Basic medico-legal concepts Negligence

Transcription

1 Basic medico-legal concepts Negligence University of Ottawa Faculty of Medicine April 12, 2012 Slide 1

2 Why do patients sue? Why do patients sue? Slide 2

3 Why do patients sue? Patients and families litigate for a variety of reasons: Financial need, financial compensation Poor communication, Doctor doesn t seem to care Disappointment / anger over poor clinical outcomes or unfulfilled expectations Surprise at the incidental discovery of important undisclosed details Slide 3

4 Why do patients sue? Patients and families litigate for a variety of reasons: To find out what happened Because of the uninformed or unfortunate comments of other health care professionals To change the system for the better Slide 4

5 Basic medical-legal principles Negligence Slide 5

6 Negligence Lack of proper care or attention, carelessness Concise Oxford Dictionary The most common allegation in a legal action brought against physicians malpractice Slide 6

7 Negligence (cont d) Burden of proof: the plaintiff [person(s) who have initiated the claim] has the burden to establish that the defendant(s) was negligent The test: the plaintiff must convince the trier of fact, based on the evidence presented, that on the balance of probability there was negligence Slide 7

8 Negligence (cont d) Legal concept duty of care breach in duty harm or injury causation Slide 8

9 Negligence Duty of care when does it begin? what does it imply? Slide 9

10 Negligence (cont d) duty of care breach in duty harm or injury causation When a physician knows or ought to know that their opinion will be relied upon Slide 10

11 Negligence duty of care EP chats with ER nurse before shift RN describes husband's recurrent dyspepsia x 1 wk Dr EP has never seen RN s husband EP suggests: upper GI series - results to own MD antacids Two days later husband dies of massive MI Does EP have a duty of care to the husband? Slide 11

12 Negligence - duty of care Court s view a duty of care exists when a physician knows or ought to know that their opinion will be relied upon Slide 12

13 Negligence - duty of care 41 y.o. male one day post laparoscopic cholecystectomy chest discomfort and mild SOB Dr Gens asks Dr FP passing by in corridor What do you think of this ECG? Dr FP describes non-specific ST-T changes Dr Gens orders repeat for next morning patient dies of a MI during the night Does Dr FP have a duty of care? Slide 13

14 Negligence - duty of care What does a duty of care imply? Duty to: take a history and examine patient make a diagnosis (differential diagnosis) treat (or refer if unable to treat) disclose and discuss condition arrange follow-up Slide 14

15 Negligence (cont d) duty of care breach of duty harm or injury causation Norm or quality a doctor must meet when treating patients Judged against peers by referring to: expert opinion guidelines of professional associations textbooks, literature Slide 15

16 Negligence (cont d) Failure to fulfill the standard of care Every medical practitioner must bring to his task a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing. Crits v. Sylvester,1956 Slide 16

17 Negligence - standard of care The courts do not expect perfection Poor clinical outcomes are not necessarily a result of negligent care. It is easy to be wise after the event and to condemn as negligence that which was only a misadventure. Lord Denning, 1954 Slide 17

18 Negligence - breach of duty 29 y.o. with abdominal cramps x 2 days vomited x 3, diarrhea x 4 Day three visits Dr FP, diagnosis gastro Day eight visits Dr Int at walk-in clinic tender R>L, no guarding, BS present no rectal,? Crohn s Rx: Prednisone Slide 18

19 Negligence - breach of duty Day nine visits Dr Gast through ER warm, tender rectal mass periappendiceal abscess Was Dr FP s care substandard? Slide 19

20 Negligence - breach of duty 30 y.o. male 24 hour history of cough, fever, sharp chest pain 1230 hours to ER T 38.5, R 18, P 96, BP 120/ hours Dr FP clinically RLL pneumonia CXR: RLL pneumonia, WBC 16.8 ABGs not done Slide 20

21 Negligence - breach of duty 1400 hours: admitted IV antibiotics after BC x hours during third BC seizure and arrest Autopsy coned, cerebral edema second degree hypoxia Strep. pneumonia Was Dr FP s care substandard? Slide 21

22 Negligence - breach of duty 48 y.o. male, sore throat, muffled voice seen by Dr FP patient refuses to lie down for exam FP offers analgesics / antibiotics by injection patient refuses and goes home Admitted one hour later elsewhere diagnosis (epiglottitis) dies 1 h later unable to secure airway Was Dr FP s care substandard? Slide 22

23 Negligence - breach of duty To establish a breach of duty, is it necessary for the court to differentiate between an error in judgment and substandard or negligent care Slide 23

24 Negligence (cont d) duty of care breach of duty harm or injury causation Plaintiff must objectively demonstrate that some harm or injury has occurred May be physical or psychological harm or both Slide 24

