House Officer Introduction to Medical Malpractice Issues. Presented by The Louisiana Attorney General s Office

Transcription

1 Huse Officer Intrductin t Medical Malpractice Issues Presented by The Luisiana Attrney General s Office

2 What are my chances f being sued?

3 Gyneclgy, Allergy and Dermatlgy Once every 11 years Family Practice, Pediatrics, Cardilgy (nn-surgical) Once every 5.4 years Urlgy, Radilgy, Invasive Cardilgy, Anesthesilgy Once every 5.1 years Internal Medicine, Neurlgy Once every 4 years Family Practice, Pediatrics (sme minr surgery) Once every 3.5 years

4 Emergency Medicine Once every 2.9 years General Surgery, Plastic Surgery Once every 1.9 years Thracic Surgery, Vascular Surgery, Orthpedic Surgery Once every 1.4 years OB/GYN Surgery, Cardiac and Cardivascular Surgery Once every 1.4 years Neursurgery Once every.7 years

5 State health care prvider means a persn acting in a prfessinal capacity, prviding health care services, by r n behalf f the state pursuant t an assignment t render such health care services fr, r n behalf f the state withut regard t where the services are perfrmed, whether r nt he/she is paid fr the services.

6 1) All wrk dne by yu at a State facility. 2) All wrk dne by yu at a nn-state facility perfrmed as part f yur fficial training. Des nt apply t private mnlighting!

7 Medical Malpractice Trt Refrm in General Medical Malpractice statutes were enacted in 1986 t alleviate crisis in the medical cmmunity Different schemes applicable t state and private healthcare prviders Bth prvide fr pre-trial peer review f claims in a medical review panel Bth cap general damages at $500,000 per incident f malpractice

8 Medical Malpractice Key Elements f Medical Malpractice Law Pre-trial medical review panel fr all patients, except prisners Medical Review Panel Prcess Claimant, either patient r their representative, files a claim with the Cmmissiner f Administratin r Patient s Cmpensatin Fund (PCF) and pays $100 fee per named defendant

9 Medical Malpractice Medical Review Panel Prcess (cnt.) Claim must be filed with Cmmissiner f Administratin within ne (1) year f date f ccurrence f alleged malpractice, but in n case can the claim be filed mre than three (3) years after date f the incident. After claim is made and $100 fee is paid, the matter is referred t the Office f Risk Management (ORM) At that time, ORM cnsults the Attrney General, wh appints an attrney t represent the hspital and/r physician(s) Yu will get a letter frm an Assistant Attrney General r Special Assistant Attrney General. DO NOT IGNORE IT! The attrney will meet with yu and discuss the facts f the case

10 Office f the Attrney General State f Luisiana DEPARTMENT OF JUSTICE LITIGATION DIVISION Shreveprt Marshall Street, Suite 777 TEL: (318) FAX: (318) Writer s Direct Dial: (318) Dr. Department f LSU Health Sciences Center P. O. Bx Shreveprt, LA RE: NAME OF CASE MRP **MR*** ORM N. ************* Our File N. S-**** Dear Dr. I have been assigned t represent Luisiana Health Sciences Center in Shreveprt, yu and Dr. with regard t the defense f the abve captined medical malpractice actin. Enclsed is a cpy f the malpractice cmplaint. Als enclsed is the related perative reprt and discharge summary I believe it imprtant that I speak with yu as sn as pssible abut this case. Please call my paralegal, Eileen Byrd, at (318) t set up a mutually cnvenient time fr me t meet with yu. Please als bring with yu t the appintment a cpy f any recrds n [NAME OF PATIENT] that are maintained in the clinic chart. Because the case is nw in litigatin, I respectfully request that yu nt discuss it with anyne utside f my presence. I appreciate yur cperatin and attentin in this matter. Very truly yurs, Assistant Attrney General

11 Medical Malpractice What des the panel d? The panel reviews written evidence submitted by the parties It can include depsitins, written interrgatries, r statements Smetimes yur attrney will have yu prepare a statement even if yu are nt named. This is an invaluable piece f evidence

12 Psitin Paper

13 Medical Malpractice Wh is n the panel? Cnsists f three healthcare prviders and ne nn-vting attrney chairman Attrney chairman is appinted by agreement f the plaintiff r claimant s attrney and the defense attrney If hspital is nly named defendant, all panelists must be physicians f the same specialty as the department alleged t be negligent If a physician is named in additin t the hspital, then all panelists must be a physician f the same specialty Other healthcare prviders like nurses can be n the panel, but nly when the issue is ne f nursing negligence (i.e. failure t turn patient r timely administer medicatin)

14 Medical Malpractice The panel pinin The evidence des nt supprt the cnclusin that the healthcare prvider failed t cmply with the standard f care (i.e. healthcare prvider did nt d anything inapprpriate) The evidence supprts the cnclusin that the healthcare prvider failed t cmply with the standard f care (i.e. healthcare prvider did smething inapprpriate) If this is the pinin, the panel then rules n whether the breach in the standard f care caused the damage as claimed There is a material issue f fact, nt requiring expert pinin, bearing n the questin f liability

15 Medical Malpractice The panel issues an pinin This is nn-binding, meaning that even if the panel finds n breach in the standard f care, the claimant is still allwed t file a lawsuit The lawsuit can be filed within 90 days + whatever time the plaintiff had left t file his initial cmplaint Mst lawsuits against LSUHSC-S are filed in the First Judicial District Curt (Cadd Parish) The panel s pinin is allwed t be used as evidence if the case prceeds past the panel

16 Medical Malpractice

17 Medical Malpractice

18 Dictatin Medical Recrd Issues Please dictate anything unusual in perative reprts and/r discharge summaries Smetimes, ddities matter later that did nt seem imprtant at the time f the surgery D nt attempt t alter, destry r hide medical recrds D nt just in medical recrds D nt expressly r implicitly infer fault r inapprpriate actin by anther physician in the medical recrd r in verbal r written cmmunicatins with the patient r family members

19 The Medical Depsitin Yu can cntrl depsitin damage by fllwing a few cmmn sense rules: Tell the Truth Think befre yu speak Wait at least five secnds befre beginning t answer the questin. Answer nly the questin asked. The examiner is entitled t an answer t the questin he asks, but nly t that questin.

