1 Malpractice Litigation, rd Party Lawsuits and 3 rd Litigation Stress Be Prepared Family Medicine Symposium J. Rogers Counsel, SCPMG June, 2008
2 Medical Malpractice Medical malpractice lawsuits are common: Prior to 1960, only one in seven physicians had been sued in their entire career, today estimated claims are filed against one out of seven physicians per annum* Family Medicine frequency estimates 1 lawsuit per 40,000 patient encounters Once every 6 to 8 years Medical office based suits are more common than hospital based ones Alleged failure or delay in diagnosis is the most common Cancers (Lung, breast, colon & prostate) Cardiovascular/CNS related Fractures (Ankle, hip & leg) Infections (Pneumonia/meningitis) * Oken, R. Note: Curing Healthcare Providers Failure to Administer Opioids in the Treatment of Severe Pain. Cardozo L Rev; : 1968, fn. 252.
3 Medical Malpractice Budetti, Peter and Walters, Teresa. Medical Malpractice Law in the United States.. Henry J. Kaiser Family Foundation
4 Medical Malpractice Budetti, Peter and Walters, Teresa. Medical Malpractice Law in the United States.. Henry J. Kaiser Family Foundation
5 Advice Reduce your likelihood of being sued: Establish a good patient relationship Set reasonable expectations Maintain competency Appropriate documentation
6 Physician-patient relationship Show compassion Be communicative Do not rush Answer questions Develop a management partnership Promptly discuss any unsatisfactory or disappointing outcomes Medical Center communication resources Kaiser Permanente s s Health Care Ombudsman Mediators Expression of sympathy/empathy vs. admission of liability
7 Physician-patient relationship Physicians who had never been sued when compared to those that had: Laughed and used more humor Asked patients their opinions Encouraged patient interaction Educated patients regarding expectations On average, spent over three minutes more during a routine visit Levinson, W, et al. Physician-Patient Communication: The Relationship and Malpractice Claims Among Primary Care Physicians and Surgeons. JAMA Feb 1997; 277(7):
8 Reasonable Expectations Modern medicine is victim of its own successes Raised public expectations Use informed consent discussion to educate patient Informed consent signed consent form
9 Competency Stay up-to to-date Guides and protocols If they exist, know them If you deviate from, document your rationale Repetitive visits with no improvement Expand your differential diagnosis Seek appropriate consultation Procedures that you are educated, trained and experienced in
10 Documentation Your relationship with a patient may help to keep you out of a lawsuit, but your medical record documentation will help you to win it It s s the opposing attorney s s first glimpse of you and your medical care Sloppy charting will be used to imply shoddy medical care or care that is cursory and casual Appropriate level of detail given to the clinical issue(s)
11 Legible Documentation For yourself and others Illegible records are a violation of California s s Medical Practice Act and could subject you to MBC discipline Objective NO jousting, jousting, jokes, rude or derogatory remarks Accurate Avoid superlatives, stick to facts Don t t underestimate, yet don t t exaggerate Timely If late, document
12 Include: Documentation Your rationale/differential/thought process Non-compliance issues Follow up advice Informed consent/refusal and other patient discussions Phone conversations
13 Documentation NEVER improperly alter or change afterward Date, time and sign Single strike through Improper alteration Makes an otherwise defensible case, indefensible Can lead to MBC disciplinary action Even if you do properly update, usually of no legal advantage in doing so Seen or presented as CYA
14 Documentation Electronic medical record Time stamping of entries Check box format Avoid single, continuous line Did you actually cover the material/questions? Helpful to add pertinent/relevant comments
15 If you didn t t chart it, you didn t t do it myth Your response may be (in decreasing order of effectiveness): 1. Yes, I did because I wrote it in the medical record 2. Yes, I did because I remember it even though I didn t t write it (independent vs. refreshed recollection) 3. Yes, I did because even though I don t t remember it and didn t t write it in the record, it is my practice and habit to do it in similar situationss You are perfectly entitled to testify to any of the above Typically, the lower on the scale, the more believable or credible your testimony will be Just because you didn t t chart it, does NOT mean you didn t t do it To be determined by the trier of fact
16 Medical Malpractice The patient through his/her attorney decides who to sue The most culpable physician is not always targeted
17 Medical Malpractice Upon notice of a lawsuit: Do NOT Discuss the case with others Peer review/qa OK Do your own medical research Review the medical record on your own Ignore communications from your attorney
18 Medical Malpractice Upon notice of a lawsuit: Do Notify the SCPMG Legal Department ASAP Actively participate in your defense Educate your attorney - you are the physician, not the attorney Educate yourself about the legal process SCPMG Legal Department web site and online guides Accessed via the SCPMG physician portal Discuss with your attorney
19 Medical Malpractice Outcomes Many law suits are either abandoned by the patient or dismissed by the court Many law suits are settled before trial or arbitration NO admission of liability or wrong doing Many of these do NOT require MBC reporting Settled for less than the MBC reportable amount Of those tried, most are won by the physician Physicians win about 60 + %* * Medical Malpractice: Verdicts, Settlements and Statistical Analysis. Horsham, PA: Jul Verdict Research; 2002.
