Medical Malpractice

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Medical Malpractice

• Namitha Govinda, MD
• Resident conference
• May 9, 2006

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Outline

• Definitions
• Crisis Map
• Background
• International scene
• Increasing malpractice premiums
• Case study
• No fault compensation
• Relation between negligence outcome
• Crew Resource Management
• Avoiding law suits
• Conclusions

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Definitions of common terms

• Collateral-source benefits
• Amount that a plaintiff recovers from sources
  other than the defendant
• Economic damages
• Funds to compensate a plaintiff for the monetary
  costs of an injury
• Joint several liability
• Liability in which each liable party is
  responsible for the entire obligation.
• Malpractice
• Failure of one rendering professional services
  to exercise that degree of skill learning
  commonly applied under all circumstances in the
  community by the average prudent reputable member
  of the profession with result of injury, loss or
  damage to the recipient of those services or
  those entitled to depend upon them

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Definitions (contd)

• Negligence
• A violation of duty to meet an acceptable
  standard of care
• Non economic damages
• Damages payable for non monetary losses.
  Technically includes punitive damages.
• Punitive damages
• Damages awarded in addition to compensatory
  damages to punish a defendant for willful
  wanton conduct
• Statute of limitations
• A statute specifying the period of time after
  the occurrence of an injury during which any suit
  must be filed
• Bryan A. Garner, ed.,
  Blacks Law Dictionary, 6th ed, p. 959

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Background

• 1970s- availability crisis? exit of major insurer
  from market inability to obtain insurance at
  any price? entry of insurance companies owned
  operated by MDs state run joint underwriting
  associations
• 1980s- affordability crisis? insurers wrote
  policies but charged premiums that many could not
  afford? concerns about access to care
• Currently- crisis of availability
  affordability? St. Pauls exited in 2001?
  succeeding 2 yrs exodus of many insurers?
  thousands of MDs scrambling for coverage e.g.. In
  PA remaining insurers refused new business or
  offered only to those w a clean slate

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Background (contd)

• MDs had to turn to joint underwriting
  associations as the insurers of last resort ?
  with prohibitively high rates
• In FL where MDs are not required to carry
  liability insurance, increasing MDs are going
  bare ? asset protection is a major industry

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Is it the cost of malpractice ?
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Is it the cost of malpractice ?
G. F. Anderson et al Health Affairs 2005
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Trends in premiums for Physicians Medical
Malpractice, by type of physician
Congressional Budget Office 2004
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Average Insurance Payment for closed Malpractice
Claims

• (in Thousands of Dollars)

Source Physician Insurers Association of
America Note These averages exclude closed
claims that did not result in payments
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Congressional Budget Office 2004
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Congressional Budget Office 2004
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Options for Malpractice Reform.
Studdert, D. M. et al. N Engl J Med
2004350283-292
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Case Study
Troyen A. Brennan et al Annals of Internal
Medicine 2003

• Ms. T presents w/ 3 d fever, N/V
• T38.3, HR 118 RR 26 BP 112/70 Sats 92 on RA
• Exam Rt. lung base crackles
• Lab CBC w/ leucocytosis w/ left shift
• CXR dense RLL infiltrate
• Pt admitted to medical ward, given IV Levaquin,
  Flagyl O2 pulmonologist consulted by phone
• 5 hrs later pt found dyspneic diaphoretic, sats
  69 on 2L?placed on NRB _at_ 15L? sats now 91
• Dr H paged arrived in minutes

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Case study (contd)

• ABG 7.41/29/63 on NRB
• PCXR worsened R LL infiltrate
• Dr. H diagnoses impending respiratory failure
• Opts to transfer pt to the care of a
  pulmonologist in the ICU for probable intubation
  (20 minutes later)
• In the ICU severe respiratory distress,
  delirious
• HR 145 RR 38 sats 64 on NRB
• Preoxygenated w BVM, given midazolam intubation
  attempted

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Case study (contd)

• V fib cardiac arrest, 02 sats in the 30s
• BVM oxygenation resumed, CPR (including chest
  compressions), epinephrine atropine given,
  defibrillated intubated.
• ABG 7.09/72/39 on 100 Fi02
• Oxygenation improves cardiopulmonary status
  stabilizes but pt left with profound presumably
  irreversible brain damage
• At the time of DC ( to an LTAC) pt did not
  recognize family members or perform any ADL
• After several months, family sought legal counsel
  Dr. H was informed that she was named in a
  malpractice case

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Case study (contd)

• To recover damages, Ms. T must prove
• Relationship between Dr. H her gave rise to a
  duty
• Dr. H was negligent i.e. care fell below the
  standard of a reasonable medical practitioner
• Ms. T suffered an injury
• Caused by Dr. Hs negligence
• The claim was that the Dr. H did not move quickly
  enough to seek critical care attention for Ms. T
  that the delay caused her cardiac arrest
  subsequent brain damage.

