Medical malpractice. Deborah B. Garibay, RN, JD, CPHRM Deputy General Counsel Medical Faculty Associates, Inc.

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1 Medical malpractice Deborah B. Garibay, RN, JD, CPHRM Deputy General Counsel Medical Faculty Associates, Inc.

2 4 required elements Duty owed Breach of the duty Causation Harm/damages

3 Duty A patient physician relationship exists when a physician serves a patient s medical needs Based on trust and consent; Usually contractual but may be implied Gives rise to physicians ethical obligations to place patients welfare above their own self interest; and To advocate for their patients welfare. AMA Opinion And to provide all necessary treatment until the relationship is ended.

4 Breach of Duty (failure to meet the standard of care) The standard of care is determined by expert testimony The personal opinion of an expert, or mere reference to the educational and profession background of an expert, is insufficient to establish familiarity with a national standard of care. Reasonably prudent provider Judged against members of the same health care profession; with similar training and experience; situated in the same or similar communities (AMC); and the NATIONALLY recognized SOC as it existed at the time of the alleged medical malpractice.

5 Causation The breach of duty, or the act which was not up the standard of care, must be the cause of the resulting injury. The BUT For test The causal relationship between breach and injury is established through expert testimony based on a reasonable degree of medical certainty, that the defendant s negligence is more likely than anything else to have been the cause (or a cause) of plaintiff s injuries. Derzavis v. Bepko, 766 A.2d 514, 522 (D.C. 2000) A bad outcomes does not mean there was malpractice (must also have the duty & breach)

6 Harm/damages Damages are not the same as injuries. Damages can be: lost wages or cost of replacement services, or pain and suffering, or loss of the ability to do things a person could have done if not for the injury, or Loss of chance.

7 Lawsuits DC Statute of Limitations when the plaintiff knows or with the exercise of due diligence, should know of the injury. 3 years for medical malpractice Starts when disability removed 2years for wrongful death The Medical Malpractice Amendment Act of 2006, D.C. Code , et seq. 90 day Notice of Intent to sue Mandatory mediation

8 90 Day Notice of Intent A plaintiff who wants to bring a medical malpractice action must notify the defendant within 90 days prior to filing the action. D.C. Code Ann (2012). Notice may be delivered at the last known address registered to the defendant (i.e. the address you have on file with the Board of Medicine). The court can excuse failure to give timely notice if the plaintiff shows a good faith effort to give the required notice. The notice should include information about the legal basis for the claim and the type and extent of the loss suffered, including information about the injury.

9 Vicarious Liability Under a respondeat superior theory of vicarious liability, an employer is responsible for the wrongful acts or omissions of an employee if they were committed in furtherance of the business of the employer. Convit v. Wilson, 980 A.2d 1104 (D.C. 2009).

10 Mediation Before Discovery begins Mandatory Who MUST attend mediation? All named parties and their counsel. Corporate representatives with settlement authority. Insurance adjusters.

11 Discovery 2 types: Interrogatories Written questions Production of documents Policies/ procedures Medical record s/text messages/journals Deposition the sworn testimony of a witness/party/expert; taken before trial; in a location that is out of a court setting; without a judge present.

12 Trial Superior Court for the District of Columbia ***Average of 3 years to get here*** 6 jurors Rules of Evidence 2 3 weeks in court > Appeal

13 National Practitioner Data Bank Each entity, including an insurance company, which makes a payment under an insurance policy, self insurance, or otherwise, for the benefit of a physician, dentist or other health care practitioner in settlement of or in satisfaction in whole or in part of a claim or a judgment against such physician, dentist, or other health care practitioner for medical malpractice, must report to the NPDB and to the appropriate State licensing board(s) in the State in which the act or omission upon which the medical malpractice claim was based.

14 Credentialing inquiries What do I have to report? It all depends on how they ask the question Ex: if you were named on a 90 Day Notice of Intent to sue that is considered a CLAIM CALL or me. I am here to help you

15 Legal/Risk Management Department 2120 L St., Suite 610. Deputy General Counsel Deborah B. Garibay, RN, JD, CPHRM (office) (cell) Risk Management Specialists Nancy Nan Shapiro, RN, MBA, CPHRM (office) (cell) Stephanie Gonzalez, RN, MHSA (office) (cell)

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