Medical Malpractice: What You Don t Know Can Hurt You

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1 Medical Malpractice: What You Don t Know Can Hurt You O. William Brown, MD, JD Chief, Division of Vascular Surgery William Beaumont Hospital Interim Chief, Division of Vascular Surgery Wayne State University School of Medicine Clinical Professor of Surgery Wayne State University School of Medicine Adjunct Professor of Law Michigan State University College of Law

2

3 Components of malpractice suit Physician-Patient Relationship Breach of the Standard of Care Proximate Cause Damages

4 Physician Patient Relationship

5 Physician Patient Relationship Direct patient contact Phone call Social setting Side-walk consult? Payment unimportant

6 Guest at party asks vascular surgeon if 3 month history of leg swelling is significant Surgeon states swelling unlikely to be significant but suggests that individual see her medical physician Individual does not see her medical physician and suffers a PE one week later and dies

7 Was a physician patient relationship established?

8 The law is what the judge and the jury say it is

9 How Terminate Relationship Get fired Physician withdraws from care after giving sufficient notice to patient Resolution of patients medical problem

10 Standard of Care

11 Expert witness Breach of Duty (Standard of Care) Defendant s admission Res ipsa loquitor (sponge in the abdomen) Plaintiff is a medical expert Common knowledge (radiation of a pregnant female)

12 The existence of a medical injury shall not create any

13 The failure of a health care provider to order, perform,

14 Standard of Care National standard Locality rule only for hospital equipment Standard of care is different for a resident or fellow Standard of care is the same for a general surgeon and a vascular surgeon performing a vascular procedure

15 Proximate Cause Patient dies on first post operative night following an open AAA resection At autopsy, retained sponge is found No recovery for retained sponge since it did not cause the patient s death

16 Informed Consent

17 Informed Consent Diagnosis Treatment plan Risks and benefits Treatment alternatives Prognosis (with and without treatment)

18 Informed Consent Must tell patient anything that could affect patients decision whether or not to proceed with treatment

19 Medical Malpractice Informed consent is NOT the same thing as a consent form Obtaining informed consent is a non delegable duty

20 Cases Johnson v Kokemoor (individual MD experience and results) Open versus Endovascular -Standard of Care for isolated 2cm common iliac stenosis -Standard of Care for AAA in 75 yr. Old male with perfect anatomy for endograft and history of CAD

21 Medical Records Anything written in preparation for litigation is privileged. Can not give records or discuss patient s condition with anyone unless you have patient s written permission. (This includes patient s attorney or another defense attorney)

22 Medical Records The Paper Trail If you don t write it down, it didn t happen Take the time to write down your thought process, not just your conclusions

23 Expert Witness This is the single greatest problem in medical malpractice today.

24 Expert witness in Florida Must specialize in the same specialty as defendant or Specialize in similar specialty treating similar patients However last line of expert witness statute states:

25 This section does not limit the power of the trial court

26 Medical Malpractice

27 Medical Malpractice Are Vascular Surgeons who have completed the certifying process through the American Board of Surgery Board Certified?

28 Medical Malpractice Are Vascular Surgeons who have completed the certifying process through the American Board of Surgery Board Certified?

29 Medical Malpractice Are Vascular Surgeons who have completed the certifying process through the American Board of Surgery Board Certified? Yes

30 Malpractice Defenses Reasonably prudent physician Error in judgment Assumption of the risk Contributory and Comparative negligence

31 Good Samaritan Acts Roadside In hospital (Grodin v. Beaumont) In OR

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33 Joint and Several Liability Hospital Sponsored Insurance Joint defense with the hospital Pitfalls

34 Statute of Limitations Fraudulent concealment Wrongful death

35 Conduct of a Medical Malpractice Suit Complaint (Notice of Intent) Discovery -interrogatories -discovery depositions

36 Discovery deposition Nail down defendant s opinions Witness evaluation

37 Relevant Anything that tends to make a material fact more or less likely to be true.

38 Witness investigation Google search Curriculum vitae Past depositions Past legal problems (medical and non medical)

39 Attorney: Now doctor, isn t it true that when a person dies in his sleep, he doesn t know about it until the next morning?

40

41 Attorney: So the date of conception (of the baby) was August 8 th?

42 Attorney: So the date of conception (of Witness: Yes. the baby) was August 8 th?

43 Attorney: So the date of conception (of the baby) was August 8 th? Witness: Yes. Attorney: And what were you doing at that

44 Attorney: So the date of conception (of the baby) was August 8 th? Witness: Yes. Attorney: And what were you doing at that time

45

46 Attorney: You were not shot in the fracas?

47 Attorney: You were not shot in the fracas? Witness: No, I was shot midway between

48 Attorney: You were not shot in the fracas? Witness: No, I was shot midway between the naval and the fracas.

49

50 Attorney: Are you qualified to give a urine specimen?

51 Attorney: Are you qualified to give a urine specimen? Witness: I have been since early

52 Attorney: Are you qualified to give a urine specimen? Witness: I have been since early childhood.

53

54 Attorney: Doctor, how many autopsies have you performed on dead

55 Attorney: Doctor, how many autopsies have you performed on dead people?

56 Attorney: Doctor, how many autopsies have you performed on dead people? Witness: All of my autopsies are

57 Attorney: Doctor, how many autopsies have you performed on dead people? Witness: All of my autopsies are performed on dead people.

58 Attorney: Doctor, before you performed the autopsy, did you check for a pulse? Witness: No Attorney: Did you check for blood pressure? Witness: No

59 Attorney: Did you check for breathing? Witness: No Attorney: So, it is possible that the patient was alive when you began the autopsy? Witness: No

60 Attorney: How can you be so sure, Doctor? Witness: Because his brain was sitting on my desk in a jar. Attorney: But could the patient have still been alive nevertheless?

61 Witness: It is possible that he could have been alive and practicing law somewhere.

62 Deposition Testimony Maintain composure Answer only direct questions Answer only the question that is asked Never try to educate the plaintiff s attorney Be prepared

63 Lack of concentration can be fatal

64 Case evaluation Conduct of Medical Malpractice Suit Settlement conference Trial

65 Perhaps the witness would like to reconsider his answer to my question.

66 Medical Malpractice Can I sue the plaintiff s attorney for filing a frivolous law suit?

67 Medical Malpractice In general the answer is No. Exceptions 1. Malicious prosecution 2. Law suits filed in violation of court rules.

68 Medical Malpractice

69 Medical Malpractice

70 Medical Malpractice

71 Medical Malpractice If I settle the case, am I admitting that I committed malpractice?

72 Medical Malpractice If I settle the case, am I admitting that I committed malpractice?

73 Medical Malpractice If I settle the case, am I admitting that I committed malpractice? NO

74 Settling a Case (Advantages) No loss of time going to trial No risk of excess personal liability No admission of liability No finding of liability

75 Medical Malpractice Best to Avoid Being Sued

76 Medical Malpractice Can t Avoid Being Sued

77 Medical Malpractice Know how to avoid obvious risk Understand basic legal concepts of a medical malpractice suit Know when to hold em and when to fold em and

78 Medical Malpractice Document Document Document Document Document Document Document Document Document

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