The Anatomy of a Claim

The Anatomy of a Claim

A Risk Resource

Seminar

Presented by

Course 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.

ProAssurance Group

Risk Resource Regional Office 2600 Professionals Drive

Post Office Box 150 Okemos, Michigan

48805–0150 800.292.1036

Hayes V. Whiteside, MD

Chief Medical Officer Senior Vice President, Risk Resource

[email protected] 800.282.6242, ext. 2670

www.ProAssurance.com

ProAssurance Indemnity is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians. ProAssurance Indemnity designates this educational activity for a maximum of 2.0 AMA PRA Category 1 Credit(s)TM. Physicians should only claim credit commensurate with the extent of their participation in the activity.

Presenter

Mark J. Hakim, MA, MBA, is a Risk Resource Director for ProAssurance. He obtained a master’s degree in exercise physiology from Michigan State University and his MBA from University of Detroit Mercy. He has an extensive background in exercise physiology and cardiology and has managed occupational and employee health programs. Phone: 800.282.1036, ext. 6225 e-mail: [email protected] DISCLAIMER: Information in this presentation is neither an official statement of position, nor should it be considered as professional legal advice to individuals or organizations.

Disclosure Information

ProAssurance is committed to providing Continuing Medical Education (CME) activities that are fair, balanced, and free of bias. In order to assure appropriate content, we require that those who participate in developing and presenting our CME activities provide us with information about their relationships with commercial interests. Any reported relationships with commercial interests are resolved before planners, presenters or others in a position to influence the content of educational activities are allowed to become involved. If there is a conflict of interest that cannot be resolved, that individual will not play a role in our CME activities. The relevant relationships reported for this 2016 seminar are: ProAssurance Course Planners and Faculty The following have no relationships with commercial interests to disclose:

Brandy A. Boone, JD Lizabeth F. Brott, JD Kathi Burton, MS, FASHRM Mallory Earley, JD Karen B. Everitt, BSN, JD Mark J. Hakim, MA, MBA Aaron Hamming, JD Laurette Salzman, MBA, CPHRM Stephen Shows, JD Jeremy Wale, JD

CME Committee The following have no relationships with commercial interests to disclose:

Ross Berkeley, MD John Hinton, MD Atindra Chatterji, MD Greg Jackson, MD Paul de Saint Victor, MD April Rubin, MD Joe Demeter, MD Ayaz Samadani, MD Steven Driggers, MD Hayes Whiteside, MD Juan Gutierrez, MD Michael Zaragoza, MD

1

PIAA Closed Claims

Comparative: A

comprehensive analysis of

medical professional

liability data reported to

the PIAA Data Sharing

Project. 2015 Edition.

Average

Indemnity

by Specialty

(2004-2015)

Percent of Physician’s Sued

0% 20% 40% 60% 80% 100%

Ob/Gyn & Women's Health

Surgery

Orthopedics

Radiology

Anesthesiology

IM/FM

Oncology

85%

83%

79%

72%

58%

46%

34%

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=6. December 9, 2015. Accessed April 15, 2016.

2

Nature of the Lawsuit0% 5% 10% 15% 20% 25% 30% 35%

Failure to diagnose

Patient suffered an abnormal injury

Failure to treat

Poor documentation of Pt instruction & education

Errors in medication administration

Failure to follow safety procedures

Improperly obtaining/lack of informed consent

31%

31%

12%

4%

4%

3%

3%




The “Experience” of Being Sued

0% 10% 20% 30% 40%

Not as bad as I thought it would be

Neutral

Unpleasant and irritating, but I've had

other equally unpleasant experiences

Upsetting, but I was able to function

Very bad; disruptive and humilating

Horrible; one of the worst experiences

of my life

1%

1%

8%

33%

20%

37%

2%

2%

14%

36%

20%

26%

Men

Women




3

The Anatomy of a Claim

• Injury/reporting a claim

• Pleadings

– Negligence & standard of care

• Jurisdiction & venue

• Discovery

• Motions

• Trial

• Appeal

Reporting Requirement

• If any insured receives an assertion of

liability, the insured shall immediately (1)

report the professional incident that is the

subject of the assertion of liability and (2)

forward to us a copy of any written assertion

of liability, including any demand, notice,

summons or other process received by the

insured or any representative of the insured.

