The Malpractice Lawsuit:

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1 The Malpractice Lawsuit: Process and Prevention Advocate Health Care 7 th Annual Advocate Trauma Symposium Wyndham Lisle - Chicago November 18, 2010 Rogelio Lasso The John Marshall Law School

2 BACKGROUND I teach law at JMLS in Chicago. specialties litigation, med mal, and products liability law I co-author a Treatise on Illinois Tort Law Prior to teaching, I practiced law in Chicago for several years, representing physicians and hospitals in Medical Malpractice law suits. was also briefly part of the Risk Management Team at a couple of local hospitals. I will share with you some information about the process and prevention of Medical Malpractice lawsuits. We will conduct a mock deposition of a physician We will have a panel discussion on malpractice with two prominent lawyers, one who specializes in defending health care providers and one who specializes in suing health care providers. Because of time constraints, please hold Qs until end

3 INTRODUCTION The professional life of the trauma and acute care provider involves the management of risk. Almost all of the patients you care for are at risk for loss of life or limb. ou are also the ones called when things are not going well for the care of the patients in other practice areas. Bad outcomes are often inevitable despite early and effective care. The Trauma and Acute Care specialty is also error prone and you can anticipate an irreducible rate of bad outcomes that are the result of your mistakes and those of your colleagues. Dr. Michael Sise, Clinical Professor of Surgery and Medical Director of Trauma Services at UCSD Scripps Mercy Hospital in San Diego

4 Surveys of health care providers regarding malpractice law suits show three things: Most providers are concerned about being sued; Those concerns are not based on actual risks regarding malpractice suits; Those concerns are not relieved by most tort reform efforts, particularly l the recently overturned caps on non-economic damages in Illinois.

5 FEW PEOPLE INJURED BY PROVIDERS SUE Most people who are injured as a result of malpractice do not sue Only 4 % - 7% of those injured bring a law suit the same percentage as in the 1980s. The few cases where malpractice is clear are quickly settled, often prior to or soon after the suit is filed. Of the cases filed, MOST are resolved in terms favorable to the health care provided Most cases are dismissed i d with provider paying nothing some b/c P abandons the case or lawyer is incompetent many after discovery with the provider paying nothing b/c P s expert could not prove malpractice a few a settled for nuisance value a business decision by the insurer and often over the objections of the provider Very few dismissed as frivolous affidavit requirement stops most frivolous suits only about 5-8% of cases filed actually make it to trial of those, providers win 73% of the time!

6 Let s talk about how to prevent law suits POOR COMMUNICATION, NOT MALPRACTICE, IS BASIS FOR MOST LAW SUITS There is a good deal of malpractice in the health care field. Estimates regarding number of yearly deaths from Malpractice at American Hospitals hover around 200,000 BUT, many people p who sue do not sue because of a bad outcome or malpractice They sue because of Poor communication among providers; Poor communications b/w providers and patients; Poor doctor/patient relationships If malpractice or bad outcomes are not the basis of most law suits, then most law suits are preventable

7 PREVENTING MALPRACTICE LAW SUITS - PART I Develop good communication and rapport with patients t and amily Spend as much time on your contact with patient t and family as you do managing the patient s medical problem Maintain a good flow of information to the patient and family Make sure that colleagues treating the patient know what you have communicated, and Suggest they also maintain good communication with patient and family Study what successful hospitals are doing e.g. University of Michigan s prevention program, which includes quick disclosure and compensation has resulted in significant reduction of law suits and a 61% decline in legal costs

8 PREVENTING MALPRACTICE LAW SUITS - PART II When complications happen (even if due to medical error) Discuss the event with the patient and her family Explain (in lay person s terms) what happened and why you believe it happened if there was medical error, admit it calmly and dispassionately (not defensively), and tell patient and family what is being done to manage the event be honest, sincere, and, above show empathy... not sympathy! acknowledge how the patient t and family must feel not how you feel! Help the family focus on what can be done to help the patient s recovery If the complication was due to medical error, Have a plan for how to quickly compensate the patient Dispassionately and calmly document in the chart (a) what happened; (b) your plans for management; (c) what you told the patient and family

9 DEALING WITH THE MALPRACTICE LAW SUIT - PART I Overview of the Malpractice Litigation Process Process that may take several years. Usually starts with Letter of intent to sue Soon followed by a Complaint Your attorney will respond to the Complaint by answering it with a denial of malpractice, or Seeking a dismissal of the law suit Discovery The process of (a) developing the facts in preparation for trial or settlement Involves interrogatories and depositions Medical records are obtained prior to the suit (b) of choosing expert witnesses depositions of experts (c) developing a defense strategy

10 DEALING WITH THE MALPRACTICE LAW SUIT - PART II After receiving an attorney s letter of Intent to Sue Notify your insurer & Open your own file Make sure records are not lost, or altered Discuss claim ONLY with your attorney and insurer Do not talk to the patient or family about claim If still caring for the patient, continue to do so as dispassionately as possible If possible, transfer the case to a colleague with careful notes do not discuss the claim with colleague Develop a Good Working Relationship with Your Attorney You must work as a team S/he knows the law you know the medicine. Dealing with Discovery Testifying in court is traumatic but 95% of cases never reach trial Being deposed is the next most traumatic event

11 THE DEPOSITION Provide opposing lawyers opportunity to meet and become familiar with testimony of key witnesses Are sworn statements with a record kept by a court reporter the testimony can be used later at trial for impeachment purposes. All questions asked must be answered, even if they cover irrelevant matters which will not be allowed at trial

12 SIMULATION Deposition of Dr. Hamilton in the case of Rosado v Hamilton, MD In the suit (based on a case in another state) Mr. Rosado claims that the doctor was negligent in the surgery performed on his left knee and that the doctor did not properly obtain his consent for the surgery to his right leg. Mr. Rosado was brought to the E/R after falling off a fence. He was examined in the E/R by an orthopaedic surgery resident, who diagnosed Mr. Rosado with a left patellar tendon rupture and a right thigh hematoma. The resident ordered x-rays that confirmed these diagnoses, no further imaging tests were ordered. Mr. Rosado was admitted to the hospital for pain control and was scheduled for surgery the next day. The orthopaedic resident obtained Mr. Rosado s consent for the surgery to his left knee in the early afternoon on the day of the surgery, and he was taken to the operating room at around 8:00pm. According to Dr, Hamilton, the attending orthopaedic surgeon, she reviewed the chart and x-ray and found an injury that the resident missed-the right torn quadriceps. Dr. Hamilton states that Mr. Rosado verbally consented to surgery on his right leg. Instead of completing a new consent orm, the attending added an addendum to the original consent and initialed it. Mr. osado is alleging that he never had an injury to his right leg, and that when the urgeon first began operating on him, the surgeon cut the wrong leg. In order to cover this mistake up, the attending fabricated the documentation of the missed quadriceps tear.

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