Medical Malpractice Risk Management

1
Medical Malpractice Risk Management

• R. Monty Cary
• PA-C, M.Ed., DFAAPA
• Senior Partner
• Cary Associates, LLC.

2
Disclaimer

• Not intended as legal advice
• The cases are real
• Best learning is by example
• No pharmaceutical support

3
Failure to Diagnose
Referral
Examination
PITFALLS OF MEDICAL MALPRACTICE
SUPERVISION
Documentation
COMMUNICATIONS
4
(No Transcript)
5
Medical Malpractice Process
Being put on notice Discovery Deposition Preparati
on for trial Conclusion on the case.
6
(No Transcript)
7
Reaction To A Medical Malpractice Lawsuit

• That it cant be happening
• to me.
• You dont want to believe it.
• Youre thinking, Im too
• young to be sued.

8
Reaction To A MedicalMalpractice Lawsuit
My career is over Ive been careful I know that
I didnt do anything wrong.
9
Reaction To A MedicalMalpractice Lawsuit
You recognize its not a dream You are really
being sued The court room is not like the
office, hospital or clinic.
10
In The Court Room

• Youre Like A
• Duck
• Out
• Of
• Water.

11
After Learning About The Lawsuit

• Not being able to practice like you would like to
• Not being able to focus on patients like you
  should
• How do your co-workers feel about you?.

12
After Learning About The Lawsuit

• You are distraught
• The very idea of someone questioning your ability
• What will you do the next time you see the
  patient?.

13
Higher Degree of Self Doubt

• Why do I feel guilty?
• Did I screw up?
• Did I cause the problem?
• Am I going to win or lose the case?.

14
Common Sense Risk Management Strategies
15
Risk Management Strategies

• Reduces medical liability exposure
• Ultimately provides better care for your patients.

16
Risk Management Strategies

• A more organized office, clinic or hospital
  operation
• Fewer chances of important details to fall
  through the cracks.

17
Discovery Rule

• Statutes of Limitations Puts the Plaintiff on
  Notice
• When the Plaintiff knows or should have known

18
Discovery Rule

• Twenty Two Months to be reported
• Thirty Four Months for the claim to be resolved
• Total of Fifty Five Months.

19
Medical Malpractice Cost

• 17,000 - 25,000 for an Out-of-Court Settlement
• 75,000 - 112,000 to take it to verdict.

20
Case In Point

• Four Years Later A Malignant Tumor
• Seven Years Surgical Towel

21
Medical Malpractice Defined

• 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.

22
Medical Malpractice Defined

• Duty
• Breach
• Causation
• Injury - Damages

23
Duty

• Provider Patient Relationship
• Implied Contract

24
Breach

• Standard of Care
• External / Internal

25
Causation

• Cause In Fact The providers negligence caused
  the injury
• Or a reasonable close connection existed between
  the providers conduct and the patients injury
• Must prove that the provider was the
  Cause-In-Fact of the patients injury

26
Injury / Damages

• Death Disability Deformity Severe Pain
• Special Lost Wages Out-of-Pocket Expenses

27
Injuries / Damages

• General Intangible Losses Pain Suffering
  Emotional Distress
• Punitive Damages Fraudulent
• Case

28
Medical Malpractice 1

• How would a reasonable, careful and prudent
  doctor, allied health care professional or
  hospital behave in the same or similar
  circumstances?

29
Medical Malpractice 2

• Did the doctor, allied healthcare professional or
  hospital breach the Standard of Care in this
  specific situation?

30
Medical Malpractice 3

• Was the unreasonable, careless, inappropriate
  behavior on the part of the doctor, allied
  healthcare professional or hospital the proximate
  cause of the injury to the patient?.