4

Assertion of liability

• Assertion of liability means an oral or written

demand or notice from a patient or a patient’s

representative claiming that an insured is

liable for a professional incident or requesting

a patient’s medical or dental records.

Professional Incident

Professional incident means:

A. a single act or omission, or a series of related

acts or omissions during a continuing course of

professional services, arising out of the

rendering of, or failure to render, professional

services to any one person by an insured or any

person for whose acts or omissions an insured is

legally responsible, which results or is likely to

result, in a claim for damages; or

5


Professional incident means:

B. a single act or omission or a series of related acts or omissions by an insured professional during the performance of peer review services which results, or is likely to result, in a claim for damages.

For purposes of this definition, treatment of mother and fetus (or fetuses) from conception to postpartum care constitutes a single professional incident.


In no event shall separate, discrete events or injuries that occur during a single medical or dental procedure or continuing course of related treatments constitute more than one professional incident. In all cases involving a series of related acts or omissions during a continuing course of professional services, the professional incident shall be deemed to have occurred at the time of the earliest act or omission comprising that professional incident, even if it began before the retroactive date.

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Professional Services

Professional services means the provision of

medical or dental services to a patient of an

insured including treatment, making diagnoses

and rendering opinions or advice, in accordance

with any and all required licenses for the

provision of such services.

When to Report a Claim:

Contact us when:

• Receive legal papers naming you as defendant or potential defendant

• Demand for compensation

• Verbal or written threat of legal action

• Notice of state investigation, deposition request, peer review investigation;

• Contacted by attorney– Pt care/treatment provided

– Request for medical record

7

Case Study

• 71 YOM (6’ 3”, 245 lbs.) incisional hernia

repair with component separation

– GS #1 assisted by partner

– Open procedure; blood loss – 75 ml

• Uncomplicated post-surgical clinical course

– Discharged home two days later

– Jackson-Pratt drain in place

– Follow up in 1 week

• Returned to hospital 3 days later – nausea,

vomiting, & abdominal distention

• GS #1 assumed care of patient

– Last BM 2 days prior

– Soft & distended abdomen

– Admitted & NPO

– CBC, Chem profile, abdominal films, & IV

Case Study (cont’d)

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• WBC - 18.6 (4-10.8)

• Creatinine - 1.4 (.7-1.2)

• GFR - 51 (>90)

• Potassium - 3.1 (3.0-5.2)

• Radiologist• "ileus versus small bowel obstruction."


• Plan - observe, fluids, let clinical picture develop

– Ileus or small bowel obstruction

– BM that evening

• Passing gas, no nausea or vomiting, BM, initial ↓

abdominal distention

– Appeared to have ileus & improving

• GS #1 turned care over to GS #2

– Discussed possible ileus; indications for surgery

– GS #1 - no further Pt involvement

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• Abdomen "moderately" distended

• NPO; not passing gas, no BM or emesis

• Abdominal films ordered & compared • “multiple air fluid levels consistent with

high-grade small bowel obstruction. No

improvement since previous images.”


• GS #2 reviewed report; saw Pt in afternoon

– 2 family members present

• Noted area of distention – seroma suspected

– Clogged drain with fluid collected in stomach

• Decision to open & drain seroma at bedside

– Small incision to open suture

– Punctured bowel wall

– Liquid stool poured out

• STAT to OR

10


• Anesthetized via rapid sequence induction– Vomited; possible aspiration

• NG tube - approx 3,000 cc of gastric contents

• Enterotomy repaired & hernia defect closed

• Remained on ventilator secondary to aspiration

• Initially did well in ICU– Hypotension; ↓ urine output

– Anuric; labile BPs

– DNR & expired

• COD - cardiopulmonary arrest secondary to massive hypotension & post-op organ failure

The Complaint

• Negligently cared for, treated the patient;

• Failure to diagnose & treat small bowel

obstruction;

• Failure to interpret x-rays accurately or order

CT of abdomen;

• Failure to order/perform insertion of NG tube;

• Negligently opened patient’s incision at

bedside & “stabbed” the bowel

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The Answer

For each allegation Defendant can:

• Admit;

• Deny; or

• Insufficient facts to admit or deny

Defense then asserts Affirmative Defenses

What is Negligence?

