Objectives. Why do People Sue? Understanding Medical Malpractice 3/8/2015. Discuss reasons why people sue

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1 Understanding Medical Malpractice Michelle DiBaise, DHSc, PA-C Objectives Discuss reasons why people sue Understand the 4 elements of medical malpractice Define standard of care Contrast claim vs. litigation Contrast settlement vs. trial Discuss ways to minimize chances of being sued Why do People Sue? Anger: didn t listen to me Variations: didn t answer questions wouldn t return my phone calls didn t explain Want answers Hold someone accountable for what happened (doctor should lose license; don t want this to happen to someone else) Money Bad outcome 1

2 Elements of Medical Malpractice Duty: Health care provider (HCP) owes a duty to the patient Breach of duty: HCP fails to act by the standard of care, and therefore, breaches the duty owed to the patient Damages: HCP s breach actually causes physical, emotional, economic or other damage Causation: the HCP s breach of duty is the proximate cause of some harm The 4 Ds of Medical Malpractice Duty Dereliction of duty Direct causation Damages Duty There must be a recognized HCP-patient relationship in order for there to be a duty owed the patient If there is a relationship, then the HCP has the duty to meet the standard of care (SOC) 2

3 Standard of Care What a reasonably competent, prudent HCP would do in the same or similar circumstances having the same or similar information Same or similar background Same or similar location Breach of Duty HCP failed to meet the SOC Usually requires expert testimony from an equally trained HCP to support that the SOC was not met Written affidavit or statement Deposition and/or trial testimony Qualifications of expert vary by state 3

4 Causation Probably the most challenging aspect of medical malpractice Prove that the breach of duty/failure to meet SOC was the proximate cause of injury Complications or events as a natural course of a disease vs. failure to meet SOC The but.for question: But for the actions of the HCP, would this have occurred? Informed Consent A medical practitioner may be legally liable if a patient does not give "informed consent" to a medical procedure that results in a harm to the patient, even if the procedure is performed properly. Damages The plaintiff may be awarded: Compensatory damages Punitive damages 4

5 Damages Compensatory: May include economic damages: Cost of medical care (past and future) Lost wages or earning capacity May include non economic damages: Physical injury, disfigurement Emotional: pain and suffering Punitive: wanton and reckless conduct Damages Punitive: wanton and reckless conduct Only awarded if found guilty of malicious or willful misconduct Form of punishment Compensation in excess of actual damages Medical Error Without Harm If the patient is not harmed by the provider's error, the patient cannot recover damages as the result of the error. Unless you've been harmed, there's no medical malpractice case. 5

6 a malpractice case The plaintiff: the patient or a legally designated person who acts on the patient's behalf The defendant: the party who is being sued doctor, nurse, PA The prevailing party - this is the party who wins the case The losing party - the party who loses the case The fact-finder - the judge or jury a malpractice case Alleged malpractice event occurs The patient or patient s family/estate contacts plaintiff lawyer Medical records are subpoenaed (usually 1 st indication a malpractice case is possible) Plaintiff s lawyer hires experts to review the records and help determine if standard of care was violated a malpractice case If plaintiff s lawyer thinks the case is promising, the case is filed and all the defendants are notified by the court Depositions are taken of all involved parties and experts Negotiations for settlement are attempted If settlement attempt is unsuccessful, the case goes to trial 6

7 Settlement vs. Trial Settlement = financial compensation 90% of claims and suits are resolved in the litigation process and never go to trial Often a business decision by the insurance carrier to settle a claim Some states have mandatory mediation in hopes of avoiding costly litigation Usually involves all parties reaching an agreement which is memorialized in a legal settlement document 7

8 Lawsuit Statistics Nearly 63% of cases brought are dropped or dismissed with no payout to the plaintiff About 30% of cases brought are settled with a payout to the plaintiff 5.4% of cases brought proceed to trial and result in a verdict for the defendant and no payout 1.3% of cases brought to trial result in a verdict for the plaintiff Lawsuit Statistics Malpractice claims originate more than twice as often in hospitals as compared to ambulatory settings Within hospitals, over 1/3 of cases arise in OR setting Other high risk settings are obstetrics and emergency department Danger Zone for PAs Not consulting with supervising physician and/or failure to document physician s involvement in patient s care Not referring to a specialist, or not referring in a timely manner Not complying with state regulations 8

