Medical Malpractice Risk Management

Medical Malpractice Risk Management

R. Monty CaryR. Monty Cary PA-C, M.Ed., DFAAPAPA-C, M.Ed., DFAAPA

Senior Partner Senior Partner Cary Associates, LLC.Cary Associates, LLC.

• Not intended as legal adviceNot intended as legal advice

• The cases are realThe cases are real

• Best learning is by exampleBest learning is by example

• No pharmaceutical supportNo pharmaceutical support

Disclaimer

DocumentationDocumentation

PITFALLS OF MEDICAL M

ALPRACTICE

COMMUNICATIONS

SUPERVISIONSUPERVISION

ReferralReferral ExaminatioExaminatio

nn

Failure to Diagnose

Medical Malpractice Process

Being put on noticeBeing put on notice

DiscoveryDiscovery

DepositionDeposition

Preparation for trialPreparation for trial

Conclusion on the caseConclusion on the case..

Reaction To A Medical Malpractice Lawsuit

That it can’t be happening That it can’t be happening to me.to me.

You don’t want to believe it.You don’t want to believe it.

You’re thinking, “I’m too You’re thinking, “I’m too young to be sued”young to be sued”..

My career is overMy career is over

I’ve been carefulI’ve been careful

I know that I didn’t do I know that I didn’t do anything wronganything wrong..

Reaction To A Medical

Malpractice Lawsuit

You recognize its not a You recognize its not a dreamdream

You are really being suedYou are really being sued

The court room is not like The court room is not like the office, hospital or clinicthe office, hospital or clinic..

Reaction To A Medical

Malpractice Lawsuit

In The Court Room

You’re Like A You’re Like A

Duck Duck

Out Out

Of Of

WaterWater..

After Learning About The Lawsuit

• Not being able to practice Not being able to practice like you would like tolike you would like to

• Not being able to focus on Not being able to focus on patients like you shouldpatients like you should

• How do your co-workers feel How do your co-workers feel about you?about you?..

After Learning About The Lawsuit

• You are distraughtYou are distraught

• The very idea of someone The very idea of someone questioning your abilityquestioning your ability

• What will you do the next What will you do the next time you see the patient?time you see the patient?..

Higher Degree of Self Doubt

• Why do I feel guilty?Why do I feel guilty?

• Did I screw up?Did I screw up?

• Did I cause the problem?Did I cause the problem?

• Am I going to win or lose the Am I going to win or lose the case?case?..

Common Sense Risk Management Strategies

Risk Management Strategies

• Reduces medical liability Reduces medical liability exposureexposure

• Ultimately provides better Ultimately provides better care for your patientscare for your patients..

Risk Management Strategies

• A more organized office, A more organized office, clinic or hospital operationclinic or hospital operation

• Fewer chances of important Fewer chances of important details to fall through the details to fall through the crackscracks..

Discovery Rule

• Statutes of Limitations – Puts the Statutes of Limitations – Puts the Plaintiff on NoticePlaintiff on Notice

• When the Plaintiff knows or When the Plaintiff knows or should have knownshould have known

Discovery Rule

• Twenty Two Months to be Twenty Two Months to be reportedreported

• Thirty Four Months for the claim Thirty Four Months for the claim to be resolvedto be resolved

• Total of Fifty Five MonthsTotal of Fifty Five Months..

Medical Malpractice Cost

• $17,000 - $25,000 for an Out-$17,000 - $25,000 for an Out-of-Court Settlementof-Court Settlement

• $75,000 - $112,000 to take it $75,000 - $112,000 to take it to verdictto verdict..

Case In Point

Four Years Later A Malignant TumorFour Years Later A Malignant Tumor

Seven Years – Surgical TowelSeven Years – Surgical Towel

Medical Malpractice Medical Malpractice DefinedDefined

•Medical Malpractice can be defined as Negligence on the part of the Physician, Allied Healthcare Provider or Hospital which causes Physical or Emotional Damage to the patient.