20 3rd Party Lawsuits Your medical care is NOT at issue and the SCPMG, Kaiser Foundation Hospitals and/or Kaiser Foundation Health Plan, Inc. are NOT named defendants You may be asked to testify either as a Percipient witness or Limited to facts Expert witness Facts and opinions You do not need your own attorney Coordinated by your Medical Center s legal desk You should not deal with the attorney directly
21 General principles 3rd Party Lawsuits Do not take sides Do not guess, speculate or assume If you believe you knew the answer at one time, but cannot remember I I don t t remember If you do not know and believe you never knew I I don t t know
22 3rd Party Lawsuits Percipient witness Facts from the medical record or your recollection including: Symptoms or other patient's statements Physical findings Procedures that were performed Treatment prescribed or carried out Dates of examination, admission and discharge Words written in the medical records, if illegible A diagnosis that you made at the time of treatment Minimal financial compensation
23 3rd Party Litigation Expert witness Facts and Opinions Explanation of medical terms A discussion of the significance of any of the facts An explanation of the reasons you had for reaching any conclusions or making any diagnosis A discussion or interpretation of the relationship of any of the facts to any other event, including the accident or event which is the basis for the action An opinion given at the appearance as to a probable diagnosis (SCPMG) Compensated for your time and expertise
24 Litigation Stress 20% of doctors who are sued for malpractice rate the event as the most significant in their life 60% state that being sued altered their lives and practices completely 40% underwent a major depression Charles, Sara and Frisch, Paul. Adverse Events, Stress and Litigation A Physician s Guide.. New York: Oxford University Press, 2005.
25 Litigation Stress Charles, Sara and Frisch, Paul. Adverse Events, Stress and Litigation A Physician s s Guide. New York: Oxford University Press, 2005.
26 Litigation Stress Litigation related stress is to be expected Initial reactions include: Betrayal/Shock/Anger/Anxiety/Dread/Shame Later reactions include: Anger/Concern/Anxiety/Guilt/Isolation Panic vs. Reassurance Intrusive thoughts/preoccupation with case Upon conclusion, reactions include: Anger/Frustration/Resentment/Shame Relief/Restoration of Confidence/Vindication
27 Litigation Stress Responses to a law suit: Denial Cannot be happening to me Avoidance Cutting back on procedures to lessen the possibility of another suit Uncooperative with defense efforts Overwork Seeing more patients to show others you have not lost your touch Self-doubt Thinking you could or should have done something differently, acted sooner or spent more time with the patient
28 Litigation Stress Common stress symptoms Physical Fatigue/Headaches/Insomnia/Palpitations/GI Mental Reduced concentration/indecisiveness/racing Emotional Anxiety/Anger/Frustration/Fear/Irritability/Depression Behavioral Changes in Eating, Drinking or Smoking/ Hyperkinesis/Overwork/Abusive behavior
29 Litigation Stress Litigation related stress reactions Initial reactions usually last a couple of weeks Fluctuate with time May be exacerbated With case activity On anniversary date of the event At re-credentialing time
30 Litigation Stress Unrecognized/untreated stress can lead to: Depression Adjustment disorder Physical illness May exacerbate a pre-existing existing condition Drug/alcohol abuse
31 Litigation Stress Why do physicians react in this manner? Physician s s personality type Nature of our current legal system Other factors
32 Litigation Stress Personality type Physicians tend to be Self-critical Excessive doubt/guilt High standards Controlling Used to taking charge and making decisions No control over legal process Compulsive Exaggerated sense of responsibility Attention to detail
33 Litigation Stress Nature of our legal system To prevail, a patient must establish fault Physician s s conduct deviated from the standard of care Physicians see this as an attack on one s s honor For physicians, it s s personal! For many patients, it s s about a faceless institution and money For attorneys, it s s about the process and fees The litigation process is a slow one Seems to drag on forever The average Kaiser SCAL med mal claim takes about 13 months from to