25 Negligence - harm or injury The plaintiff must objectively demonstrate that some harm or injury has occurred May be physical or emotional harm or both Slide 25

26 Negligence - harm or injury 19 y.o. male waiting for hernia repair 47 y.o. male waiting for vasectomy Unfortunately, 19 y.o. has the vasectomy error recognized immediately vaso-vasostomy performed within two hours sperm counts since are normal Was there harm or injury? Slide 26

27 Negligence (cont d) duty of care breach of duty harm or injury causation Direct link between the injury and the alleged negligence Court will establish the link (or lack thereof), based on all the facts Experts will be asked to opine on causation Slide 27

28 Negligence - causation 35 y.o. woman with L breast lump x 2 months FP - mammogram neg, referred to surgeon Surgeon: 2 x 2 cm mobile mass, no nodes follow up in four months Repeat visit - nodes present biopsy - infiltrating ductal carcinoma Unresponsive to therapy - dies 6 months later Is the poor outcome causally related to delay? Slide 28

29 Negligence - causation Causation in law is not identical to scientific causation and must be established on the balance of probabilities, taking into account all the evidence: factual, statistical and that which the judge is entitled to presume. Statistical evidence may be helpful but is not determinate. Justice Sopinka, 1991 Laferriere v. Lawson Slide 29

30 Negligence - causation In Barnett v. Chelsea and Kensington HMC [1969], a night watchman was taken to hospital vomiting and suffering stomach pains, but he was sent away by the doctor on duty. Someone had slipped arsenic into the watchman s tea, and he died soon after leaving the hospital. The issue was whether the doctor s negligence caused the man s death. The court held that the man would have died even if he had been given the antidote as soon as possible after arriving at the hospital.

31 Negligence - addendum A poor outcome does not necessarily mean there was negligent care Before commenting on the care of others, make sure you have all the facts Gratuitous comments do initiate unfounded medico-legal difficulties Slide 31

32 Medico-legal concepts Informed consent and informed discharge Slide 32

33 Informed consent Basic Principle Every individual of adult years and sound mind has the right to control his/her own body Patients must consent to medical treatment Slide 33

34 Informed consent Exception - Emergency Treatment Patient cannot consent No one can consent for patient Imminent threat to life of patient No consent required Slide 34

35 Informed consent Valid Consent Voluntary Competent - Age - Mental Capacity Informed Slide 35

36 Informed consent Competence: Minors - Can still be capable - Age is a factor Mental Incapacity - Can still be capable Where incapable, look to substitute decision maker for consent Slide 36

37 Informed consent Substitute Decision Makers (Ontario): Guardian of the person Attorney for personal care Personal representative appointed by Consent and Capacity Board Spouse or partner Child or parent, or CAS Access parent Brother or sister Any other relative Slide 37

38 Informed consent What would a reasonable person want to know? Slide 38

39 Informed consent Informed includes: 1. Diagnosis (differential diagnosis) 2. Proposed treatment 3. Chances of success (reasonable) 4. Risks (material and special) 5. Alternative treatments 6. Consequences of non-treatment 7. Answer any questions Slide 39

40 Lack of informed consent Performing a procedure with total absence of patient consent amounts to battery Consent can be modified with time Failure to adequately obtain the patient s consent to treatment may constitute negligent or substandard care Slide 40

41 Informed consent Documentation of consent discussion how much? where? when? who? Habitual practice Slide 41

42 Informed consent Who should obtain consent? Can this be delegated? other physicians residents and students other health professionals Slide 42

43 Scenario Which of the following statements regarding documentation of the consent process is correct? Slide 43

44 Which is correct? A. Judges generally have great sympathy for busy physicians who fail to maintain adequate medical records B. When there is disagreement between physician and patient over what was said, judges favour physician s account C. A doctor recounting usual practice with respect to a consent discussion will generally be regarded as having as much evidentiary weight as a contemporaneous note D. A signed and witnessed consent form by itself does not constitute evidence of an adequate consent discussion E. Documentation of possible complications must be exhaustive Slide 44

45 Which is correct? A. Judges generally have great sympathy for busy physicians who fail to maintain adequate medical records B. When there is disagreement between physician and patient over what was said, judges favour physician s account C. A doctor recounting usual practice with respect to a consent discussion will generally be regarded as having as much evidentiary weight as a contemporaneous note D. A signed and witnessed consent form by itself does not constitute evidence of an adequate consent discussion E. Documentation of possible complications must be exhaustive Slide 45

46 Scenario A 19-year-old male in the emergency room with complaints of severe headache, neck stiffness and fever has consented to a lumbar puncture. After two uncomfortable and unsuccessful attempts, the patient cries out Stop it Stop it NOW! Slide 46