DUTY (did a Dr. – patient relationship exist?)

+

BREACH OF DUTY (did the Dr. fail to meet the SOC?)

+

CAUSATION (did breach cause the pt’s injury?)

+

DAMAGES (did pt incur expenses, pain, suffering, lost

wages as a result of breach?)

= NEGLIGENCE

12

Standard of Care

• Legal term

• Specific definition varies by state

– What a reasonable physician would do under

same or similar circumstances

Jurisdiction & Venue

• State specific

– Case filed by plaintiff’s attorney

• Jurisdiction = authority of court to hear a case

– State court vs. federal court

• Venue = location where a case is heard

– Defense vs plaintiff friendly venues

13

Discovery

• Records/documents

• Witnesses – Mostly through depositions

• Facts

– Interrogatories

– Affidavits

Records/Documents

• Request for production of documents (parties, non-parties)– Medical records

– Policies & procedures

– Credentialing files

– Metadata

– Scheduling & phone logs

• Subpoenas– HIPAA requires more

• Request for inspection

14

Witnesses

• Fact witnesses

– Patient, family, nurses, physicians, etc.

• Expert witnesses

– Help define SOC, causation, & damages

– Depositions, trial testimony, or both

– Used by both sides - expensive

– Qualified? Credible?

Plaintiff Expert

• GS #1 discharged Pt too early

• GS #2 did not properly resuscitate Pt

• Pt’s re-hydration not adequate/aggressive enough to produce urine output

• Pt hydrated with wrong fluids (should have been normal saline w/ KCl added, not ½ normal saline)

• Should have placed NG tube upon readmission

• Should have ordered gastrografin study or CT of abdomen/pelvis

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Defense Expert

• NG tube placement is judgment call small-

bowel obstruction vs ileus

• CT or small-bowel follow-through also

judgment call

• BUN, creatinine, & WBC counts creeping up

likely due to dehydration

• Draining suspected seroma at bedside

appropriate

Dispositive Motions

• Narrative summary of undisputed material facts

– Supported by specific reference to pleadings,

portions of discovery materials, & affidavits

– No genuine issue as to any material facts

• Moving party entitled to a judgment as a matter

of law

• May be rendered on liability alone, leaving

damages in dispute

16

Alternative Dispute Resolution

• Varies by state

• Can include:

– Case evaluation

– Mediation

Order of Trial

• Jury selection

• Opening statements

• Plaintiff’s case-in-chief

– Witnesses (direct, cross), exhibits

• Defendant’s case-in-chief

– Witnesses (direct, cross), exhibits

• Closing arguments

• Deliberations/Verdict

17

Jury Selection

• Number of potential jurors varies by state

• Voir dire process

– Potential jurors may fill out questionnaire

– Judge/attorneys may ask questions

– Strikes

– “For cause”

CASE-IN-CHIEF PRESENTATIONSFOR PLAINTIFF & DEFENSE

18

Appeals

• Not every verdict gets appealed

• Legal issues, not clinical

• Only considers information from legal record

• No witnesses, only briefs & attorney arguments

Case Study 2

• 35 YOF (5'11", 152 lbs.) seen by PCP

– 10 Year Hx of depression

– Treated by PCP for insomnia & depression

– ↑↑↑↑ Symptoms – referred to psychologist

19

Case Study 2 (cont’d)

• Seen by psychologist; accompanied by husband

– “Pleasant, well dressed, denied suicidal ideation,

just feeling very depressed without an easily

named reason.”

– Previous suicide attempt in the 90’s

– Dx - major depressive disorder, recurrent - severe with psychotic features

– GAF score - 60 (moderate)

– Scheduled physical exam & referred to psychiatrist


One Week Later – Returned to PCP (with husband)

• Symptoms worsened - ↑sadness; slower speech &

movement; anxious; mind racing; can’t make decisions

– “Pt denies SI but states "I just want this feeling to end."

– “Has no plan for suicide”

– “Blunted, finding it difficult to answer questions and often

does not finish sentences.”

