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The Anatomy
of a Claim
2016 Loss Prevention
Seminar for Physicians
Mallory Earley
Risk Resource Advisor
ProAssurance
Toll Free: 1-844-223-9648
Direct: 205-802-4789
PRESENTER
Disclosure
ProAssurance is committed to providing CME
activities that are fair, balanced and free of bias.
The planners and presenter(s)/authors(s) of this
CME activity have disclosed no conflict of
interest relative to this educational activity.
Disclaimer
Information in this presentation is neither an
official statement of position nor should it be
considered professional legal advice to
individuals or organizations.
Learning Objectives
Participation in this seminar will better enable participants to:
• Understand the litigation process for allegations of
medical malpractice by examining closed claims;
• Recognize how expert witnesses are used for and against
physicians and their effect on defense strategies; and
• Identify how effective communication and
documentation reduce healthcare liability claims.
INTRODUCTION
Medscape Malpractice Report 2015
• Medscape surveyed nearly 4000 physicians
Results:
– If/why they were sued
– How the lawsuit affected their career
– How to reduce the number of lawsuits
– Long term effects both emotional and financial
Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=1 December 9, 2015. Accessed February 26, 2016.
Have You Ever Been Named in a
Malpractice Suit?
0%
10%
20%
30%
40%
50%
Yes; one of many partiesnamed Yes; only person named
47%
12%
Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=2 December 9, 2015. Accessed February 26, 2016.
0%
20%
40%
60%
80%
Yes, I wassurprised No, I suspected
that there mightbe a lawsuit
No, I wasabsolutely
expecting it
70%
27%
3%
Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=15 December 9, 2015. Accessed February 26, 2016.
Were You Surprised to be Sued?
How Often Does Malpractice Threat
Influence Thinking or Action?
0% 20% 40%
Always, with every patient
Almost all the time
Occasionally -- mostly if I'm unsure of mydiagnosis, or I have a combative patient
Rarely; not unless something goes wrongwith a patient or there is a "trigger event"
Never
18%
36%
26%
19%
1%
14%
26%
34%
24%
2% Never namedin lawsuit
Named inlawsuit
Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=7 December 9, 2015. Accessed February 26, 2016.
ELEMENTS &
STANDARD OF CARE
Elements of Malpractice
1. Duty • Prove physician patient relationship
2. Breach of duty • Standard of Care is how you determine this/injury
3. Proximate cause • Breach has to be related to/cause of injury, and
4. Damages • Good outcome – no damages - no claim
Alabama Standard of Care
In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.
Ala. Code 6-5-548(a)
THE ANATOMY OF A CLAIM
The Anatomy of a Claim
• Injury/reporting
• Venue
• Pleadings
• Discovery
• Motions
• Trial
• Appeal
INJURY/REPORTING
Reporting
• When to report
– When policy requires
– Unexpected outcomes
– Deposition request or medical record request in a
professional liability case
– “You hurt me, give me money”
CASE STUDY
Case Study: Facts
• 71-YOM presented to Dr. General Surgeon on referral
from PCP – hernia in old robotic prostatectomy incision
• March 4: Dr. General Surgeon performed hernia repair,
Dr. Partner assisted; discharged March 6 w/ JP drain
• March 9: readmitted to hospital with nausea, vomiting,
and distended abdomen
• Dr. General Surgeon noted patient last reported bowel
movement on March 7
• Films are ordered; IV ½ normal saline at 125 cc/hr; CBC;
chem profile
Results & Impression
• WBC: 18.6 (4-10.8) • Creatinine 1.4 (.7-1.2) • Glomerular filtration estimate 51
(>90) • Potassium 3.1 (3.0-5.2)
Case Study: Facts
• Plan: watch patient, give fluids, let clinical
picture develop to determine if ileus or small
bowel obstruction.
• Pt had a bowel movement that evening.
