MEDICAL MALPRACTICE

A REGIONAL OVERVIEW

Kamal Hamzah Regional Medical Malpractice ManagerASIA PACIFIC

March 2016

Section 1Medical Malpractice – Cause and Effect

Section 2Market Activity and Competitor

Behaviour

Section 3Risk Management

What is Medical Malpractice?

Medical malpractice (or clinical negligence) is the process by which a patient takes his or her medical attendants to a civil court for compensation. It is not about professional conduct or terms of service.

To prove negligence, a Claimant must show:

a) that the doctor owed a duty of care to the patient, b) was negligent in his or her management, and also c) that the patient suffered harm as a result. The Claimant has to succeed on both liability and causation to obtain compensation:

Liability to show that the doctor or nurse must have been found to have acted in a manner that no other similar professional would have done.

Causation that harm has resulted which would not otherwise have occurred (on the balance of probability, i.e. the action of the doctor or nurse was more than 50% likely to have caused the harm).

The Claimant's loss is then assessed in terms of quantum (loss of current and future earnings, reduced quality of life, mental anguish) and the recompense is money - nothing more and nothing less.

Duty of Care – Due diligence in the following

– Accurate assessment and diagnosis;

– Timely and appropriate investigations;

– Safe and effective treatment;

– Giving information on disease and medication;

– Obtaining consent of patient throughout the relationship;

– Appropriate and timely referral;

– Appropriate response when called to attend; and

– Maintaining medical confidentiality.

Causes of Negligence

1. Not having required skills

2. Performing skills incorrectly

3. Performing unauthorised skills

Anatomy of Errors

Medical errors can be catastrophic vs. the other professions

Holding accountability individual vs team: most of the time a team is involved

Complexity of the process of treatment

Variation of the disease profiles

Variation with the client

Vicarious Liability

• Vicarious liability – patient sues the hospital, not the doctor, since it has a “deep pocket”

• Occurs when employer held responsible for negligence of employee or someone under employer’s control

Civil Lawsuits

Anatomy of a Civil Lawsuit

• Suspicious Incident• Investigation• Filing of Lawsuit Within Statute of Limitations• Service of Complaint• Legal Representation Obtained and Answer Filed

MARKET ACTIVITY &COMPETITOR BEHAVIOUR

Market Activity & Competitor Behaviour

10

Market Conditions

Current soft market

Buoyant – Singapore, Hong Kong, Malaysia, Indonesia

Moderate opportunities – Thailand, Korea, Macau

Relatively quiet – Taiwan, Vietnam, NZ

Active Insurers – regionally

QBE (Facilities Level)

MPS (Individual Practitioner Level)

Mandatory Movements

11

Mandatory professional indemnity for Medical Practitioners are taking off in:

Malaysia

Macau

Vietnam

Examples of awards in the region

Severity of losses: Cost of care increasing exponentially in most jurisdictions round the world including Asia:

• Hong Kong, Mr & Mrs Singh (parent of Anjali Amber Sofia Singh vs MatildaHospital Incident in Dec 1998, claiming HK$500M or US$66M and settled in year2007 where Insurer paid full limit loss.

Imagine Vietnam in 9 years in 2024, what will settlements look like?

• Singapore, botched liposuction case of property tycoon Franklin Heng, largest recorded claim so far at S$5.3M

• Hong Kong and Singapore large claims can be in the region of US$500k - US$1m with odd high profile claim reaching up to US$4m

• Malaysia, ‘Samantha’ case

General Damages – RM 350K (US$84K) Special Damages – RM 3.5 Mil (Us$840K)

RISK MANAGEMENT

MAJOR LOSS CONTROL AREAS FOR HOSPITALS

* Risk management program support* Written risk management plan* Staff and employee education* Physician credentialing, peer review, and proctoring* Communication between physician, patient, and treatment team* Incident reporting* Claims handling* Independent risk management evaluations* Control of narcotics* Premises safety* Periodic inspection of biomedical equipment* Infectious disease control

Source:International Risk Management Institute, Inc

RISK MANAGEMENT PROGRAM SUPPORT

The key element

Reduces the incidence of liability claims against hospitals

Need to obtain support for the risk management program throughout all levels of the institution

From top-level administrators to staff physicians and employed nurses to maintenance personnel, gaining the backing of all persons who work in the hospital environment is critical and essential in controlling the exposures to professional liability risks in all health care environments

WRITTEN RISK MANAGEMENT PLAN

The existence of written guidelines for all of the broad areas of health care risk management is also essential to controlling losses. If specific guidelines do exist, efforts to control losses will be more successful.