31
National Practitioner Data Bank

• The Health Care Quality Improvement Act of 1986
• Public Law 99-660
• Doctors Dentist Allied Healthcare Providers
• Licensed Certified Registered

32
National Practitioner Data Bank

• 62 of cases are dismissed or dropped
• 32 in favor of the plaintiff
• 6 of cases go to trial

33
National Practitioner Data BankSept 1, 1990 to
Oct 11, 2008

• Physicians (All) 254,678
• Physician Assistants 1,299
• Nurse Practitioners 812
• Nurses 4,459

34
National Practitioner Data BankSept 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

35
2004 NPDB StatisticsPhysician Assistants

• 135 Payments for 2004
• Average 180,787.00
• 63 Misdiagnosis
• 40 Treatment Errors
• 15 Medication Errors
• 6 Failure to Monitor
• 5 Surgical Errors
• 3 Miscellaneous
• 1 OB
• 1 Equipment Failure
• 1 IV / Blood Products Related

36
2005 NPDB StatisticsPhysician Assistants

• 110 Payments for 2005
• Average 98,875.00
• 64 Misdiagnosis
• 21 Treatment Errors
• 13 Medication Errors
• 1 Failure to Monitor
• 5 Surgical Errors
• 4 Miscellaneous
• 1 Equipment Failure

37
2006 NPDB StatisticsPhysician Assistants

• 113 Payments for 2006
• Average 234,635.02
• 65 Diagnosis related
• 33 Treatment related
• 4 Medication
• 4 Surgery
• 3 Monitoring
• 2 Anesthesia
• 1 Obstetrics
• 1 Miscellaneous

38
2007 NPDB StatisticsPhysician Assistants

• 94 Payments for 2007
• Average 90,875.00
• 45 Diagnosis Related
• 24 Treatment Related
• 11 Medication Related
• 5 Surgery Related
• 4 Monitoring Related
• 2 Other
• 2 Obstetrics Related
• 1 Anesthesia Related

39
Physician Assistants

• Inadequate Supervision
• Inadequate Examination
• Untimely Referral
• Failure to Diagnose
• Lack of Documentation
• Poor Communications

40
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 . . .

41
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.

42
Physician Assistants

• Untimely Referrals
• All providers must ensure timely referrals
• Not sending the patient to the supervising
  physician, Emergency Room, other medical
  specialties.

43
Physician 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.

44
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?

45
Documentation

• The Witness Whose Memory Never Fades

46
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.

47
S.O.A.P.E.R.

• S Subjective
• O Objective
• A Assessment
• P Plan
• E Patient Education
• R Reaction to Patient Education. EBI

48
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.

49
Strengthening The Medical Record

• Write a full note. Write the positives and the
  negatives.
• Limit Abbreviations Case STDs
• Do not use Dictated But Not Reviewed.

50
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.

51
Documentation

• Dictating
• Easiest and best way to document
• Eliminates the hassle of writing messages on
  slips of paper
• Encourages a more complete note

52
Documentation Dictating

• Phone conversations are less burdensome.
• Reduces the risk of communications being over
  looked.
• 175 words dictated vs. 87 words written.

53
Legibility

• If the note is written, it must be Legible
• Case

54
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

55
Legibility

• Court found Physicians illegible handwritten
  prescription the cause
• First verdict finding a physician culpable solely
  due to poor penmanship
• Each paid 225,000.00.

56
Professionalism

• Professionalism
• and
• Documentation
• Go Hand In Hand

57
Physician

• If the nurses around this hospital would read
  the medication orders, we wouldnt have medical
  emergencies like this one

58
Nurses

• If the physicians around this hospital would
  learn to write so we could read it, there
  wouldnt be medication emergencies like his one.

59
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.

60
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. Im yours. Call
  404-875-6240 and ask for Daisy.

61
Atlanta Humane Society
62
Communications
63
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.

64
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

65
Confidentially

• HIPAA Health Insurance Portability
  Accountability Act of 1996 April 14, 2003
• Office
• Pharmacy EVERYWHERE!
• Hospital
• Clinic

66
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.

67
E-Mails

• Considered a business document
• Can be subpoenaed
• Subject to Discovery
• Civil / Criminal proceedings

68
E-Mails

• No longer in your control once it is sent
• Sensitive information
• STOP and THINK before you SEND.

69
(No Transcript)
70
Tampering Alert Signals

• Asking For Original Records
• Missing Medical Records
• Records Conflict With Patients Testimony
• Different Ink on Single Entry
• Different Handwriting.

71
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.

72
Tampering Alert Signals

• Dictating Weeks / Months After Patient is Seen
• Medical Malpractice cases have been won and lost
  on the issues of tampering.

73
Implications For The Plaintiff

• Will strengthen the case
• Appears to be Dishonest / Deceitful
• Will make a Good Case Better
• Will make a Poor Case Good
• Plaintiffs Attorney is in Control.