Medical Malpractice Medical Malpractice DefinedDefined

•Duty

•Breach

•Causation

•Injury - Damages

Duty

Provider – Patient RelationshipProvider – Patient Relationship

Implied ContractImplied Contract

Breach

Standard of CareStandard of Care

External / InternalExternal / Internal

Causation• Cause In Fact – The providers Cause In Fact – The providers

negligence caused the injurynegligence caused the injury

• Or a reasonable close connection Or a reasonable close connection existed between the provider’s existed between the provider’s conduct and the patient’s injuryconduct and the patient’s injury

• Must prove that the provider was the Must prove that the provider was the “Cause-In-Fact” of the patients injury“Cause-In-Fact” of the patients injury

Injury / Damages

• Death – Disability – Deformity Death – Disability – Deformity – Severe Pain– Severe Pain

• Special – Lost Wages – Out-Special – Lost Wages – Out-of-Pocket Expensesof-Pocket Expenses

Injuries / Damages

• General – Intangible Losses – General – Intangible Losses – Pain – Suffering – Emotional Pain – Suffering – Emotional DistressDistress

• Punitive Damages – Punitive Damages – FraudulentFraudulent

CaseCase

Medical Malpractice 1

•How would a reasonable, careful and prudent doctor, allied health care professional or hospital behave in the same or similar circumstances?

Medical Malpractice 2Medical Malpractice 2

•Did the doctor, allied healthcare professional or hospital breach the Standard of Care in this specific situation?

Medical Malpractice 3

• Was the unreasonable, Was the unreasonable, careless, inappropriate careless, inappropriate behavior on the part of the behavior on the part of the doctor, allied healthcare doctor, allied healthcare professional or hospital the professional or hospital the proximate cause of the injury proximate cause of the injury to the patient?to the patient?..

National Practitioner Data Bank

•The Health Care Quality Improvement Act of 1986

•Public Law 99-660•Doctors – Dentist – Allied

Healthcare Providers•Licensed – Certified –

Registered

National Practitioner Data Bank

•62% of cases are dismissed or dropped

•32% in favor of the plaintiff

•6% of cases go to trial

National Practitioner Data Bank

Sept 1, 1990 to Oct 11, 2008

• Physicians (All) 254,678

• Physician Assistants 1,299

• Nurse Practitioners 812

• Nurses 4,459

National Practitioner Data Bank

Sept 1, 1990 to Oct 11, 2008 Physician Assistants

New York 180 Florida 131 Texas 98

California 96 Michigan 77 North Carolina 71 Arizona 59 Washington 51 Georgia 45 Pennsylvania 38

2004 NPDB StatisticsPhysician Assistants

135 Payments for 2004135 Payments for 2004 Average = $180,787.00Average = $180,787.00

63 63 MisdiagnosisMisdiagnosis40 40 Treatment ErrorsTreatment Errors15 15 Medication ErrorsMedication Errors 6 6 Failure to MonitorFailure to Monitor 5 5 Surgical ErrorsSurgical Errors 3 3 MiscellaneousMiscellaneous 1 1 OB OB 1 1 Equipment Failure Equipment Failure 1 1 IV / Blood Products IV / Blood Products

RelatedRelated

2005 NPDB StatisticsPhysician Assistants

110 Payments for 2005110 Payments for 2005 Average = $98,875.00Average = $98,875.00

64 64 MisdiagnosisMisdiagnosis21 21 Treatment ErrorsTreatment Errors13 13 Medication ErrorsMedication Errors 1 1 Failure to MonitorFailure to Monitor 5 5 Surgical ErrorsSurgical Errors 4 4 Miscellaneous Miscellaneous 1 1 Equipment FailureEquipment Failure

