Medical Legal Issues in Pain Management: Lessons from Real Cases

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1 Medical Legal Issues in Pain Management: Lessons from Real Cases Matthew J. Donnelly, Esq. Deputy Chief Legal Officer Law Department February 19, 2014

2 Fast Facts Lawsuits are inevitable - 6 out of 10 physicians 55 and older have been sued - Male doctors are 2x as likely to get sued during their careers - Claim Frequency General surgeons 69.2% Surgical sub-specialties 57% Anesthesia 42.4% Internists 34% Source: AMA Policy Research Perspective, Medical Liability Claim Frequency: A Snapshot of Physicians, August Fast Facts Dispositions - 65% of lawsuits end in dismissal - 25% settle - 5% ADR - 5% go to trial 90% are won by physicians/hospitals Source: Physicians Insurer s Association of America. Claim Trend Analysis 2009 Edition. (Rockville, MD: Physician Insurer s Association of America 2009).

3 Malpractice Law Torts - a civil wrong causing injury to person or property for which the plaintiff may seek redress through the courts Malpractice Law Categories of Claims Lack of informed consent Negligence - Wrongful death - Medical malpractice

4 Malpractice Law Categories of Claims Informed consent - each person has the right to determine what will be done to his or her body - including no treatment Informed Consent The patient should be informed as to the following: - nature of the procedure, treatment or medication - benefits - why it is being recommended - material risks reasonably expected to exist - any alternative modalities available (including no treatment) - personnel performing

5 Informed Consent Reasonable patient versus a reasonable physician standard Malpractice Law Categories of Claims Negligence or Wrongful Death - Duty to patient - Breach of duty - Sustained injury - Causation relationship of injury to breach of duty

6 Duty arises from the physicianpatient relationship Duty to patient Breach of a duty Practice below the standard of care - What a reasonable practitioner in that specialty would do under similar circumstances Usually requires expert testimony Res ipsa loquitur - This Latin phrase means "the thing speaks for itself" - Retained foreign body

7 Injury Causation Relationship of the injury to the breach of duty The alleged malpractice must be the proximate cause of injury

8 Role of the Expert Expert Testimony The injury would not have occurred but for the defendants act OR It was a foreseeable result of the negligent conduct Malpractice Law Burden of Proof - by a preponderance of the evidence more likely than not, certainty of greater than 50% Damages - Economic monetary costs = medical bills / income - Non-economic pain and suffering, loss of consortium, etc. - Punitive (not always covered by insurance) damages to punish a defendant for willful and wanton conduct

9 Why Physicians Get Sued Bad outcome Negligent care Poor communication Why do Patients Sue? Precipitating Factors Poor Communication - With patient/family - With other caregivers (orally or in the chart)

10 Why do Patients Sue? Precipitating Factors Perceived lack of caring Perceived arrogance Patients (over) hear criticism of colleagues Unexpected outcome Need to know what happened and why Significant damages (physical, economic) What Types of Patients Sue? Wealthy patients Patients with medical or legal connections Demanding, hard-tosatisfy patients Patients who demand specific procedures Patients who have sued other physicians

11 Litigation Issues in Pain Management Cases Pre-op Clearance Informed Consent Surgical/Procedural Technique Communication between Staff, Residents and Nurses Overdose Incorrect Medication Wrong Site Procedure/Block Case 1 Facts: 32 year old mother of three presents to ED after an episode of inguinal pain on the left side. Due to history, recurrent nature of pain and refractory to medication, an ilioinguinal nerve block was performed two days later. Post procedure, patient developed complete numbness, described a dead leg which slowly improved in sensation and weakness over a few days. Sent to rehab for five days due to trouble ambulating. Still uses a walker after rehab.

12 Case 1 Chief Complaints: Pain in the inguinal area, partial left leg numbness, weakness in the knee and thigh and difficulty with coordination. EMG showed no evidence of neuropathy. Patient also claimed she was not explained the procedure and its risks, and she was on Dilaudid when she signed the informed consent form. Did Malpractice Occur?

13 Case 1 Lessons Learned: Clearly document all pre-procedure symptoms Thoroughly document informed consent Communicate with the patient using care and compassion Why Would A Lawyer Take This Case? Sympathy Potentially High Damages

14 Case 2 Facts: 71 year old patient with a history of five prior back surgeries had an intrathecal pump placed to infuse Dilaudid and Bupivacaine for pain control. Four days following a pump revision and medication refill, patient presented to the ED for dizziness, generalized weakness and vomiting. On exam, she had pinpoint pupils, drowsiness, dry mouth, a thick tongue and a decreased level of consciousness. After 45 minutes of rehydration, she was discharged home. Case 2 Facts (cont d): However, she was readmitted to the hospital the next day for dizziness, nausea and disorientation. During the admission, the pump rate was adjusted and her condition improved. She was discharged home two days later in stable condition. The patient still felt sluggish for a month so she was admitted once again for a full workup.

15 Case 2 The patient s pump was found to have been inadvertently filled with Clonidine and Baclofen, rather than Dilaudid and Bupivacaine.

16 Case 2 Knee injury due to narcotic withdrawal Bilateral knee replacement Acceleration of scoliosis Funny noise in right ear

17 Case 2 Lessons Learned: Pharmacy v. Pain Management Clinic Communication Documentation Prescription Drug / Heroin Abuse

18 Prescription Drug / Heroin Abuse National Epidemic National State & Local Enforcement Investigation no longer stops with the drug seeking patient Physicians and Pharmacists investigated Prescription Drug Monitoring Program (PDMP) Surveillance State medical and pharmacy boards stepping up enforcement

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