Employees often have problems; troubled employees can have significant problems. Employers have a chance at both the hiring stage, and at an intervention stage, to take the appropriate actions and make the right decisions to reduce or eliminate risk to the employer and other employees or third parties.  Our lawyers are experienced with employment law matters and can ably assist you with your employment law-related questions.

For more information about our firm, please go to www.dempseylaw.com.

Posted in Business Lawyer, Employment Lawyer, Trial Lawyer | Tagged: , , , , , , , , | 1 Comment »

 
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