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?
• Am I going to win or lose the
case?.
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 Outof-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 on the
part of the Physician, Allied
Healthcare Provider or Hospital
which causes Physical 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-ofPocket 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
California
Michigan
North Carolina
Arizona
Washington
Georgia
Pennsylvania
180
131
98
96
77
71
59
51
45
38
2004 NPDB Statistics
Physician Assistants
135 Payments for 2004
Average = $180,787.00
63
40
15
6
5
3
1
1
1
Misdiagnosis
Treatment Errors
Medication Errors
Failure to Monitor
Surgical Errors
Miscellaneous
OB
Equipment Failure
IV / Blood Products Related
2005 NPDB Statistics
Physician Assistants
110 Payments for 2005
Average = $98,875.00
64
21
13
1
5
4
1
Misdiagnosis
Treatment Errors
Medication Errors
Failure to Monitor
Surgical Errors
Miscellaneous
Equipment Failure
2006 NPDB Statistics
Physician Assistants
113 Payments for 2006
Average = $234,635.02
65
33
4
4
3
2
1
1
Diagnosis related
Treatment related
Medication
Surgery
Monitoring
Anesthesia
Obstetrics
Miscellaneous
2007 NPDB Statistics
Physician Assistants
94 Payments for 2007
Average = $90,875.00
45
24
11
5
4
2
2
1
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 – Case –
STD’s
• 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 today” – A
pap smear.
• “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
EVERYWHERE!
• Hospital
• Clinic
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
Question 2
Your reaction to a medical malpractice
law suit are:
1.
2.
3.
4.
5.
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
Questions
Question 3
The Discovery Rule states that the:
1.
2.
3.
4.
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
Questions
Question 4
All of the following except are elements
of a medical malpractice law suit:
1.
2.
3.
4.
5.
Duty
Breach
Blameless Ignorance
Causation
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.
2.
3.
4.
The Health Care Quality Improvement Act of
1986
NSR 725-62
Health Insurance Portability & Accountability
Act of 1996
CME – 6082 - 2005
Questions
Question 7
In a medical malpractice law suit, the
most difficult element to prove is:
1.
2.
3.
4.
Duty
Breach
Causation
Injury
Questions
Question 8
The medical record has been known as:
1.
2.
3.
4.
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
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.
2.
3.
4.
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
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
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
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