• March 10: Pt still nauseated; Zofran 4 mg IV
prn
• March 11: nausea, vomiting improved, no
Zofran
Case Study: Facts
• March 11: Dr. General Surgeon developed
kidney stones
• March 12: Dr. Partner performed exam, noted
abdomen “moderately” distended, Pt eating ice
chips, no bowel movement, flatus, or emesis
• March 12: Ordered films; different radiologist
read
Results
Dr. Partner Reads Films am on 3/13
Case Study: Facts
• March 13: Dr. Partner saw Pt next afternoon
• Spot of distention confined to area of prior
hernia incision (new finding)
• Soft, squishy, thought to be seroma; assumed
JP drain clogged
• Attempted to open seroma at bedside
• Liquid stool poured out
• Pt’s family still in room
Case Study: Facts
• March 13: Emergency surgery
• Anesthesia score rated a 3E
• Just before anesthesia, Pt vomited and there was
“questionable aspiration”
• NG tube placed, approx. 3,000 cc gastric
contents returned
• Recurrent hernia repaired; small hole in small
bowel repaired
• Taken to recovery in stable condition on
ventilator due to aspiration
Case Study: Facts
• Blood pressure and urine output decreased
• Creatinine 3.4 (.7-1.2)
• Glomerular filtration estimate 19 (>90)
• Started drips, but became anuric w/ severely
labile blood pressures
• DNR - died March 14
WHAT HAPPENS NOW?
Why are we talking about this?
VENUE
Venue
• Type of court
– State vs. Federal
– Professional Liability – mostly like in state court
• Judge
• Jury pool
PLEADINGS
Complaint
• Allegations of violation of standard of care
• May involve multiple claims against multiple
defendants, and may have specific claims per
defendant
• Must be filed within applicable statute of
limitations
• Allegations use legal, rather than clinical terms
Case Study: Complaint
• Negligently cared for, treated the patient;
• Failed to diagnose and treat small bowel obstruction;
• Failed to interpret x-rays accurately or order CT of abdomen;
• Failed to order/perform insertion of an NG tube;
• Negligently opened the patient’s incision at bedside and “stabbed” the bowel
Case Study: Complaint
Answer
• Response to complaint allegations
• Each defendant must respond
• General denial vs. specific denial
• Affirmative defenses – Statute of Limitations
Case Study: Answer
Specific Denial
General Denial
Case Study: Affirmative Defense
DISCOVERY
Discovery
• Discovery Requests
– Requests for Production for Parties
– Subpoenas for Non-parties
– Requests for Admission
– Interrogatories
– Depositions
• Parties and non-parties
• Fact witnesses and expert witnesses
Requests for Production
• Limited time to respond
• Production of chart
• Requests may include inspection of devices
• Only apply to parties
Case Study: Request for Production
Subpoenas
• Apply to Non-Parties
• Requests for documents
• Regulated by HIPAA
Medical Record & Documentation
Documentation Issues in Case Study
– Documentation by Exception
– Order of events
– Location of Record Entries
– Late Entry
Case Study: Documentation Issues
• Video: Allison Adams 3 - documentation by
exception
Documentation By Exception
Case Study: Documentation
3/13 Pt with stool coming from wound
incision opened at bedside and
Bowel has herniated under incision
Needs exploration / closure - discussed with family and
patient
Case Study: Documentation Issues
• Video: Allison Adams 4 - order of events
Order of Events
Case Study: Documentation Issues
• Video Allison Adams – 5 Ins and Outs
Location of Record Entries
Case Study: Documentation
Case Study: Documentation Issues
• Video: Allison Adams 6 - late entry
Late Entry
Interrogatories
• Limited time to respond
• Written questions for parties
• Wide range of questions
• Attorney may offer objections
• Answers may be used to “impeach” testimony
Case Study: Interrogatories
Request for Admissions
• Limited time to respond
• Parties required to admit or deny the truth of
statements
• Anything not answered is deemed admitted
after time limitations expire
Case Study: Request for Admissions
Depositions
• Recorded sworn testimony prior to trial
• Witnesses may provide deposition testimony
or trial testimony or both
• Witnesses include the following:
– Parties
– Fact witnesses
– Expert witnesses
Party as a Witness
• Plaintiff and defendant will usually testify in
deposition and trial
• Any inconsistencies in depo vs. trial testimony
affect credibility
Case Study: Defendant’s Deposition
• Video: Allison Adams 7 – defendants depo
Plaintiff Attorney Cross Examination
Reptile Theory
Reptilian: primitive and survival instincts
Reptile Theory
• A process that takes place throughout litigation
• Seen most in deposition, voir dire, and opening statements
• Shifts focus from injury of Plaintiff to general public
• Scares the primitive part of juror’s brains and utilizes their fears especially regarding safety
• Gut reaction: leads to tendency to give damages based on violation of broader perception of safety
Reptile Theory
• Shifts perspective from injured Pt to defendant’s conduct
• Move jurors into “survival mode”
• Safety rule + Danger = $$$
• Safety rule must: – Protect people in a wide number of situations
– Must be in clear English
– Say what the person must do
– Easy to follow
– To not agree would be careless or stupid
Reptile Theory
• Safety rule example:
– “Safety is always a top priority, right?”