2006 NPDB StatisticsPhysician Assistants

113 Payments for 2006Average = $234,635.02

65 Diagnosis related33 Treatment related

4 Medication 4 Surgery

3 Monitoring 2 Anesthesia 1 Obstetrics 1 Miscellaneous

2007 NPDB StatisticsPhysician Assistants

94 Payments for 2007Average = $90,875.00

45 Diagnosis Related24 Treatment Related11 Medication Related 5 Surgery Related 4 Monitoring Related 2 Other 2 Obstetrics Related 1 Anesthesia Related

Physician Assistants

• Inadequate Supervision• Inadequate Examination•Untimely Referral•Failure to Diagnose

•Lack of Documentation•Poor Communications

Physician Assistants

Inadequate Supervision

• Legal requirements for the state are met.– Three Visit Rule – Narcotic Medications

• Limited physician supervision.– Satellite Clinic – Case

• Documentation of supervision is incomplete.– If it is not written . . .

Physician Assistants

Inadequate Examination

• Always confirm & expand on the Chief Complaint.

• Do not take some else's triage. • You must always perform a

complete physical examination for the history taken.

Physician Assistants

Untimely Referrals

• All providers must ensure timely referrals

• Not sending the patient to the supervising physician, Emergency Room, other medical specialties.

Physician AssistantsPhysician Assistants

Failure to Diagnose • Uncertain about the assessment

of a patient. • Patients condition does not

follow the anticipated course.• Not understanding reports. • 51.4% medical malpractice suits

are Failure to Diagnose.

Physician Assistants

Lack of Documentation

• Five years from now, if someone reads your record on a patient you saw today, will they get an accurate picture of your care or will what is missing in the record speak louder than what you noted?

Documentation

“The Witness Whose The Witness Whose Memory Never Fades”Memory Never Fades”

Serves Three Purposes

1. Reminds the healthcare professional what s/he has done for and to the patient.

2. Alerts other healthcare professionals what has been done for and to the patient.

3. It is a LEGAL RECORD.

S.O.A.P.E.R.• S – Subjective S – Subjective • O – ObjectiveO – Objective• A – AssessmentA – Assessment• P – PlanP – Plan• E – Patient EducationE – Patient Education• R – Reaction to Patient R – Reaction to Patient

Education Education. . EBIEBI

Strengthening The Medical Record

•Establish a consistent method of charting and organizing the record.

•Note ALL conversations with patients including phone calls.

• Initial and date the documents you review. Case – PSA.

Strengthening The Medical Record

•Write a full note. Write the positives and the negatives.

•Limit Abbreviations – Case – STD’s

•Do not use “Dictated But Not Reviewed”.

“Dictated But Not Reviewed”

“The patient had a baloney amputation in 1989” – A below the knee amputation.

• “Patient had a pabst beer today” – A pap smear.

• “The patient was found in the bathroom without a purse”. – Without a pulse.

Documentation

DictatingDictating

• Easiest and best way to document

• Eliminates the hassle of writing messages on slips of paper

• Encourages a more complete note

Documentation Dictating

•Phone conversations are less burdensome.

•Reduces the risk of communications being over looked.

•175 words dictated vs. 87 words written.

Legibility

If the note is written, it must

be Legible Case

Legibility

• Texas Cardiologist / Pharmacist

• Rx Isordil 20 mgs Q 6 H

• Pharmacist filled with Plendil – max daily does of 10 mgs

• Resulted in an MI and eventually death

Legibility

• Court found Physician’s illegible handwritten prescription the cause

• First verdict finding a physician culpable solely due to poor penmanship

• Each paid $225,000.00.

Professionalism

Professionalism

and

Documentation

Go Hand – In – Hand

Physician

““If the nurses around this If the nurses around this hospital would read the hospital would read the medication orders, we medication orders, we wouldn’t have medical wouldn’t have medical emergencies like this one”emergencies like this one”

Nurses

“If the physicians around this hospital would learn to write so we could read it, there wouldn’t be medication emergencies like his one”.

Do Not ALTER The Record

SLIDE•SL – Single Line through the

entry• I – Initial the late entry as an Error •D – Date the entry•E – Note “ERROR” in the area.

