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Medical Malpractice Risk Management. R. Monty Cary PA-C, M.Ed., DFAAPA Senior Partner Cary Associates, LLC. Disclaimer. Not intended as legal advice The cases are real Best learning is by example No pharmaceutical support. Failure to Diagnose. Referral. Examination. - PowerPoint PPT Presentation
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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.
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