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Why sue? Perspective of the Plaintiffs attorney
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Is the lawsuit fair ? Perspective of the Defense
Attorney

• Action plan was within standard of care
• Lawsuit blames individual physician. Multiple
  factors involved nursing monitoring, schedule of
  attending coverage, ER response admission to
  ICU, intubation on the floor
• Plaintiffs attorneys routinely sue many
  individuals including the hospital
• Many jurors equate catastrophic outcomes with
  somebody must have messed up
• Degree of injury is critical to the case

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The case (contd)

• Defendants attorney after a long pretrial period
  of fact finding, expert witness reviews
  depositions finds his clients case strong
• But the horrendous outcome concerns about care
  in the hospital (unrelated to Dr H) lead him to
  recommend that Dr H settle for a small sum of
  money

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The case (contd)

• Factors that Dr Hs attorney considered
• a) How likely is the jury to favor the physician?
• b) If the jury found Dr H guilty, what would Ms
  Ts damages amount to (economic non economic) ?
• c) What is his gut instinct about the cases
  worth?
• d) Subjective factors like composition
  liberality of jurors in a given venue
  sympathetic unsympathetic characteristics of
  the plaintiff, her injury circumstances
• Although the outcome seems unfair, it is
  perfectly in accord with empirical research on
  litigation outcomes attorneys strategies as
  they function in an imperfect tort system

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A new paradigm

• In a no-fault system ?injured pt proves injury
  caused by medical management ? no need to show
  negligence ?more in line with pt safety movement
  ?modern notions of error prevention find little
  value in assessing individual moral blame
• Experience-rating
• Channeling programs- hospitals their medical
  staffs are insured by the same entity? the
  enterprise bears the liability for injury has
  incentives to address error prevention
• No fault system is less costly administratively
• Absence of effective self policing so may not
  promote pt safety
• If a doctor knows that every judgment is not
  going to be subject to the retrospectoscope
  they are likely to practice good medicine

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New Zealands no fault compensation

• In 1974 a government funded system was adopted
  for compensating people with personal injury
  (operated by ACC- Accident Compensation
  Corporation)
• Pts give up the right to sue for damages arising
  out of any personal injury covered by the
  legislation
• All personal injuries suffered while receiving
  treatment from health professionals is covered
  (causal link between treatment injury is still
  required)
• Financed by general taxation employer levy

Marie Bismark et al Health Affairs 2006
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New Zealands no fault system (contd)

• Fixed award schedule means claimants w similar
  disabilities receive similar compensation
  (treatment rehab, loss of earnings, permanent
  disability, support for dependents)
• High affordability (strong social security
  system, compensation is lower more consistent
  than a malpractice equivalent, most entitled pts
  never seek compensation)
• Accountability issues- Health Disability
  Commissioner acts as a gatekeeper to disciplinary
  proceedings in serious cases

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Relation between negligence outcome in
litigation

• Study in NEJM in 1996 reviewed records for 10yrs
  from a representative sample of 31,000 pts from
  2.7 million pts, hospitalized in non federal,
  acute care, non psychiatric hospitals in NY state
  in 1984, 51 claims were identified (at the time
  of the study 46 were closed)
• Panel of nurses/medical record analysts initially
  reviewed records for 1 out of 18 criteria for
  adverse events or negligence, later reviewed by
  MDs
• Adverse event was defined as an injury from
  medical treatment as opposed to disease process
  that prolonged hospitalization or caused
  disability at discharge or both
• Adverse event due to negligence was an injury due
  to medical care that failed to meet standards of
  reasonable medical practitioners

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Disposition of Claims According to the Rating of
the Plaintiff's Injury and Degree of Disability.
Brennan, T. A. et al. N Engl J Med
19963351963-1967
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Logistic-Regression Analysis of Predictors That a
Claim Would Be Settled in Favor of the Plaintiff.
Brennan, T. A. et al. N Engl J Med
19963351963-1967
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Prevention of medical errors