Documentation

• Single Black Female seeks male companionship, ethnicity unimportant. I am good looking and love to play. I love long walks, riding in your pick-up truck, hunting, camping, fishing and cozy nights lying by the fire. The right person will have me eating out of their hand. Rub me the right way and watch me respond. I will meet you at the door when you come home. I’m yours. Call 404-875-6240 and ask for Daisy.

Atlanta Humane Society

Communications

Communications

• Although you will not find POOR COMMUNICATIONS listed anywhere as an official cause of MEDICAL MALPRACTICE CLAIMS, it underlies almost every malpractice action.

• Contributing factor is 80%.

Communications

• It is the combination of long wait times and a short visit with the physician that yields the most negative results on patient satisfaction

• Patients who have short wait times and adequate patient-doctor exam room time are the most satisfied patients

Confidentially

•HIPAA – Health Insurance Portability & Accountability Act of 1996 – April 14, 2003

•Office •Pharmacy EVERYWHERE!•Hospital•Clinic

Confidentially

• 32 YO/WF who was not feeling well• Went to see her Family Physician• A pregnancy test was done• Pt instructed the doctor not to

even tell her husband the results of the test

• Mother-in-Law wanted to know !• Laboratory worker told results.

E-Mails• Considered a business documentConsidered a business document

• Can be subpoenaedCan be subpoenaed

• Subject to DiscoverySubject to Discovery

• Civil / Criminal proceedingsCivil / Criminal proceedings

E-Mails

• No longer in your control No longer in your control once it is sentonce it is sent

• Sensitive informationSensitive information

• STOP and THINK before you STOP and THINK before you SENDSEND..

Tampering Alert Signals

•Asking For Original Records•Missing Medical Records•Records Conflict With Patients Testimony

•Different Ink on Single Entry

•Different Handwriting.

Tampering Alert Signals

•Handwriting too neat•Late entry or out of sequence•Additions to the chart•Erased – Obliterated – White

Out•Long dictated or hand written

when usually “One-Liners”.

Tampering Alert Signals

•Dictating Weeks / Months After Patient is Seen

•Medical Malpractice cases have been won and lost on the issues of tampering.

Implications For The Plaintiff

• Will strengthen the caseWill strengthen the case• Appears to be Dishonest / Appears to be Dishonest /

DeceitfulDeceitful• Will make a Good Case BetterWill make a Good Case Better• Will make a Poor Case GoodWill make a Poor Case Good• Plaintiff’s Attorney is in Plaintiff’s Attorney is in

ControlControl..

Implications For The Plaintiff

• Seen as a “Cover Up” by The Jury

• Plaintiff is Awarded Punitive Damages

• Can Be in The Millions Case in point

• Juries Response is ANGER.

Implications For The Defendant

• ““KISS OF DEATH”KISS OF DEATH”• Impossible to DefendImpossible to Defend• Almost Certain to Settle Almost Certain to Settle • Stops Your Power to BargainStops Your Power to Bargain• MAYNOT be Covered by MAYNOT be Covered by

Medical Malpractice Medical Malpractice Insurance – Fraud!Insurance – Fraud!..

Implications For The Defendant

•Defendant Will Lose Creditability

•Other Defendants Will Be Implicated

•May Lose Your License – Criminal Offense.

