President's Message:

Happy New Year!

At the beginning of the year, as I sat in my office contemplating what I wanted to convey to the MSHRM membership, I began to think about New Year's resolutions. At the beginning of each year, most of us seem to make some sort of promise to ourselves, whether it is in the form of a formal resolution or otherwise, about the upcoming year.

We are all familiar with the most common resolutions. We vow to lose weight, exercise more (my perennial resolutions), stop smoking and save money. Whether we keep our annual promises to ourselves or not, it seems to me that all New Year's resolutions have something in common; they are all about making improvements in our lives. The beginning of the calendar year seems about as good a time as any to make improvements to ourselves.

Whereas, MSHRM may not be able to help you keep your resolutions to make improvements in your personal life (although, because I have made many personal friends through my membership in MSHRM, I would argue that membership certainly has its potential benefits in your personal life), I believe that MSHRM is the perfect organization to assist in improving your professional life.

How can MSHRM help improve your professional life? It's easy. Get involved. I know that I sound like a broken record, because I seem to tell anyone who is willing to listen how my involvement in MSHRM committees, on the Board and as an Officer has enhanced my enjoyment of the organization and my understanding of the profession of risk management.

I know my experience in MSHRM is not unique. I would encourage you to talk with almost any committee member, Board member, Officer or Past President, and, I believe, they will provide you with a similar story of their experience in MSHRM. It is my sincere belief that your involvement in MSHRM will enhance your membership ten-fold, and that, in turn, will improve your professional life. So, join a committee. Run for a Board position. Volunteer to speak at an upcoming event. Write an article for the "Bits N' Pieces." It is an easy resolution to keep.

What's going on in MSHRM?
The MSHRM Fall Education program, "Navigating Cyber Risk in Today's Hi-Tech World", was held on October 4, 2011 and was very well attended. The variety of speakers' different perspectives on the impact of computers and technology in healthcare made for an interesting and educational day.

In October, the ASHRM Annual Conference was held in Phoenix and it was a great opportunity for attending education sessions and networking with many colleagues from Michigan and around the country. Janelle Mickelson and I attended the Chapter Leader workshop and shared some of our successes and got some great ideas to bring back to the MSHRM Board.

The coming year will be a busy and exciting time for MSHRM members. Mark your calendar for the Spring Education Program which will be held on March 6 at the Henry Center. With the way this warm winter has gone, hopefully it will not be winter for the "spring" program! The Annual Education Program will be held May 23 – 25 at the Grand Traverse Resort in Traverse City.

I would like to thank the Board of Directors and Committee Chairs and members for their efforts to support MSHRM and its mission. I am thankful to work with such a great group! Also, a special thanks to our sponsors; their generosity allows us to provide quality speakers and programs to our membership. On behalf of the Board of Directors, best wishes for a happy, healthy New Year!!

Respectfully,
Chris Allman
MSHRM President

R. Paul Venzke Award Nominations

The R. Paul Venzke Award for Outstanding Performance in the Field of Healthcare Risk Management was created by the Michigan Society of Healthcare Risk Management (MSHRM) in honor of the late R. Paul Venzke, a founder and the first President of MSHRM. Each year MSHRM selects from the nominees one candidate who best exemplifies the qualities of excellence and professionalism for receipt of this prestigious award.   The nomination request letter and nomination form was mailed in early Janaury 2012.  Nominations will be accepted until February 29,2012 and the winner will be announced at the Annual Meeting in May 2012.

Scholarship and Hardship Applications

MSHRM offers a scholarship program for individual members who are seeking access to educational and professional development opportunities within the fields of risk management, loss prevention, loss reduction, patient safety, and risk financing.

Knowing that some members are facing cutbacks that will impact their ability to maintain their membership in MSHRM, the Board has adopted a policy to waive the annual MSHRM membership dues based upon financial hardship for a limited number of applicants.

The scholarship/hardship applications are available in the members' only section of the website. The submission deadline is February 24, 2012. Contact info@mshrm.org or (616) 755-8488 with any questions.

