On Tuesday, March 16th, Phil Smith of The Van Winkle Law Firm will be honored by Pisgah Legal Services with the Roy Davis Award. For more details, or to purchase tickets, please see the link below. 

http://www.pisgahlegal.org/news-and-events/jazz-for-justice-event/jazz-for-justice-2010

On Friday, March 5, 2010, North Carolinians can call to talk, by phone, to a North Carolina lawyer at no charge. Attorneys from Van Winkle’s business group, including Allan Tarleton, Larry Harris, Anna Mills, Jeff Dunlop, and Travis Smuckler, will participate in 4All at the WLOS station in Asheville. Attorneys will be available from 7:00 a.m. until 7:00 p.m. To participate or to get more information, please contact the NC Bar Association at 1-800-662-7407 or call WLOS at 1-828-684-1340.

By Ryan Beadle
The Medicare Prescription Drug, Improvement, and Modernization Act of 2003 added health savings accounts (HSAs) to the Code effective for taxable years beginning after December 31, 2003. The rules for inheriting an HSA are different than for IRAs and other tax-deferred retirement accounts, and therefore may be unfamiliar to many given that HSAs are a relatively new concept and very few have been inherited. Under §223(f)(8)(B)(i) of the Internal Revenue Code:

If the HSA account owner’s surviving spouse is the designated beneficiary of the HSA, §223(f)(8)(A) specifies that the HSA becomes the HSA of the surviving spouse and is excluded from income. This is similar to a spousal rollover of an IRA or other tax-deferred retirement account. No other “rollover” is permitted for HSAs.

If the account is acquired by the owner’s estate, the HSA ceases to be an HSA at the account owner’s death, and the account’s value must be included in the account owner’s income for his or her last taxable year.

If the account is acquired by anyone other than the owner’s surviving spouse or estate, then the HSA ceases to be an HSA at the account owner’s death, and the person acquiring the HSA must include the fair market value of the HSA as of the date of death in income in the taxable year that includes the date of the account owner’s death.

There is a provision to reduce the includible income by the deceased HSA account owner’s qualified medical expenses paid by the HSA recipient (other than the spouse or estate) within one year after the account owner’s death. There is also a provision allowing a deduction for increased estate taxes attributable to an item which is also taxable income. §223(f)(8)(B)(ii).

This is a different rule than for an IRA or other tax-deferred retirement account of which the estate is the beneficiary—for retirement accounts, normally the estate includes the item of income on its tax return, and the estate passes that income, and the tax obligation, out to the beneficiaries of the estate, thus taxing the income at the beneficiary’s (usually) lower rates, depending on how many beneficiaries there are and what their marginal income tax rates are.

On February 11, 2010, approximately fifty legal professionals gathered at the Van Winkle Law Firm in Asheville for an introductory reception of the Western District of North Carolina Chapter of the Federal Bar Association. Attendees included federal court personnel and practitioners in the District.
Persons interested in the Western District’s Chapter or the FBA generally are encouraged to contact one of the chapter’s officers directly or the FBA national office at (571) 481-9100, or on the web at www.fedbar.org.

Five attorneys with The Van Winkle Law Firm have been recognized by North Carolina Super Lawyers magazine for 2010: Robert H. Haggard (Estate Planning and Probate), Barry B. Kempson (Estate Planning & Probate), Brian F. D. Lavelle (Estate Planning & Probate), Larry S. McDevitt (Antitrust Litigation), and Phillip J. Smith (General Litigation). Only five percent of the lawyers in the state are selected for inclusion in Super Lawyers®.

Super Lawyers® is an annual listing of outstanding lawyers who have attained a high degree of peer recognition and professional achievement.

The Internal Revenue Service has announced that people who give to charities providing earthquake relief in Haiti can claim these donations on the tax return they are completing this season (i.e. the return for tax year 2009, which is due April 15, 2010).
Taxpayers who itemize deductions on their 2009 return qualify for this special tax relief provision, enacted Jan. 22. Only cash contributions made to these charities after Jan. 11, 2010, and before March 1, 2010, are eligible. This includes contributions made by text message, check, credit card or debit card.
The new law only applies to cash (as opposed to in-kind) contributions. The contributions must be made specifically for the relief of victims in areas affected by the Jan. 12 earthquake in Haiti. Taxpayers have the option of deducting these contributions on either their 2009 or 2010 returns, but not both.
Only taxpayers who itemize their deductions on Schedule A may take advantage of this deduction. Those who claim the standard deduction, including all short-form filers, are not eligible.
Taxpayers should be sure their contributions go to qualified charities. Most organizations eligible to receive tax-deductible donations are listed in a searchable online database available on the site: IRS.gov, under “Search for Charities”. Some organizations, such as churches or governments, may be qualified even though they are not listed on the site: IRS.gov. Donors can find out more about organizations helping Haitian earthquake victims from agencies such as USAID.
Federal law requires that taxpayers keep a record of any deductible donations they make. For donations by text message, a telephone bill will meet the recordkeeping requirement if it shows the name of the donee organization, the date of the contribution and the amount of the contribution. For cash contributions made by other means, be sure to keep a bank record, such as a cancelled check, or a receipt from the charity showing the name of the charity and the date and amount of the contribution. Publication 526 has further details on the recordkeeping rules for cash contributions.

