Transcript Patients want full disclosure of errors

Medico-Legal Issues in
Neuromodulation 2012
Robert M. Levy, M.D., Ph.D.
Professor and Chairman, Department of
Neurosurgery
Co-Director, Shands Jacksonville Neuroscience
Institute
University of Florida College of Medicine
Jacksonville, FL
Editor-in-Chief
Robert Levy, MD, PhD
 www.neuromodulationjournal.com
North American
Neuromodulation Society Annual
Meeting
Wynn Hotel
Las Vegas, NV
December 8, 2012
Disclosures
 Consultant/Research/Stock Options
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Alfred Mann Foundation
Bioness
Mainstay Medical
Medtronic
Nevro
Spinal Modulation
St. Jude Medical
Vertos
Critical Teaching Points
 Inevitability of Errors
 Increasing complexity of dynamic specialty
 Importance of Continuing Education:
Guidelines, risk averse practices
 Patient behavior and relationship
management
Medical Error Reduction
 Pay attention to the case report literature:
“birth pains”
 Go to meetings, especially those discussing
pertinent clinical management of
controversial topics
 Adopt consensus standards and practice
guidelines in your practice, e.g.
AANS/CNS guidelines
Three Types of Errors: Litigation
 1) Process errors: During the conduct of
procedures, system problems (personnel,
equipment, monitoring)
 2) Knowledge errors: A drug interaction is
not known or identified; Medications are
not reconciled; Drugs are mal-prescribed
 3) Documentation: Informed Consent
“Nevers”
 Surgery on wrong body part: Left sided
selective root block on patient with right
side radicular pain
 Surgery on wrong patient
 Retained foreign body: e.g. shunt fragment
 Death of healthy patient from procedure or
medication error
Are Medical Errors Inevitable?
 Factors under physicians control
1. Medical knowledge
2. Technical skills
3. Risk practices; Documentation
• Factors not under physician control
1. Personnel ( other doctors, RN’s, AHP)
2. Equipment, systems, demanding hours
Are Medical Errors Inevitable?
 Complex interaction of multiple dynamic
personnel and systems = a statistical
inevitability for error
 Human failing of seeking someone to blame
confounds efforts to find and remediate
factors that cause error
Runciman WB, Merry AF, Tito F. Error blame and the law
in health care:An antipodean perspective
Ann Intern Med 2003;138:974-9
Blaming Physicians
 Patients hold physicians accountable, and do not
see errors as inevitable
 Survey of large health plan: 39% felt that
physician should be punished when errors led to
morbidity
 Patients:Licensure suspension, dismissal from
health plan, etc.
Mazor KM, Simon SR, Yood RA, et al.
Ann Intern med 2004;140:409-18
“Frivolous Lawsuits”
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1452 closed claims: Expert evaluation
3%: no evidence of injury
80% of claims were for serious injury/death
27% discordant (10% payment, no error;
16% no payment, but true error)
Studdert DM, Mello MM, Gawande AA, et al.
NEJM 2006;354:2024-33.
Standard of Care
 “Standard of Care” has moved from a
regional to national benchmark
 Definition: Physician activity that a
“ Reasonably prudent and competent
physician with the same or similar training
would do in the same or similar
circumstances”
Rich BA. Medico-legal commentary.
Pain Medicine 2003;4:202-5
Patient Relationships
American Academy on Physician
and Patient
1. Partnership
2. Empathy
3. Apology
4. Respect
5. Legitimization
6. Support
Lazare A, Putnam SM, Lipkin M Jr. The Three
functions of the medical interview. In Lipkin M Jr,
Putnam SM, Lazare A, eds. The Medical Interview:
Clinical Care Education and Research. New York:
Springer-Verlag, 1995:3-19
Trust
 Patients at 20 family practices asked to
take the “Trust in Physician Scale”
 Being comforting and caring
 Demonstrating competency
 Encouraging and answering questions and
explaining were all predictive of trust
Thom DH, Stanford Trust Study Physicians.
Physician behaviors that predict patient trust.
J Family Practice 2001;50:323-8.
Disclosure of Errors
 Patients want full disclosure of errors
 Encouraged statement:
a. an error has occurred;
b. the nature of the error;
c. why the error occurred;
d. how future recurrence will be avoided
e. an apology
Gallagher TH, Levinson W. Arch Intern Med
2006;165:1819-24.
Saying “I’m Sorry”
 “Authentic apology”:
1. A standard was broken
2. Admission of fault
3. Genuine remorse/regret
4. Offer restitution/promise reform
Berlin L. Will saying “I’m sorry” prevent a lawsuit.
AJR 2006;187:10-15.
Saying “I’m Sorry”
 There is evidence that a sincere apology can
reduce risk of litigation.
 However, a “botched apology” might
engender even more hostility and anger
Taft L. Apology and medical mistake: Opportunity or foil?
Ann Health Law 2005;14:55-94.
When to apologize??
“It’s easier to eat crow
while it’s still warm”
“Saying I’m Sorry”
 Know the policies that are pertinent to your
state!
 Know the policies of your malpractice
carrier!
 Know the policies of your hospital and/or
institution!