9 Effects of Malpractice Suits on Providers Depression Professional dissatisfaction Emotional exhaustion Career burnout Ways to Minimize Your Chance of Being Sued Be nice Be professional Listen Know what you don t know Involve your supervising physician Know the red flags for the discipline in which you practice and be cautious Document, document, document!! 17 year old girl died 15 days after receiving a heart and doublelung transplant The patient was blood type O, and received organs from someone that was blood type A The hospital hid the mistake for 11 days, and then went public looking for another donor The patient received a second transplant two weeks after the first one, but was declared brain dead and taken off life support Her mother believes that she was weaned off her medication so she would seemingly pass away naturally 9

10 Your patient who you have seen for wellness physicals in the past calls with a new complaint of back pain after a heavy weight lifting workout The patient states that heat, ice, rest and ibuprofen hasn t helped and it has been two days He cannot sleep and asks for narcotic pain pills The PA calls in a prescription for 20 Percocet to the local pharmacy Twin babies mistakenly given a dosage of a bloodthinning medication heparin at a thousand times the dosage used for infants The babies did fine despite the error and were released The hospital admitted the error to the parents The PA treats a 23 year old male in the clinic with a severe sore throat, fever, malaise, and abdominal discomfort for the past week PE is normal except cervical lymphadenopathy The rapid strep test and monospot are negative Throat culture and CBC are pending Patient advised to rest and go to the ED if his condition worsens Told the clinic will call him with lab tests During the night the patient suffers a severe asthma attack and ends up hospitalized on a ventalator 10

11 During a routine dental exam, the dentist notices a a large lump on the left side of the patient s jaw on x-ray After undergoing further examinations, she is told she had 3-6 months to live, but is she could possibly get an extra three months if they removed the left side of her chin, right up to her ear, and replaced it with her fibula Desperate to spend more time with her 10 and 12 year old sons, she has the surgery The lump is removed, and although slightly disfigured, she is grateful to have extra time with her sons Three months later, she is told she is cancer free But she is informed she had in fact never had cancer at all. There had been a mix up in the lab. Malpractice Insurance A product designed to protect the practitioner from the financial consequences of a malpractice judgment or settlement Obvious benefits to the individual practitioner Also benefits others associated with the practitioner, thus it is often offered as a benefit or required as part of the credentialing process Types of malpractice insurance Claims-Made Extended Reporting Endorsement (tail) Occurrence 11

12 Claims-Made Malpractice Insurance Only covers an incident which OCCURED and was REPORTED to the insurance company while the policy is in effect. Most common coverage that is provided by the employer (because it is the least expensive) Extended Reporting Endorsement (tail) Malpractice Insurance Allows for coverage of a claim reported after the termination of the original claims-made policy. The incident must have occurred while the original claims-made policy was active. Often purchased when practitioner leaves a practice. Occurrence Malpractice Insurance Covers an incident which OCCURED while the policy is in effect, regardless of the time the incident was reported to the insurance company. Basically it is a combined claims-made and tail insurance policy. Typical product a practitioner would purchase if he/she were buying their own coverage. 12

13 Malpractice Rates Several factors influence the premium rates Specialty Geographical practice location Additional high risk practice characteristics (OB patients, performs surgery) Malpractice and licensure history of the provider Coverage often begins at $100K/$300K $1M/$3M is the most common coverage Patient provided propofol in the clinic to reduce a dislocated kneecap While the doctor and nurse were present for the whole procedure, the patient stopped breathing and was unable to be resuscitated A 65 y/o female with chronic hypertension and hyperlipidemia is seen for a routine visit Routine lab monitoring was up to date, and the patient s vital signs and lab values were within normal limits The clinic notes document no changes in symptoms or exam findings and assesses the patient to be stable, with a plan to return in six months One week later the patient suffers a fatal MI at home 13

14 A 42 year old female falls while skiing and hit her head She does not believe she lost consciousness There is a small hematoma on the scalp, MSE and Neuro exam are normal The PA presents the patient to the supervising physician who examined her and decided to send her home The family calls the EMS when the patient starts acting funny CT scan shows a massive cerebral bleed, and the patient subsequently dies after being airlifted to a regional medical center Is this malpractice? A patient presents with sore throat and fever with a negative rapid strep and monospot The patient is informed the sore throat is probably a virus and instructed to rest, drink fluids, and utilize acetaminophen for fever The sore throat worsens and the next night the patient goes to the ED where the rapid strep is positive. The patient gets antibiotics and improves without sequelae Questions? 14