47 Your most appropriate next step is to: A. Pause, clarify the intent of the patient s request. If consent for further attempts is withdrawn, review the implications of the refusal with the patient B. Pause, infiltrate more local anaesthetic, then try again. The patient s request refers to pain control rather than a desire to abandon the procedure C. Persevere. Restrain patient if necessary. His earlier consent confirms agreement to have this important procedure despite momentary discomfort D. Cease any further attempts as consent has been withdrawn. Manage the clinical problem without the benefit of CSF analysis Slide 47

48 Your most appropriate next step is to: A. Pause, clarify the intent of the patient s request. If consent for further attempts is withdrawn, review the implications of the refusal with the patient B. Pause, infiltrate more local anaesthetic, then try again. The patient s request refers to pain control rather than a desire to abandon the procedure C. Persevere. Restrain patient if necessary. His earlier consent confirms agreement to have this important procedure despite momentary discomfort D. Cease any further attempts as consent has been withdrawn. Manage the clinical problem without the benefit of CSF analysis Slide 48

49 Scenario A patient is undergoing elective surgery. The patient signs a typical hospital consent form and this is witnessed. The form represents the following in terms of documentation of the informed consent discussion Slide 49

50 The consent form represents: A. Solid legal evidence of informed consent B. Must be completed because of federal law related to hospitals C. Is necessary if a provincial payer does an audit of the surgical practice D. Is the most important part of the consent process E. Provides a reminder that consent is necessary and represents some evidence of informed consent Slide 50

51 The consent form represents: A. Solid legal evidence of informed consent B. Must be completed because of federal law related to hospitals C. Is necessary if a provincial payer does an audit of the surgical practice D. Is the most important part of the consent process E. Provides a reminder that consent is necessary and represents some evidence of informed consent Slide 51

52 Scenario A 74 y.o. female with acute respiratory failure is transferred by ambulance from home to the emergency department. She is unable to communicate coherently. There is no advance medical directive and she is unaccompanied by family. Available hospital records include a DNR order during a previous admission for COPD exacerbation. Slide 52

53 Which is the best option? The EP should: A. seek consent from an appropriate substitute decision maker before initiating treatment B. seek a second opinion from a medical specialist before initiating treatment C. withhold aggressive treatment in accord with the prior DNR order D. treat immediately, without consent, as this is a lifethreatening condition E. call the hospital lawyer for advice before proceeding Slide 53

54 Which is the best option? The EP should: A. seek consent from an appropriate substitute decision maker before initiating treatment B. seek a second opinion from a medical specialist before initiating treatment C. withhold aggressive treatment in accord with the prior DNR order D. treat immediately, without consent, as this is a lifethreatening condition E. call the hospital lawyer for advice before proceeding Slide 54

55 Informed consent The anxious patient waiving the right to consent discussion concept of therapeutic privilege Slide 55

56 Ethical consent Treat the patient as if he / she were your best friend and you are telling them all about the treatment Slide 56

57 Informed discharge A 22-month-old male was seen in the ED with diarrhea and vomiting. A diagnosis of gastroenteritis was made and the patient was discharged home with his young, single mother. Over the next 24 hours the vomiting decreased but he experienced increase diarrhea. He died of dehydration. In a subsequent legal action, the mother claimed she had not been informed on when to bring the baby for further medical care. Slide 57

58 The outcome could have been avoided by: A. Admitting all babies with gastroenteritis B. Explaining to the mother the signs and symptoms that would warrant bringing the baby back to the emergency room C. Giving all young mothers a handout explaining gastroenteritis D. Having Home Care follow up with every patient discharged from the emergency department E. Better telehealth advice service Slide 58

59 The outcome could have been avoided by: A. Admitting all babies with gastroenteritis B. Explaining to the mother the signs and symptoms that would warrant bringing the baby back to the emergency room C. Giving all young mothers a handout explaining gastroenteritis D. Having Home Care follow up with every patient discharged from the emergency department E. Better telehealth advice service Slide 59

60 Informed discharge Recent trend Higher expectations on post-treatment instructions Slide 60

61 What is informed discharge? Provide the patient with appropriate care Provide follow-up appointment(s) Disclosure of signs / symptoms indicating that a risk or complication is materializing Enough information to permit patients to react appropriately to post-treatment symptoms Explain how and where to obtain emergency care Slide 61

62 How is informed discharge achieved? Educating a patient to understand when further medical attention is required This is a fine balance between scaring patients about all possible outcomes and giving patients a false sense of security Must take into account individual circumstances of patient Slide 62

63 What about patient responsibility? Law recognizes that patients do have responsibility for their own health In cases of informed discharge, degree of patient responsibility may depend upon the clarity and quality of the discharge instructions Slide 63

64 The use of adjuncts Handouts Instruction sheets Delegation of discharge teaching Slide 64

65 Thank you. Anny Lemire Maureen L. Murphy