10 Ways to Get Sued
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Poor records
No informed consent
“Fixing” the record
Trusting the patient to
follow up
• Not tracking test
results
 Not reconciling
meds/allergies
 Diagnosis by phone
 Poor physician patient
relationship
 Inadequate time
 “Mum” after error
Rice, Medical Economics 2005
Conclusions from the Literature
 Strong Relationships
 Culture of Safety: procedural processes,
safeguards, after-action reviews
 Knowledge: Case report literature, practice
guidelines, expert reviews
 Awareness: Print/television media
Conclusions from the Literature
 Full Disclosure of the error to patient/family
 Thorough Evaluation and active follow-up
of all injured patients
 *Documentation: particularly of informed
consent, aftercare actions
Avoiding Lawsuits in Neuromodulation
 With significant assistance from Dr. Marc
Huntoon, Part I discussed the extensive
medical literature on this topic…
 Let’s take it to everyday clinical practice…
Avoiding Lawsuits in Neuromodulation
 Caveat: Despite best medical practice and
exemplary behavior, you cannot be guaranteed
that you will not be sued
 Some patients are motivated by anger, greed and
the desire for retribution
 All plaintiff’s malpractice lawyers are motivated
by anger, greed and the desire for remuneration
Avoiding Lawsuits in Neuromodulation
 Tort reform is critical for maintaining high quality
medical care in the US
 Tort reform is difficult due to the high prevalence
of lawyers in government and the power of trial
lawyers and their lobbyists
Avoiding Lawsuits in Neuromodulation
 We must increase our political and educational
efforts to survive - if we don’t work for change
then how can we complain?
Avoiding Lawsuits in Neuromodulation
 Short of eliminating plaintiff’s attorneys
with extreme prejudice (the CHICAGO
approach to problem solving), there ARE
strategies that you can use to avoid lawsuits
 These strategies are the same as those used
to maintain a high quality medical practice
Avoiding Lawsuits in Neuromodulation
 Ensure High Quality Practice
 Best medical care (NOT standard of care - this
is a legal term that describes the minimum
acceptable care)
 Up to date education (MOC, MOP)
 CME, Professional Meetings, Courses, Reading
Avoiding Lawsuits in Neuromodulation
 Ensure High Quality Practice
 Maintaining clinical skills
 Avoiding procedures for which skill set is
inadequate
 Establishing mentorship - practice in isolation
is risky
Avoiding Lawsuits in Neuromodulation
 Patient Communication
 Perform a TRUE history and physical
examination on all patients
 Take the time to establish a diagnosis and
treatment plan
 Communicate this plan effectively with the
patient and their caregivers
 Maintain communication
 Let the patient know that you care
Avoiding Lawsuits in Neuromodulation
 Patient Communication - Pitfalls
 “I have too many patients to see to spend that
much time with each patient”
 “I am too busy to return patient phone calls”
 “I already explained that”
 “I’ll do it tomorrow”
Avoiding Lawsuits in Neuromodulation
 Accurate and Timely Documentation
 Document informed consent discussion
immediately after it occurs
 IN ADDITION to standard informed consent
form
 Dictate operative dictations in a timely manner
Avoiding Lawsuits in Neuromodulation
 Informed Consent
 Always discuss risks, benefits and alternatives
in detail with the patient
 Identify the frequency of risk that you are
discussing (ie., every complication reported to
occur 1% of the time or greater)
Avoiding Lawsuits in Neuromodulation
 Immediate Recognition, Evaluation and
Treatment of Complications
 Neuroimaging studies immediately upon
demonstration of new complaints or
neurologic deficits (even in PARR)
 Early neurosurgical consultation and
reoperation for decompression or device
removal
Avoiding Lawsuits in Neuromodulation
 Timely communication with the patient and
family about:
 the nature of complications
 the plan for their management
 their potential outcomes
Avoiding Lawsuits in Neuromodulation
 Do not hesitate to request backup or
additional opinions
 Follow the recommendations of your expert
consultants (or at least document that
you have read and considered them)
Avoiding Lawsuits in Neuromodulation
 Do not withdraw in the face of
complications or bad outcomes
 This may be the MOST common reason
patients resort to litigation
Avoiding Lawsuits in Neuromodulation
 Before a lawsuit is filed:
 Contact risk management
 Involve hospital and clinic resources to provide
appropriate attention and support
 Follow the recommendations of health care
administration risk management experts
Avoiding Lawsuits in Neuromodulation
 Once a lawsuit has been filed:
 NEVER alter the medical record
 NEVER destroy or hide notes or records
 Even if you are completely in the right, this will suggest
culpability and the plaintiff’s attorneys will capitalize
on this
Avoiding Lawsuits in Neuromodulation
 Once a lawsuit has been filed:
 ALWAYS be fully disclosing with your attorneys and
experts
 ALWAYS be willing to accept education and training
for depositions and trials
 They are the experts and they cannot help if they don’t
know…
Avoiding Lawsuits in Neuromodulation
 In a Deposition or in the Courtroom:
 Answer only the questions that are asked
 NEVER volunteer information or explanations that
are not specifically requested
 NEVER present yourself as haughty, patrician,
unconcerned or superior
email: [email protected]
Telephone: 904 244 9451