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
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
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?
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
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.
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.
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
So you have been sued Resource Document ACEP Medical Legal Committee Authors: Work Group Chair, Tom Syzek, MD, FACEP, Louise Andrew, MD, JD, FACEP, Neil Freund,JD, John Bibb, MD, FACEP, Daniel Sullivan,MD,
Know your rights concerning Medical Malpractice Forward This book explains many of your rights if you are injured by medical malpractice and is not a substitute for good personal legal advice from an attorney
The Canadian Medical Protective Association (CMPA) provides medico-legal protection to more than 60,000 members representing nearly 95 per cent of the doctors licensed to practise medicine in Canada. The
Table of Contents 1. What should I do when the other driver s insurance company contacts me?... 1 2. Who should be paying my medical bills from a car accident injury?... 2 3. What should I do after the
Your Guide to: STAGES OF AN AUTO ACCIDENT CASE Know what to expect during your auto accident case. In Auto Accident Cases, the process of getting recovery can be very frustrating. MOST FRUSTRATION COMES
THE CONSUMER S GUIDE TO CAR ACCIDENT CLAIMS IN NOVA SCOTIA Why Most Nova Scotia Car Accident Victims Don t Receive Fair Compensation John A. McKiggan Arnold Pizzo McKiggan 306-5670 Spring Garden Road Halifax,
Free Legal Consumer Guide Series Brought To You By Meeting All Your Legal Needs for 50 Years 2 What Is Medical Malpractice? HOW TO USE THIS GUIDE If you read this guide, you will discover what you need
CHAPTER THIRTEEN PERSONAL INJURY Contents Introduction Personal Injury Claims Negligence Automobile Accidents Injuries at Your Home and on Your Property Injuries on Others' Property Negligent Infliction
LITIGATING THE AUTO PERSONAL INJURY CASE The Plaintiff s Perspective: From Beginning to End By: DOUGLASS F. NOLAND NOLAND LAW FIRM, LLC 34 WESTWOODS DRIVE LIBERTY, MISSOURI 64068 816-781-5055 / FAX 816-781-5216
Ch24-A04438 9/18/06 1:46 PM Page 257 C H A P T E R 2 4 Medical Malpractice Defenses S. Sandy Sanbar, M.D., Ph.D., J.D. GOLDEN RULES 1. The physician should be knowledgeable of the general defense theories
Understanding New York State Car Accidents Frequently Asked Questions FAQ ABOUT NEW YORK STATE CAR ACCIDENTS 1 ABOUT THIS BOOK This book is a consumer guide for people who have been injured in a car accident
Your Guide to Pursuing a Personal Injury Claim 2 Contents Introduction... 3 Important things that you must do... 3 In The Beginning... 4 Mitigating your loss... 4 Time limits... 4 Who can claim?... 4 Whose
What To Do If A Lawyer Contacts You By Lustbader Law Firm This article is written by David Lustbader of Livingston, New Jersey. It grew out of a discussion during a Medical Protective Risk Management Seminar
Medical Malpractice Law in the United States Prepared for the Kaiser Family Foundation by: Peter P. Budetti, M.D., J.D. Edward E. and Helen T. Bartlett Foundation Professor of Public Health Chair, Department
SPECIAL REPORT Five Deadly Sins That Can Wreck Your Injury Claim (Avoid them and you may have a shot at winning) The Law Office of Gerald M. Oginski, L.L.C. Attorney At Law 150 Great Neck Road, Suite 304
SPECIAL REPORT CAMP INJURIES 7 THINGS YOU ABSOLUTELY NEED TO KNOW WHEN AN INJURY HAPPENS AT CAMP The Law Office of Gerald M. Oginski, L.L.C. Attorney At Law 150 Great Neck Road, Suite 304 Great Neck, New
Protecting Your Family From Accidents Practical advice on insurance choices, the insurance claim process and Personal Injury and Wrongful Death lawsuits, including: A Lawyer s Guide To Purchasing Car Insurance
THE HOGG & GARTLAN LAW FIRM PERSONAL INJURY AND ACCIDENT REPORT BY AARON GARTLAN 0 No representation is made that the quality of legal services to be performed is greater than the quality of legal services
TENNESSEE PATTERN JURY INSTRUCTIONS BY KEVIN A. SNIDER, J.D., C.F.E. Attorney at Law and Certified Fraud Examiner -2006 EDITION- Produced and Distributed by: ANDREW S ENTERPRISES TENNESSEE PATTERN JURY
Your rights if you have been injured as a result of treatment If you have had medical treatment which went wrong or caused you injury, you are entitled to full explanations and you may be able to get compensation
Attorney s Truths MAMMOGAPHY AND MALPACTICE Advocates in an adversarial system epresents clients zealously Seek only facts that support their clients or positions Ignore or discard facts that do not Mammographersand
Medical Malpractice Law For the Florida Neurologist Mark G. Morgan, M.D., J.D. MD-JD Consult, P.A. Tampa, FL www.mdjdconsult.com 1-866-455-1559 Scope of the Problem Legislative findings and intent. F.S.
MALPRACTICE RISKS WHERE ARE THEY? Charlotte A. Lacroix DVM, JD Whitehouse, New Jersey Tel: 908-534-2065 www.veterinarybusinessadvisors.com In the law of professional negligence, the standard of care is
WHAT HAPPENS IN A PERSONAL INJURY CASE From Negotiating With Insurance Companies To Trial By Michael A. Schafer, Attorney at Law 440 South Seventh Street, Ste. 200 Louisville, Kentucky 40203 (502) 584-9511
APPENDIX II. INTERROGATORY FORMS Form A. Uniform Interrogatories to be Answered by Plaintiff in All Personal Injury Cases (Except Medical Malpractice Cases): Superior Court All questions must be answered