Click here for a PDF of the article that appeared in North Carolina Lawyers Weekly.

By Allan Tarleton, J.D. and Carlye Hendershot, RN, MSN, FNP, LNCC

Presented at the North Carolina Chapter of the American Society for Healthcare Risk Management Fall Conference in Asheville, NC, November 11-13, 2009

context

The Healthcare Chain of Communication

Most healthcare providers today rely to a great extent on the results of diagnostic testing to make key clinical decisions. Core to this decision-making process in both routine and critical medical situations is the communication of test results to the responsible licensed healthcare professional who will ultimately act upon these results. This chain of communication becomes even more crucial when failure to act upon an abnormal test report could lead to an adverse patient outcome. In the context of increasingly complex healthcare systems, there are multiple contexts where the chain of communication can be interrupted. These interruptions can potentially delay care, jeopardize patient safety, and increase the risk of litigation. Further, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)’s Patient Safety Goals and Centers for Medicare Services (CMS)’s Conditions of Participation (COP) call for healthcare entities to comply with certain requirements related to communication of test results.

Weak Links in the Chain?

While many critical improvements in patient safety for both inpatient and ambulatory care settings have been made in recent years, there is evidence that delays and failures in diagnostic test reporting remain serious areas of concern. For example, it has been demonstrated that the more individuals a test report must go through before reaching the responsible licensed professional, the more opportunities for error there are. Recent research studies, as well as clinical and litigation experience, identify some other key situations in the test reporting process where “weak links” of communication may exist:

·        Inadequate documentation

·        Test results are still pending after patient discharge

·        Test results are pending when a patient is “handed off” to another healthcare provider (i.e., admission from the Emergency Department to an inpatient bed, nursing and medical staff shift changes and coverage during breaks, transferring to and from surgery, medical staff transfer of “on-call” responsibilities, transfer to another facility)

·        Lack of clear, enterprise-wide procedures for critical test reporting

·        Lack of quality monitoring for effectiveness of test reporting procedures

·        Lack of staff training (initial and ongoing) regarding critical test reporting procedures, particularly for part-time, per diem, and temporary staff

·        Staff “work-arounds” (using short-cuts rather than following established procedures step-by-step)

·        Confusion about which team member is to follow-up on test results

·        Team member fatigue and distraction

·        Basic human communication difficulties, particularly when systemic in nature

·        Test results difficult to access or read

·        Problems with equipment such as printers and fax machines or with technological processes

·        Timing of information transfer (i.e., weekends, evenings, holidays)

·        Lab and radiology test outsourcing

·        Language barriers with the patient

·        Undocumented conversations between clinicians

Lab vs. Radiology Test Reporting

Some considerations are specific to either lab or radiology reporting. For example, communicating abnormal lab results typically has multiple steps in an inpatient setting, beginning with an “objective trigger” (i.e., a critical level) and flows from lab technician to whoever answers the telephone in the patient unit (usually a ward clerk), to a responsible licensed healthcare professional (usually a nurse), and finally to the ordering provider.

For abnormal radiology reports, there is most often a subjective decision on the part of the radiologist to report directly to the ordering physician. Some institutions have adopted policies whereby certain defined “red flag” results, such as intracranial bleeding, automatically trigger an alert process. Another current area of interest for radiology reporting is the suggestion that radiologists should report results directly to the patient, which raises the concern of direct liability for the radiologist. At this time, there are two situations generally acknowledged to prompt direct reporting of radiology results to patients: when the radiologist cannot reach a responsible physician to report a critical finding, and for abnormal mammogram results. In a situation that could immediately threaten life or limb, the patient should be instructed to go to the nearest emergency department for evaluation if the ordering provider cannot be reached.

In all cases, the alerting method itself, whether electronic or manual, can be subject to human error which interrupts the chain of communication. Further, inadequate documentation of the communication process is frequently a major contributing factor for subsequent litigation actions even if the process was executed appropriately.