• Depression described as severe - meds adjusted

• Suicide precautions discussed

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4 Days Later

• Evaluated by Psychiatrist; husband present &

assisted with interview

– 3 Children & been together since age 15

– Documented family Hx of behavioral health issues

• Medications adjusted

– Advised husband to monitor cognitive abilities

– Sent home with follow-up appointment in 1 week


4 Days Later – call from Husband

• Pt doing better – ↑↑↑↑ eating & ↓↓↓↓ rocking

• Still anxious with change in medications

• Husband instructed to adjust medications

21


2 Days later - Husband called & left message

• Psychiatrist returned call later that afternoon

– Husband saw improvement day before but found

her late that night & brought her back to bed

– Described her as “very stone-faced, very frozen”

and “that was as bad as it’s ever been”

– Medications increased


Next day

• Notified by Police - suicide

22


• Lawsuit filed against psychiatrist for medical negligence & wrongful death

• Allegations included:

– Failure to timely & accurately assess patient’s condition;

– Failure to use reasonable skill, care, & diligence to treat patient’s psychological condition;

– Failure to arrange for hospitalization;

– Failure to appreciate the severity of psychiatric illness;

– Failure to provide an improved medication regimen; and

– Failure to arrange a more timely follow up

Plaintiff’s Theories

• Minimal criticisms about medication

• Too much reliance on husband

– Not enough evaluation - eyes on Pt

• Should have been hospitalized

23

Outcome

• Outcome: ____________

24

Take Home Points

• Avoid the “He said - She said”

– Document, document, document

• Document phone calls

• Too much reliance on family

• Eyes on the patient

– Becoming more challenging with technology

Case Study 3

• 52 YOM (6’, 258 lbs.) with eye irritation & light

sensitivity for several days

• History

– Diabetes

– HTN

– Hyperlipidemia

– Herpetic eye infection 12 yrs prior

• Uncertain if disclosed to physician at presentation

25


• Dx - acute allergic conjunctivitis

– Tobradex® eye drops (steroid + AB)

– Return if no improvement in 72 hrs

– Prescription filled next day

• 3 Days later - Internist left practice

• 20 Days later - Pt requested refill

– Spoke w/ receptionist

– Refill authorized by Internist #2


• 11 Days later – returned w/ blurry vision

• Referred to ophthalmologist

– Suspected herpetic infection

– Referral to corneal specialist

• Dx - geographic & dendritic corneal epithelial

lesions - characteristic of HSV

• Cornea transplant after yr of conservative Tx

26


• Lawsuit filed against IM physicians & practice

• Allegations against Internist #1 included:

– Failure to take adequate H&P

– Failure to create adequate documentation

– Tobradex® not appropriate for allergic

conjunctivitis

– Failure to diagnose herpetic infection

– Failure to refer to ophthalmologist


• Allegations against Internist #2 included:

– Improper prescription refill w/out exam

– Reliance on incomplete chart breached SOC

27

Discovery

• Documentation

– Alleged fabricated chart note

• Metadata investigation

– Incomplete charting

• Deposition preparation

Metadata

• Big brother is watching

– Every keystroke has the potential to be recovered

• Best friend or worst enemy

28

The Reptile Technique

• Effective technique used by plaintiff attorneys

• Establish “Safety Rules” in deposition

– “needlessly endanger …”

• Reptile formula

– Safety Rule + Danger = $$$

– Intimidate & bully physician

Outcome

• Internist #1 & practice - ____________

• Internist #2 – _____________

29

Take Home Points

• Documentation – accuracy & thoroughness

• Lawsuits don’t happen overnight

– Is there enough documentation to assist yrs later?

• Metadata

• Deposition preparation

– Be engaged in your own defense

– Beware the “Reptile”

Case Study 4

• CAD

• A-fib with pacemaker & ICD

• CHF

• HTN

• Hypercholesterolemia

• Mild COPD

• Intermittent vertigo

• Colon polyps

• Kidney stones

• Anxiety/depression

• Mild renal insufficiency

• 60-YOM (5’8”, 227 lbs.) new Pt for Internist

• Med Hx:

• Surgical Hx - PTCA x 2, CABG, lap band, lithotripsy,

& tummy tuck

30

Medications

• Lasix

• Coumadin

• Potassium

• Prevacid

• Wellbutrin

• Accupril

• Aspirin

• Coreg

• Amiodarone

• Vytorin

• Ambien

• Provigil

• Diflucan

Tx Plan – Internist to manage general medicine issues &

Cardiologist to manage cardiac issues including Amiodarone


• 3/23 Lab work:

– AST 42 (<40), ALT 60 (<55)

– Results faxed to cardiologist

• 6/08 – Cardiologist ↓ Amiodarone to 300 mg/day

– No mention of liver enzyme testing

• 9/20 – Annual physical – no complaints

– AST 100 (<40), ALT 125 (<55)

– Follow up letter sent to Pt incorrectly reported LFT normal

• 12/09 – NP ↓ Amiodarone to 200 mg/day per Pt request

– Summary letter to Internist sent to wrong address

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Date Symptoms / Complaint Labs

2/7 Nausea, vertigo, fatigue, lightheadednessBP – 74/44

AST – 238 ALT – 206

BP Meds adjusted; Prevacid added

2/13Feeling 40 – 50% better—Nausea improved, no

dizziness

BP – 108/70

AST – 221 ALT – 151

2/20 Blood workAST – 221 ALT – 141

Hep profile – negative

2/22Feeling worse - dizziness, lightheadedness,

ataxia, nausea, lethargic, dry hacking cough

BP – 112/72

Levaquin for URI

2/24 Called - feeling better

3/4Symptoms worse – dizzy, weak, off balance,

fatigue, dry hacky cough

BP 82/60

AST – 247 ALT – 168 ALK PHOS – 336

3/8Feeling worse – instructed to go to ED –

unsteady, confused, ataxic

BP – 70/30

Taken off BP meds

3/13 “Slowly better” but still weak, dizzy & confusedBP – 74/46

AST – 197 ALT – 129

3/15 Cardiologist discontinues Amiodarone

3/26Abd distension, poor appetite, dry hacky cough

Dx – Ascites, CHF & HTN

BP improved; back on Lasix

CXR – L lower lobe pneumonia

AST – 208 ALT – 112 ALK PHOS – 369


• 3/30 ED – weakness, confusion, ↑ascites &

lethargy

– Liver enzymes mildly elevated, ammonia level 120

– Dx - liver failure, hypokalemia, chronic renal

insufficiency, CAD, A-fib, HTN, ↑ cholesterol,

L lower lung nodule, & poor nutrition

• Transferred for possible transplant

– 4 days later - Pt expired

32


• Autopsy

– COD - “drug-induced liver cirrhosis secondary to

Amiodarone therapy for atherosclerotic coronary

artery disease with remote myocardial infarction;

THERAPUTIC COMPLICATION.”

– Pathologist noted condition classic for acute

hepatitis from Amiodarone, compounded by

chronic cirrhosis


• Lawsuit filed against internist & cardiologist

• Allegation

– Failure to diagnose & treat cause of elevated liver

enzymes leading to Amiodarone-induced

hepatitis, cirrhosis & death

33

Discovery

• Team approach to Pt care

• Communication

– Between physicians

– With Pt

• Documentation

Outcome

• Outcome: __________

– Apportioned:

• ______ to Internist

• ______ to Cardiologist

34

Take Home Points

• Clear plan of care

• Document communication

– Between clinicians

– With patient

• Dangers of templates; cut & paste

Class Actions

• Lawsuit filed or defended by an individual or small group acting on behalf of a large group

• Why?

– Efficient & economical

– Avoid confusion of too many parties in court

– Prevent inconsistent judgments

• 1960’s – increased substantive law on civil rights, consumer protection, environmental protection, worker safety, etc.

35

Class Actions (cont’d)

• Governed by Fed. Rules of Civil Procedure

(most states have similar state rules)

• Must have a class certified by court

– Certification is often a battle

– If certified, Plaintiff(s) odds of success increase

– If not, then actions must be pursued individually

Class Actions (cont’d)

• Class certification requirements

– Plaintiff must be member of & represent class

– Reasonable # of members, usually >40-50

– Common question of fact or law

– Representative’s claim must be typical of all claims

– Adequate representation

– Falls within category recognized as legit class

action

36

Examples of Class Action Suits

• Breast implants

• Stents

• Prosthetics

• Medications

– Phen phen

– Celebrex

– Pain pill mill

Take Home Points

• Transparency with Pts

• Timely response is critical

• Chain of custody – secure possible evidence

• Contact Claims / Risk Resource

37

Closing Comments

• Let us help

• Be engaged

• Trust defense counsel – they are experts