34 Litigation Stress Other considerations Amount of animosity Nature/severity of the injury Amount/type of publicity
35 Litigation Stress The earlier you recognize and treat litigation related stress, the better Take care of yourself Coping Do the things you ordinarily do to relieve stress Litigation is another one of life s s stresses
36 Litigation Stress Coping - Manage your stress positively Educate yourself Recognize your reactions
37 Litigation Stress Education and understanding Litigation stress Read up on Discuss with professionals Legal process Read up on Work closely with your legal counsel Ask questions
38 Litigation Stress Recognize your reactions Get a personal physician Do NOT self-medicate Be honest with yourself
39 Litigation Stress Useful coping strategies: Social support Restoring control Improving your self-esteem esteem Charles, Sara and Frisch, Paul. Adverse Events, Stress and Litigation A Physician s s Guide.. New York: Oxford University Press, 2005.
40 Social support Litigation Stress Discuss your feelings with someone you trust Limit such discussions to the impact of the lawsuit on your psychological and emotional well being Do NOT discuss case specific facts Seek professional assistance if needed
41 Restore control Litigation Stress Learn about the legal process Actively participate in your defense Adequately prepare for your deposition and the arbitration or trial Balance your professional and personal life
42 Litigation Stress Improve your self-esteem esteem Engage in activities to increase your competency Work on seeing yourself as a good physician Be objective
43 Litigation Stress Independent of the outcome, try to make something good of the experience Objectively evaluate your conduct and care: Was a mistake made? Take corrective actions to prevent recurrence Excessive self-blame is harmful Emotionally and physically Interferes with your ability to take corrective action Charles, Sara and Frisch, Paul. Adverse Events, Stress and Litigation A Physician s s Guide. New York: Oxford University Press, 2005.
44 Kaiser Litigation Stress Resources Employee Assistance Program (EAP) Works with physicians, too Outside mental health benefit SCPMG Legal Department Attorneys Web Site Accessed via the SCPMG physician portal
46 Take Home Your goal should be to avoid malpractice claims, not to win them Treat patients honesty and with respect Thorough and accurate documentation Promptly acknowledge and openly discuss disappointing or unsatisfying outcomes
47 Take Home Your charting and deposition conduct are important determinants in plaintiff s decision to drop, settle or arbitrate a case Actively assist and participate in defending your medical care Most medical malpractice claims are resolved in favor of the physician
48 Take Home When testifying in 3 rd party lawsuits, remain objective and neutral Litigation stress is unavoidable Use existing coping strategies to restore your self- esteem and control Educate yourself about the legal process Excessive self-guilt is detrimental Seek support as needed Do NOT self-medicate
49 Selected References Anderson, Richard (ed). Medical Malpractice A Physician s s Sourcebook.. New Jersey: Humana Press, Inc., Brazeau, Chantal. Coping With the Stress of Being Sued. Fam Prac Man. May 2001; 8(5): Budetti, Peter and Walters, Teresa. Medical Malpractice Law in the United States.. Henry J. Kaiser Family Foundation Charles, Sara and Frisch, Paul. Adverse Events, Stress and Litigation A Physician s s Guide.. New York: Oxford University Press, Williams, Alan. Physician, Protect Thyself.. Colorado: Margol Publishing, 2007.
51 Medical Malpractice Litigation Roadmap Patient care is provided Dissatisfied patient/family See a lawyer Medical records are requested, copied and reviewed Notice of intent to sue Filing/service of lawsuit Litigation process Attorney meetings/expert reviews/discovery/depositions Outcomes Not pursed/dismissed Settled Arbitration/Trial Appeals possible, but not common MBC/NPDB reporting
52 Medical Malpractice Decision of arbitrator or jury Battle of the medical experts Who is more credible/persuasive Sympathetic patient? Catastrophic outcome Likable physician? Competent/Caring/Credible/Arrogant Appeals Not likely, but can and do occur