Improving the Communication of Test Results

While there are clearly areas of concern regarding communication of critical diagnostic testing information in a healthcare setting, there are approaches that have been demonstrated to improve communication of test results, which in turn result in improved patient safety and reduced risk of litigation.

Some suggestions include:

·        Address underlying issues leading to unconscious errors (fatigue, interruptions)

·        Educate staff, including medical staff,  regarding basic communication skills

·        Evaluate systems: flow, equipment, electronic and/or  paper forms

·        Adopt clear and understandable policies and procedures

·        Educate staff regarding reporting procedures, determine competency, re-educate on a regular basis, and document this process consistently (pay particular attention to non-fulltime staff)

·        Monitor department-to-department and medical staff compliance with reporting policies and procedures

·        Encourage non-punitive adverse event reporting

·        Conduct thorough investigations of adverse events related to failure to communicate test results

·        Focus initial interventions for improvement on tests identified as high risk for adverse impact on patient outcomes (for example, tests associated with possible malignancy, acute coronary syndrome or intracranial bleeding)

·        The communication process should include who, what, where, and when and resultant action

·        The receiver should read back this information to the giver

·        Both the information giver and receiver should document the above process in its entirety—every time

·        Depending on the situation, consider reporting results directly to patients

·        Evaluate post-discharge follow-up processes

·        For discharged patients with abnormal test findings that require follow-up, make a diligent effort to contact the patient, and document this process carefully (this could include phone calls to the patient or emergency contact, sending a registered letter or, in extreme situations, requesting law enforcement officers to notify the patient in person)

While some of these suggestions may seem basic, the unfortunate reality is that failure to ensure that these guidelines are followed results in unnecessary errors—and subsequent litigation—on a recurrent basis. The good news is that these types of errors are usually readily identifiable…and the “fix” is usually within reach.

Refer to the CMS and JCAHO requirements below for additional information related to this topic.

CMS and JCAHO Compliance Information

CMS Laboratory Reporting Requirements for Clinical Laboratory Improvement Act (CLIA)

§493.1234 Standard—Communications: The laboratory must have a system in place to identify and document problems that occur as a result of a breakdown in communication between the laboratory and an authorized person who orders or receives test results.

§493.1291 Standard—Test report: The laboratory must immediately alert the individual or entity requesting the test and, if applicable, the individual responsible for using the test results when any test result indicates an imminently life-threatening condition, or panic or alert values.

Interpretive Guidelines §493.1291(g): The laboratory records should document the date, time, test results, and person to whom the test results were reported.

Probes §493.1291(g):

What means does the laboratory use to ensure the person ordering a test or the caregiver is alerted in a timely manner to critical or panic test results?

Joint Commission’s National Patient Safety Goal 2: Lab Reporting

•         Critical values are findings that require rapid communication of results

•         Must have a policy outlining what is considered a critical value

•         Key measurement is the time between identifying the critical results and reporting the results to responsible licensed caregiver

•         For telephone reporting of critical test results, the individual giving the test result verifies the complete test result by having the person receiving the information record and “read back” the complete test result.

A group of lawyers and judges in Western North Carolina has formed the Western District of North Carolina Chapter of the Federal Bar Association (“FBA”).  The organization will focus primarily on the needs of federal judges and practitioners in the District.

Founded in 1920, the FBA was originally designed as a professional organization to serve federal judges and government lawyers.  In the 1980s, attorneys engaged in private practice, along with law students, were allowed to join the FBA’s ranks.  Since then, the FBA’s membership has swelled to nearly 16,000 members across the United States, with over eighty (80) active chapters across the country and in Puerto Rico and the U.S. Virgin Islands.

In September of 2009, several lawyers and federal judges petitioned the FBA for permission to open a chapter in the Western District.  The application was allowed by the FBA’s Board of Directors and a charter for the group, which is the first of its kind in North Carolina, was presented at the FBA’s annual meeting in Oklahoma City shortly thereafter. 

The chapter has elected its first slate of officers–W. Carleton Metcalf, Esq. (President), U.S Magistrate Judge David S. Cayer (Vice President), Assistant U.S. Attorney Amy Ray (Secretary), retired Superior Court Judge Forrest Ferrell (Treasurer)—and is busy planning events for 2010.

Persons interested in the Western District’s Chapter or the FBA generally are encouraged to contact one of the chapter’s officers directly or the FBA national office at (571) 481-9100 or on the web at www.fedbar.org.  Details on specific events will also be forthcoming.

Esther Manheimer is sworn in as an Asheville City Council member on December 8, 2009.