Regional Social Gatherings

A regional social gathering was held in the Grand Rapids area in November 2011 with 15 members in attendance. An evening of socializing was enjoyed by all.

Plans are underway for social gatherings in Spring 2012. Contact the following people if you have any ideas for an event or meeting location:

• Grand Rapids - Carrie Miedema at cmiedema@zch.org
• Northern Michigan - RJ Neeland at rneeland@northernhealth.org or Janelle Mickelson at jmickelson@coverys.com
• Southeast Michigan - Carole Empey at cempey@fbmlaw.com

Bernard Orgovan, Jr.

MSHRM member Bernard Orgovan, Jr. passed away on December 22, 2011. He was a Clinical Support Services Manager for Emergency Physicians Medical Group, PC. A sympathy card was mailed to his family on behalf of MSHRM members.

Membership Committee
Chair - Carole Empey

Currently membership consists of 238 members. Welcome to the following new members approved at the October 2011 and January 2012 Board meetings:

Education Committee
Chairs - Karen Adkins-Bley and Theresa Todd

The MSHRM Education Committee has been active preparing interesting, motivating and relevant sessions for our membership. We appreciate the members' recommendations for presentations and speakers and use this information for planning the themes and sessions for the education meetings.

Our Spring Education Meeting will be held on Tuesday, March 6, 2012 at the Henry Center in East Lansing. This session's theme is "Is Risk Management in the Loop?" with presentations on Enterprise Risk Management and Cost of Risk, Physician Office Risk Assessment, Mergers and Acquisitions, and an update on PSOs from the Michigan Hospital Association.

Mark your calendars for the Annual Meeting at the Grand Traverse Resort, May 23-25, 2012! This session promises to be full of information including "tools" to take back to your workplaces, stimulating speakers and a touch of humor!

Government Issues
Chairs - Brian Molde and Jason Sebolt

Michigan Supreme Court Decision in Jilek v. Stockson

The Michigan Supreme Court has issued the long-awaited decision in Jilek v Stockson, and it is a victory for healthcare providers.

The Supreme Court summarily reversed the Court of Appeal's holding that the applicable standard of care for a physician board-certified in family practice medicine but practicing in an urgent care facility was that of an emergency medicine physician. The Supreme Court succinctly held, "[T]he appropriate standard of care was 'family practice' because the defendant physician is board-certified solely in family practice." The Supreme Court added that it was proper to allow the jury to consider the setting in which the physician was practicing, i.e., urgent care as opposed to an emergency medical facility.

The Supreme Court also reversed the Court of Appeal's holding that the urgent care center's internal policies and procedures could be used as evidence of a breach of the standard of care. It reasoned that the case was indistinguishable from prior case law holding that policies and procedures were inadmissible for purposes of establishing the standard of care.

What this means…

Health care providers can be reassured that their conduct will not be judged by an inapplicable standard artificially dictated by a plaintiff's convenient characterization of the type of care provided. Rather, their conduct will be judged by someone with similar knowledge, skill and experience.

Hospitals can be reassured that their internal policies and procedures are inadmissible to establish the standard of care. Plaintiffs' attorneys will no doubt continue their efforts to seek admittance of policies and procedures for other reasons. Also of note, Jilek does not address the discoverability of policies and procedures. Nevertheless, a plaintiff must still overcome a relevancy objection, which may be more difficult when the policies are not otherwise admissible.

Sixth Circuit Court of Appeals Ruling in Hadden v. United States

On November 21, 2011, the U.S. Sixth Circuit Court of Appeals held in Hadden v. United States that under the Medicare Secondary Payer Act ("MSP"), Medicare was entitled to recover 100% of its conditional payment demand asserted in the case regardless of the fact that the plaintiff may have received a reduced settlement or that the settlement compensated the plaintiff for only a portion of his damages.