– “Any level of danger is never appropriate,
correct?”
– “Reducing risk is always a top priority, wouldn’t
you agree?”
– “Wouldn’t it have been safer if “X” had
happened?”
Defendant’s Deposition
Patient Partner
Patient
How to Combat Reptile Theory?
• Dispel the physiological basis for effectiveness
• Suggesting threat and not real danger cannot
awaken reptilian response in juror
• No longer fight or flight – process information
• Prepare and defend against these allegations
especially in deposition
Fact Witnesses
• Fact witnesses
– Patient
– Family members/care givers
– Other treating clinicians
• Subsequent treating physicians
• Nurses, AHPs, medical assistants
Case Study: Fact Witness Example
Partner
Niece’s deposition
Case Study: Fact Witness Example
Patient
Partner
her
Niece’s deposition
Niece’s deposition
Case Study: Fact Witness
• Allison Adams 8 – Clean up full
Focus Group’s Reaction
• Video of focus group: 9 – Clean up captioned
Wife’s deposition
Expert Witnesses
• Connection to standard of care
• Qualifications
• May have deposition and trial involvement
• Both sides use experts
• Expensive
• Importance of credibility
Case Study: Plaintiff’s Expert Depo
• Video of Plaintiff’s expert depo – 12 - Roberts
residency
Case Study: Plaintiff Expert
• Dr. General Surgeon discharged Pt too early
• Dr. General Surgeon did not properly resuscitate the patient
• Pt’s re-hydration was not adequate or aggressive enough to produce urine output
• Pt was hydrated with wrong fluids (should have been normal saline w/ K-Cl added, not ½ normal saline)
• Should have placed an NG tube upon readmission
• Should have ordered gastrografin study or CT of abdomen/pelvis
Case Study: Defense Expert
• Decision to place NG tube is a judgment call when finding of small-bowel obstruction versus ileus
• Decision to order CT or small-bowel follow-through also a judgment call
• Pt’s BUN, creatinine, and WBC counts creeping up were likely due to dehydration
• Draining suspected seroma at bedside appropriate
MOTIONS
Summary Judgment
• Narrative summary of undisputed material facts
• Supported by specific reference to pleadings, portions of discovery materials, and affidavits.
• No genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
• May be rendered on liability alone, leaving damages
TRIAL
Trial
• Jury selection
• Opening statements
• Plaintiff’s case
• Defendant’s case
• Closing arguments
• Deliberations/Verdict
Jury Selection
• Number of potential jurors varies
• Voir dire process
– Potential jurors may fill out questionnaire
– Attorneys may ask questions
– Strikes
– “For cause”
Opening Statements
• Preview of allegations/defenses
• Plaintiff goes first
– Burden of proof
• Defendant goes second
• Plaintiff may have option for second opening
Presentation of
Plaintiff’s/Defendant’s Case
Witness testimony
– Direct Examination
– Cross Examination
Presentation of
Plaintiff’s/Defendant’s Case
Exhibits
– Must be admitted
– May require foundation testimony
Case Study: Use of Exhibits
• Video: Allison Adams 16 – discredit animation
showing animation
Plaintiff’s Exhibit
Closing Arguments
• Summary of case
• May refer to admitted evidence
• Plaintiff goes first, and may have opportunity
after defendant’s argument
Jury Deliberation
• Jury Charge
• No time limits
• May ask questions of judge
• Deliberations are secret, but jurors may agree
to interviews after rendering verdict
Case Study: Verdict
• Video: Allison Adams 19 – verdict
Focus Group’s Reaction to Verdict
• Video: Focus group – 20 – FG Verdict
captioned 2
APPEALS
Appeals
• Not every verdict gets appealed
• Basis for appeal is legal, not clinical
• Appellate courts only consider information
from the trial court record
• No witnesses, just written briefs and attorney
arguments
Final Thoughts
• Video: Allison Adams 21 – being nice helps
Thank you for attending this
program.
Please complete your program
evaluation.