74
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.

75
Implications For The Defendant

• KISS OF DEATH
• Impossible to Defend
• Almost Certain to Settle
• Stops Your Power to Bargain
• MAYNOT be Covered by Medical Malpractice
  Insurance Fraud!.

76
Implications For The Defendant

• Defendant Will Lose Creditability
• Other Defendants Will Be Implicated
• May Lose Your License Criminal Offense.

77
Why Patients Dont Sue

• Takes Too Long
• Too Little Value
• The Doctor is A Friend

78
Thank You Enjoy The Conference
Thank You Enjoy The Conference
Thank You Enjoy The Conference
79
The End
80
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.

81
12 Suggestions

• 4. A deposition is easier than the NCCPA Board
  Exam
• 5. Dont volunteer information to the
  opposition, answer only the question given.
• 6. Ask about any legal proceeding you dont
  understand.

82
12 Suggestions

• 7. Dont underestimate the plaintiffs
  attorney.
• 8. Dont argue with the plaintiff's attorney.
• 9. Accept support from colleagues, friends and
  patients.

83
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.

84
You

• Have A Great Conference

85
The End
86
Questions

• Question 1
• Developing risk management strategies in your
  practice can
• Reduce medical liability exposure
• Provide better care for the patient
• Provide a better organized office operation
• Fewer chances of important details to fall
  through the cracks
• All of the above

87
Questions

• Question 2
• Your reaction to a medical malpractice law suit
  are
• You are distraught
• Your not going to be able to practice like you
  would like to.
• Your not going to be able to focus on patients
  like you would like to
• The very idea of someone questioning your ability
  
• All of the above

88
Questions

• Question 3
• The Discovery Rule states that the
• Average claim takes about 22 months to be
  reported after a medical incident
• Statute of limitations does not begin to run
  until the happenings of the event puts the
  plaintiff on notice
• Courts should not be faulted for blameless
  ignorance
• All of the above

89
Questions

• Question 4
• All of the following except are elements of a
  medical malpractice law suit
• Duty
• Breach
• Blameless Ignorance
• Causation
• Injury Damage

90
Questions

• Question 5
• True or False The Duty to care arises from the
  provider-patient relationship that is an implied
  contract
• True
• False

91
Questions

• Question 6
• The National Practitioner Data Bank was the
  inception of
• The Health Care Quality Improvement Act of 1986
• NSR 725-62
• Health Insurance Portability Accountability Act
  of 1996
• CME 6082 - 2005

92
Questions

• Question 7
• In a medical malpractice law suit, the most
  difficult element to prove is
• Duty
• Breach
• Causation
• Injury

93
Questions

• Question 8
• The medical record has been known as
• The witness whose memory never fades
• A legal record
• What you will do for and to the patient
• What has been done to and for the patient

94
Questions

• Question 9
• Dictating the medical record is the
• Easiest and best way to document
• Eliminates the hassle of writing messages on
  slips of paper
• Encourages a more complete note
• All of the above

95
Questions

• Question 10
• All of the following except are a communication
  success
• Careful to explain what you are doing
• Encourage you patient to talk more
• Spend less than 15 minutes with the patient
• Use more humor and laughed more
• All of the above

96
Answers

• 5
• 5
• 2
• 3
• 1
• 1
• 3
• 1
• 4
• 3

97
(No Transcript)
98
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
99
PS. Your girlfriend called......................
 PS. Your girlfriend called...................
...
100
(No Transcript)
101
(No Transcript)
102
(No Transcript)
103
(No Transcript)
104
(No Transcript)
105
(No Transcript)
106
. During a patient's two week follow-up
appointment with his Cardiologist, he gt gt
informed me, his doctor, that he was having
trouble with One of his me gt gt dications. gt gt
'Which one?' I asked. gt gt 'The patch, the nurse
told Me to put on a new one every six hours and
now I'm gt gt running out of places To put it!' gt
gt I had him quickly undress and discovered what I
hoped I W ouldn't see. gt gt Yes, the man had over
fifty patches on his body! Now, the Instructions
gt gt include removal of the old patch before
applying a new one. gt gt Submitted by Dr. Rebecca
St. Clair, Norfolk , VA
107
(No Transcript)
108
(No Transcript)
109
(No Transcript)