Medical Malpractice / Risk Management - AAPA-LM

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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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PS. Your girlfriend called......................

PS. Your girlfriend called......................

. During a patient's two week follow-up appointment with his Cardiologist, he > > informed me, his doctor, that he was having trouble with One of his me > > dications. > > 'Which one?' I asked. > > 'The patch, the nurse told Me to put on a new one every six hours and now I'm > > running out of places To put it!' > > I had him quickly undress and discovered what I hoped I W ouldn't see. > > Yes, the man had over fifty patches on his body! Now, the Instructions > > include removal of the old patch before applying a new one. > > Submitted by Dr. Rebecca St. Clair, Norfolk , VA