STAFF AND EMPLOYEE EDUCATION

All hospitals should have formal loss control orientation programs in place for every new professional employee and staff member. Periodic continuing education should also be provided.

PHYSICIAN CREDENTIALING, PEER REVIEW, AND PROCTORING

Careful credentialing of physicians and other allied medical professional employees is a critical component of health care risk management.

Doctors are often the focal point of professional liability claims against hospitals

Important to install rigorous screening procedures before granting staff privileges to physicians.

Once on staff, the work of doctors should be continuously monitored by means of peer review committees. Doctors who generate a higher-than-normal rate of complaints or incidents can be more quickly identified as a result

CONT’D

Similarly, some hospitals routinely perform what are known as "chart reviews"

Examination by a standing committee of the medical charts of patients with critical problems and conditions.

The value of such reviews is twofold.

First, they afford professional input in the case of difficult medical situations. Second, they also provide a forum within which to monitor the quality of care delivered by staff physicians, ensuring an assessment of the quality of their work.

COMMUNICATION BETWEEN PHYSICIAN, PATIENT, AND TREATMENT TEAM

A high percentage of claims against hospitals is caused by communication breakdowns between patients on one hand and hospital employees and staff doctors on the other.

A frequent cause of patient dissatisfaction is a lack of availability of medical information.

Thus, where possible, patients should not be restricted in their access to such data. In fact, many hospitals now have someone on staff whose job is to be the patient's advocate and specifically address such communication issues. This has been found to be very effective from a risk management standpoint.

INCIDENT REPORTING

Specific forms that are to be completed when an incident takes place.

Their purpose is twofold: to create a file in the event that a claim is later made against the hospital, and to provide data for developing information that will be helpful in identifying and highlighting potential problem areas.

Unfortunately, hospital personnel are often reluctant to fill out such forms -especially for incidents involving no injuries - given both the time involved as well as their aversion to admit that a problem arose, particularly if they perceive possible negative ramifications for themselves.

CONT’D

Given these factors, hospital personnel should be encouraged to submit incident reports when possible.

In addition to recording incidents, hospitals should also have an organized means of reviewing those reports, such as a risk management information system that can track and discern important trends.

CLAIMS HANDLING

Claims and litigation management is a broad area of concern.

Risk managers should personally investigate and be involved in settling all important claims against the hospital

Written documentation of essential evidence as well as systems for maintaining physical evidence (such as defective equipment) will also assist hospitals in the event that claims are made against them.

Communication between all those involved with the claim and the risk manager also assures that the best possible disposition results.

INDEPENDENT RISK MANAGEMENT EVALUATIONS

Independent evaluations of a hospital's risk management program and physical plant -by those not connected with the institution itself – often provide insight into the following.

• Unrecognized exposures• Measures for controlling/eliminating exposures not previously considered• Support for a risk manager's loss control recommendations and initiatives that may require additional backing from an unbiased, objective source

CONTROL OF DRUGS

In recent years, narcotics and other drugs have become an increasingly frequent source of liability claims against hospitals. Specifically, the two areas in which controls are necessary involve storage/dispensation of medication and screening/monitoring of employees and staff physicians for drug use.

PREMISES SAFETY

Premises hazards produce a high frequency of liability claims against hospitals. Specifically, patient slips and falls are the single most common type of hospital liability claim. Written policies and procedures need to be developed and implemented regarding the use of bed and handrails. Patients should be instructed in using nurse call buttons, and these devices should be located both in patient rooms and bathrooms. Hallways, another common location for falls, also may require firmly secured handrails. Shower facilities should contain non-skid mats or strips. Finally, handgrips need to be installed near toilets, sinks, and bathtubs.

BIOMEDICAL EQUIPMENT

Biomedical equipment is yet another frequent source of claims against hospitals.

Within this area, the suggested guidelines serve as a general guide.

• Access to scan rooms should be restricted.• Written procedures for operators should be developed and enforced.• Training and competency of technicians should be continuously monitored.• Regular maintenance schedules should be established for equipment.• Hold harmless agreements should be obtained from outside service firms and manufacturers who provide such services on a contract basis.

Summary

Controlling a hospital's professional liability exposures is a difficult task. However, the foregoing points indicate the broad fronts on which professional liability loss prevention efforts should be directed.

Chubb. Insured. Thank you

Questions, Queries, Comments……..