The action at issue arose on August 24, 2004, when plaintiff Vernon Hadden was injured after being struck by a vehicle owned by Pennyrile Rural Electric Cooperative Cooperation. This accident occurred when an unidentified motorist ran a stop sign forcing the Pennyrile vehicle to veer to the left; in the course of doing so the vehicle struck Hadden. Hadden's medical bills totaled $82,036.17. Medicare paid his bills in full because Hadden was a Medicare beneficiary.

As a result of this accident, Hadden sued Pennyrile. The parties eventually settled for $125,000 in exchange for a full release of Hadden's claims against Pennyrile. After the settlement, Medicare asserted a conditional payment recovery demand in the amount of $62,338.07 pursuant to the MSP. Under the Medicare Secondary Payer Act, Medicare is only a secondary payer as to medical expenses for which another entity (e.g. a tortfeasor) bears primary responsibility. That Act allows Medicare to seek reimbursement for any expenses it paid if the beneficiary receives a payment from the responsible entity.

However, Hadden objected to reimbursing Medicare this amount. Hadden argued that Medicare's claim should be reduced based on Kentucky comparative fault allocation principles. Specifically, he argued that in this case, an unidentified motorist was 90% at fault, and Pennyrile was only 10% at fault. Thus, he argued that he was only compensated for 10% of his medical expenses since he only settled with Pennyrile. In short, Hadden argued that Medicare should be permitted to recover no more than 10% of its conditional payment claim from the settlement. Hadden also argued that Medicare's claim should be reduced based on equitable allocation principles or waived per the applicable "waiver" provisions under the MSP.

The Sixth Circuit ruled against Hadden and in favor of Medicare, thereby permitting Medicare to recover 100% of its claimed conditional payment demand. In reaching this decision, the court focused primarily on what it viewed as the "plain language" of the term "responsibility" under 42 U.S.C. 1395y(b)(2)(B)(ii) as that term was clarified under the 2003 amendment to the MSP. The court ruled that based upon the definition of responsibility, the scope of a primary plan's "responsibility" for the beneficiary's medical expenses and thus of the beneficiary's own obligation to reimburse Medicare is ultimately defined by the scope of his own claim against the third party, regardless of whether that claim is later compromised or reduced by settlement. Thus, since the beneficiary, Hadden, sued for all of his medical expenses, that was the scope of the responsibility to Medicare, despite the fact that Pennyrile was only responsible for 10% of the claim under comparative fault principles.

Judge White dissented from the majority opinion. Judge White took issue with the majority's equating of the term "responsibility" with the entire amount that must be reimbursed to Medicare. Judge White stated that the 2003 MSP amendments defining responsibility were meant to only clarify that tortfeasors are primary plans subject to the MSP's reimbursement provisions, and they did not relate to the amount of reimbursement due Medicare. Judge White opined that the MSP is silent on the issue of the amount due. Further, according to her, the majority opinion and CMS policy regarding conditional payment recovery could discourage settlements.

New Administrative Rules Regarding Required Reporting of CT Medical Events
By: Janet Bigelow, RN, BSN, JD, CPHRM

New administrative rules relating to the use of computerized tomography became effective in June of 2011. Of particular interest is Rule 325.5703(c), which defines a CT Medical Event as "an unintended event where a physician determines that actual damage has occurred to an organ or a physiological system of an individual due to, or suspected to be due to, exposure to diagnostic radiation from a CT scanner". Rules 325.5715(2) & (5) require reporting of all CT Medical Events to the Michigan Department of Licensing and Regulatory Affairs (LARA) Radiation Safety Section within 15 days of discovery of the event, as well as notification to the individual involved and the referring physician no later than one week after the event is discovered. A Reporting Guideline is available through LARA at www.michigan.gov.

Communication
Chairs - Carrie Miedema and Sherri Thrasher

Please make use of MSHRM's email discussion forum to interact with other members and gain real time feedback on issues you are facing in your organization.

Follow MSHRM on Facebook to stay up-to-date with chapter activities and view pictures from events! Simply search for the "Michigan Society of Healthcare Risk Management" page and click the like button.