Transcript Medical Malpractice / Risk Management - AAPA-LM
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
Medical Malpractice Process
Being put on notice Discovery Deposition Preparation for trial Conclusion on the case .
Reaction To A Medical Malpractice Lawsuit
That it can’t be happening to me.
You don’t want to believe it.
You’re thinking, “I’m too young to be sued” .
Reaction To A Medical Malpractice Lawsuit
My career is over I’ve been careful I know that I didn’t do anything wrong .
Reaction To A Medical Malpractice Lawsuit
You recognize its not a dream You are really being sued The court room is not like the office, hospital or clinic .
In The Court Room
You’re Like A Duck Out Of Water .
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?
.
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?
.
Higher Degree of Self Doubt
• Why do I feel guilty? • Did I screw up? • Did I cause the problem?
Common Sense Risk Management Strategies
Risk Management Strategies
• Reduces medical liability
exposure
• Ultimately provides better care
for your patients .
Risk Management Strategies
•
A more organized office, clinic or hospital operation
• Fewer chances of important
details to fall through the cracks .
Discovery Rule
• Statutes of Limitations – Puts the
Plaintiff on Notice
• When the Plaintiff knows or should
have known
Discovery Rule
• Twenty Two Months to be
reported
• Thirty Four Months for the claim
to be resolved
• Total of Fifty Five Months
.
Medical Malpractice Cost
• $17,000 - $25,000 for an Out-
of-Court Settlement
• $75,000 - $112,000 to take it
to verdict .
Case In Point
Four Years Later A Malignant Tumor Seven Years – Surgical Towel
Medical Malpractice Defined
• Medical Malpractice can be
defined as Negligence which causes Physical on the part of the Physician, Allied Healthcare Provider or Hospital or Emotional Damage to the patient.
Medical Malpractice Defined
•Duty •Breach •Causation •Injury - Damages
Duty
Provider – Patient Relationship Implied Contract
Breach Standard of Care
External / Internal
Causation
• Cause In Fact – The providers negligence
caused the injury
• Or a reasonable close connection existed
between the provider’s conduct and the patient’s injury
• Must prove that the provider was the
“Cause-In-Fact” of the patients injury
Injury / Damages
• Death – Disability – Deformity –
Severe Pain
• Special – Lost Wages – Out-of-
Pocket Expenses
Injuries / Damages
• General – Intangible Losses –
Pain – Suffering – Emotional Distress
• Punitive Damages – Fraudulent
Case
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 2
• Did the doctor, allied
healthcare professional or hospital breach the Standard of Care in this specific situation?
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?
.
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) • Physician Assistants • Nurse Practitioners • Nurses
254,678 1,299 812 4,459
National Practitioner Data Bank Sept 1, 1990 to Oct 11, 2008 Physician Assistants New York Florida Texas 180 131 98 California 96 Michigan 77 North Carolina Arizona 71 59 Washington 51 Georgia 45 Pennsylvania 38
2004 NPDB Statistics Physician Assistants 135 Payments for 2004 Average = $180,787.00
63 40 15 Misdiagnosis Treatment Errors Medication Errors 6 5 Failure to Monitor Surgical Errors 3 1 OB 1 Miscellaneous Equipment Failure 1 IV / Blood Products Related
64 21 13 1 5 4 1 2005 NPDB Statistics Physician Assistants 110 Payments for 2005 Average = $98,875.00
Misdiagnosis Treatment Errors Medication Errors Failure to Monitor Surgical Errors Miscellaneous Equipment Failure
65 33 4 4 3 2 1 1 2006 NPDB Statistics Physician Assistants 113 Payments for 2006 Average = $234,635.02
Diagnosis related Treatment related Medication Surgery Monitoring Anesthesia Obstetrics Miscellaneous
45 24 11 5 4 2 2 1 2007 NPDB Statistics Physician Assistants 94 Payments for 2007 Average = $90,875.00
Diagnosis Related Treatment Related Medication Related Surgery Related Monitoring Related Other Obstetrics Related 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 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 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 • O – Objective • A – Assessment • P – Plan • E – Patient Education • R – Reaction to Patient
Education . EBI
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 –
STD’s Case –
• 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 pap smear.
today” – A
• “The patient was found in the
bathroom without a purse ”. – Without a pulse.
Documentation Dictating
• 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 hospital would read the medication orders, we wouldn’t have medical 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 • Hospital • Clinic
EVERYWHERE!
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
document
• Can be subpoenaed • Subject to Discovery • Civil / Criminal proceedings
E-Mails
• No longer in your control once
it is sent
• Sensitive information • STOP and THINK before you
SEND .
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 case • Appears to be Dishonest /
Deceitful
• Will make a Good Case Better • Will make a Poor Case Good • Plaintiff’s Attorney is in
Control .
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” • Impossible to Defend • Almost Certain to Settle • Stops Your Power to Bargain • MAYNOT be Covered by Medical
Malpractice 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 • Too Little Value • The 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 Suggestions
7. Don’t underestimate the plaintiff’s attorney.
8. Don’t argue with the plaintiff's attorney. 9. Accept support from 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 .
You
Have A Great Conference
The End
Questions
Question 1 Developing risk management strategies in your practice can: 1. Reduce medical liability exposure 2. Provide better care for the patient 3. Provide a better organized office operation 4. Fewer chances of important details to fall through the cracks 5. All of the above
Questions
law suit are: Question 2 Your reaction to a medical malpractice 1. You are distraught 2. 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 to 4. The very idea of someone questioning your ability 5. All of the above
Questions
Question 3 The 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 4 All of the following except are elements of a medical malpractice law suit: 1. Duty 2. Breach 3. Blameless Ignorance 4. 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
Questions
Question 6 The National Practitioner Data Bank was the inception of: 1. The Health Care Quality Improvement Act of 1986 2. NSR 725-62 3. Health Insurance Portability & Accountability Act of 1996 4. CME – 6082 - 2005
Questions
Question 7 In 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 fades 2. A legal record 3. What you will do for and to the patient 4. What has been done to and for the patient
Questions
Question 9 Dictating the medical record is the: 1. Easiest and best way to document 2. Eliminates the hassle of writing messages on slips of paper 3. Encourages a more complete note 4. All of the above
Questions
Question 10 All of the following except are a communication success: 1. Careful to explain what you are doing 2. Encourage you patient to talk more 3. Spend less than 15 minutes with the patient 4. Use more humor and laughed more 5. All of the above
Answers 1. 5 2. 5 3. 2 4. 3 5. 1 6. 1 7. 3 8. 1 9. 4 10.3
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