20 D nt vlunteer infrmatin. Yu are nt there t educate the examiner. D n answer a questin yu d nt understand. D nt help the examiner by asking, D yu mean X r d yu mean Y? The examiner will then ask yu abut X and Y Talk in full, cmplete sentences. Beware f questins with duble negatives in them. Yu nly knw what yu have seen r heard. Questins are ften phrased, D yu knw? A questin n depsitin may legitimately call fr smething yu d nt knw, but it must be phrased. There is a difference between a questin that asks D yu knw? and a questin that asks whether yu have any infrmatin bearing n a particular subject.

21 D nt guess. If yu d nt knw r cannt recall smething, say s. Be as specific r as vague as yur memry allws, but d nt be put int a psitin cntrary t yur true recllectin. D nt explain yur thught prcesses as t hw yu reached the answer t a questin. When testifying abut cnversatins, make it clear whether yu are paraphrasing r quting directly. In answering questins calling fr a cmplicated series f events r extensive cnversatins, summarize where pssible. A gd examiner will ask fr all the details. Hwever, he/she may accept yur summary and this is much better.

22 Never characterize yur wn testimny. Cmments such as In all candr, Hnestly r I m ding the best I can, shuld be avided. Avid all adjectives and superlatives. Remarks such as I never r I always have a tendency f cming back t haunt!

23 D nt testify as t what ther peple knw unless yu are specifically asked fr such a statement. D nt testify as t yur state f mind unless specifically asked. In ther wrds, if the questin is Did yu read that dcument? the answer is Yes. D nt answer Yes, and I believe every wrd f it.

24 D nt tip yur hand by telling the examiner f dcuments he des nt knw exist. If the infrmatin is in a dcument that is nt an exhibit at the depsitin, answer the questin if yu can recall the answer. If yu cannt answer the withut lking at a dcument that is nt marked as an exhibit, yu may simply state yu d nt recall. If yu can answer the questin, it shuld be dne. Frequently after a witness answers he des nt recall a fact the examiner believes he shuld knw, the examiner will usually ask if there is a dcument that can refresh his recllectin.

25 D nt let the examiner put wrds in yur muth. D nt accept his characterizatin f time, distance, events, etc. Rephrase the questin int a sentence f yur wn, using yur wn wrds. D nt answer a cmpund questin unless yu are certain that yu have all parts f it in yur mind. If the questin is t cmplex t be held in yur mind, then it is t cmplex and ambiguus t answer.

26 Pay particular attentin t the intrductry clauses preceding the guts f a questin. Leading questins are ften preceded by statements that are either half true r cntain facts yu d nt knw t be true. D nt let the examiner put yu in a psitin f adpting these half-truths r unknwn facts n which he will then base further questins. If yu are interrupted, let the lawyer finish, but curteusly, state that yu were interrupted, that yu had nt finished yur prir answer t the questin and then answer the questin.

27 If yu find yurself caught in an incnsistency, DO NOT cllapse!!! What will happen next will depend n what questins are asked f yu next. If asked, state yur present recllectin. State the reasn fr the incnsistency nly if yu are asked. Rehabilitatin is dne at trial, r if apprpriate, later in the depsitin when yur attrney has an pprtunity t ask yu questins. D nt adpt an examiner s summary as yur prir testimny.

28 If yu are finished with an answer and it is cmplete and truthful, remain quiet and d nt expand n it. D nt add t yur answer just because the examiner lks at yu expectantly. If the examiner asks yu if that is all yu recllect, say Yes if that is the case. D nt agree t supply any infrmatin r dcuments requested by the examiner. If an bjectin is made t a questin, listen t the bjectin carefully. By listening t the bjectin, yu may learn smething abut the questin and hw it shuld be handled frm the bjectin. NEVER express anger r argue with the examiner.

29 D nt expect t testify withut the ther side scring pints. Avid any attempt at levity. Avid even the mildest bscenity and avid abslutely any ethnic slurs r references tht culd be cnsidered dergatry. There is n such thing as ff the recrd. Yu shuld be prepared t answer questins n any cnversatin yu ve had with anyne in the depsitin rm. If the examiner appears ttally cnfused abut yur prfessin and its technical aspects, DO NOT educate him.

30 If yu d nt remember smething, say s. If yu are asked abut a dcument, read it befre testifying. D nt make cmments abut the dcument except in respnse t the questin asked. D nt vlunteer any additinal infrmatin. If yu recall smething during yur testimny, but have nt yet discussed it with yur attrney, hld that infrmatin, if pssible, until given an pprtunity t g ver it with yur attrney. Use all recesses t discuss matters, privately, with yur attrney.

31 And remember.... Every witness makes mistakes n a depsitin. D nt becme upset if yu find yu have made ne. If yu realize yu have made a mistake during the depsitin, it shuld be crrected as sn as it is realized. Mistakes yu remember after the depsitin is ver may be crrected at the time yu sign the transcript.

32 Questins?