• Report of IOM in published in 2000 estimates
  between 44,000 98,000 hospitalized pts die each
  yr from medical errors another 1 million are
  injured
• Crew resource management (CRM) is a leadership
  strategy originally developed in the 1980s by the
  airline industry to address the cause of human
  errors that underlie 70 to 80 of commercial
  aviation accidents. CRM is so successful in
  reducing the incidence of errors that it is now
  considered industry standard

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CRM (contd)

• While extending such strategies from the cockpit
  into medicine seems a stretch, consider this
• Both pilots MDs are highly trained work in
  complex, technically demanding situations
• Both encounter situations of intense time,
  pressure high stakes
• Both are team leaders who make decisions that
  affect the life of others
• Both rely on team members to implement decisions
• Both are constantly bombarded w more data than
  they can be reasonably expected to absorb
  process
• Both are subject to fatigue stress from long
  hours

Medical Risk Management 2004
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Building a CRM team

• CRM improves pt safety by establishing a
  systematic, structured process in which health
  care is delivered by a team w defined objectives,
  responsibilities expectations of performance
  outcome.
• Open communicative leadership, yet decisive
  able to maintain discipline
• Open culture towards errors pt safety. Errors
  are to be expected, reported discussed in a non
  punitive environment aimed at identifying the
  root causes of such errors learning to avoid
  their repetition
• Team members crosscheck each others work
• Precise written communications
• Spell out medication names, dosage intended use

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CRM uses protocols as pt safety tools

• Use of evidence based protocols, tempered w
  physicians clinical judgment is central to CRM
• Overwhelming evidence shows judicious use of
  clinical guidelines reduces medical errors
  health care costs
• Adherence to guidelines offers some legal
  protection if one is sued
• Failure to adhere to such a guideline can be used
  against one in a malpractice claim
• Main barrier to use of guidelines is lack of
  knowledge about or familiarity w specific
  guidelines

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Protocols (contd)

• Federal governments Agency for Healthcare
  Research Quality maintains a website
  specifically for posting disseminating practice
  guidelines at http//www.guideline.gov/
• Overcoming other barriers to protocol use
  requires teamwork commitment e.g. embedding
  protocols within an EMR such that as an MD enters
  pt data, suggestions for the next step in
  diagnosis or treatment are automatically provided
  in real time

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Avoiding lawsuits

• Records, records, records
• Keep clear, accurate records
• Talk to each other (if you dont talk to a pt,
  hell talk to a lawyer)
• Check lab imaging reports, ensure they are read
  and followed up
• If there is an error dont run hide.
  Communication stops litigation even if there is
  an error. If you communicate, document it
• Never, never, never change a record

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Texas law

• Damage Caps - 250,000 cap on noneconomic damages
  for judgments against physicians and health care
  providers additional 250,000 cap on noneconomic
  damages for judgment against one health care
  institution. A judgment against two or more
  health care institutions shall not exceed
  500,000 with each institution not liable for
  more than 250,000. (2003)
• Legislation was ratified by voters in a ballot
  proposition amending the states constitution in
  2004
• Joint Liability Reform - Yes. Named defendants
  are held responsible only for the portion of
  fault attributable to them
• Collateral Source Reform - No
• Attorney Fees Limited - No
• Periodic Payments Permitted - Yes. Court must
  order payment of periodic damages if the present
  value of damages in case equals or exceeds 100k.

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Rate of rise of malpractice premiums for
Internists (1 mil/3 mil)
Medical Liability Monitor 2001, 2003, 2005 survey
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Conclusion

• Malpractice has 3 social goals to compensate pt
  injured by negligence, deter unsafe medicine
  exact corrective justice
• In reality very few pts are compensated, key
  predictor is degree of disability not
  negligence there are huge administrative costs
• Trial lawyers believe malpractice law makes MDs
  practice safe medicine, but the punitive,
  adversarial approaches dont support this. MDs
  are reluctant about disclosure so there is
  underreporting lack of communication about
  errors

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Conclusion (contd)

• No fault system replaces determination of
  negligence by determination of avoidability
• Theoretically larger pool of injured pts will be
  eligible for compensation, this could be offset
  by savings in legal administrative costs
• Compensation is fairer, more efficient closer
  fit between concept of avoidability pt safety