Why Patients Don’t Sue

•Takes Too Long Takes Too Long

•Too Little ValueToo Little Value

•The Doctor is A FriendThe Doctor is A Friend

Thank You & Enjoy The Conference

Thank You & Enjoy The Conference

Thank You & Enjoy The Conference

The End

12 Suggestion to keep in mind when being sued

1. No one cares as much about the case as you do.

2. Make sure your attorney is the best money can buy.

3. Your responsibility is to educate the attorney on the medical aspects involved in the case.

12 Suggestions

4. A deposition is easier than the NCCPA Board Exam

5. Don’t volunteer information to the opposition, answer only the question given.

6. Ask about any legal proceeding you don’t understand.

12 Suggestions12 Suggestions

7. Don’t underestimate the 7. Don’t underestimate the plaintiff’s attorney.plaintiff’s attorney.

8. Don’t argue with the plaintiff's 8. Don’t argue with the plaintiff's attorney. attorney.

9. Accept support from 9. Accept support from colleagues, friends and patients.colleagues, friends and patients.

12 Suggestions

10. If there is a good chance of loosing – Settle

11. Know your deposition when you go to trail.

12. Your spouse is going through hell as well, be kind to them.

YouYou

Have A Great Conference

The End

Questions Question 1

Developing risk management strategies in your practice can:

1. Reduce medical liability exposure2. Provide better care for the patient3. Provide a better organized office

operation4. Fewer chances of important details

to fall through the cracks5. All of the above

QuestionsQuestion 2

Your reaction to a medical malpractice law suit are:

1. You are distraught2. Your not going to be able to practice like

you would like to.3. Your not going to be able to focus on

patients like you would like to4. The very idea of someone questioning

your ability 5. All of the above

Questions

Question 3The Discovery Rule states that the:

1. Average claim takes about 22 months to be reported after a medical incident

2. Statute of limitations does not begin to run until the happenings of the event puts the plaintiff on notice

3. Courts should not be faulted for blameless ignorance

4. All of the above

Questions

Question 4All of the following except are elements of a medical malpractice law suit:

1. Duty 2. Breach3. Blameless Ignorance4. Causation 5. Injury – Damage

Questions

Question 5

True or False – The Duty to care arises from the provider-patient relationship that is an implied contract:

1. True

2. False

QuestionsQuestion 6

The National Practitioner Data Bank was the inception of:

1. The Health Care Quality Improvement Act of 1986

2. NSR 725-623. Health Insurance Portability &

Accountability Act of 19964. CME – 6082 - 2005

Questions

Question 7In a medical malpractice law suit, the most difficult element to prove is:

1. Duty 2. Breach 3. Causation 4. Injury

Questions

Question 8

The medical record has been known as:

1. The witness whose memory never fades2. A legal record3. What you will do for and to the patient4. What has been done to and for the patient

Questions

Question 9

Dictating the medical record is the:

1. Easiest and best way to document2. Eliminates the hassle of writing

messages on slips of paper3. Encourages a more complete note4. All of the above

QuestionsQuestion 10

All of the following except are a communication success:

1. Careful to explain what you are doing2. Encourage you patient to talk more3. Spend less than 15 minutes with the

patient4. Use more humor and laughed more

5. All of the above

Answers

1. 52. 53. 24. 35. 16. 17. 38. 19. 410.3

Before you return from your business trip, I just want to let you know about the small accident

I had with the pick up truck when I turned into the driveway. Fortunately, not too bad and I

really didn't get hurt, so please don't worry too much about me.

I was coming home from Wal-Mart, and when I turned into the driveway I accidentally

pushed down on the accelerator instead of the brake.   

The garage door is slightly bent, but the pick up fortunately came to a halt when it bumped into your car.

 I am really sorry, but  I know with your kind-hearted personality you

will forgive me.  

You know how much I love you and care for you my sweetheart.

I am  enclosing a picture for you.  

I cannot wait to hold you in my arms again .

Your loving wife. XXX

PS. Your girlfriend called......................

PS. Your girlfriend called......................

. During a patient's two week follow-up appointment with his Cardiologist, he > > informed me, his doctor, that he was having trouble with One of his me > > dications. > > 'Which one?' I asked. > > 'The patch, the nurse told Me to put on a new one every six hours and now I'm > > running out of places To put it!' > > I had him quickly undress and discovered what I hoped I W ouldn't see. > > Yes, the man had over fifty patches on his body! Now, the Instructions > > include removal of the old patch before applying a new one. > > Submitted by Dr. Rebecca St. Clair, Norfolk , VA