APP MALPRATICE ISSUES

Transcription

1 APP MALPRATICE ISSUES Christopher G. Henderson, J.D Melanie Morano, J.D., R.N. Simmons Law Group, P.A. March 4, 2013 LEGAL AND REGULATORY ENVIRONMENT As APPs have become more prominent in the medical community their malpractice exposure has likewise become more prominent. In Mississippi, the scope of practice for APPs has greatly expanded in the last 10 years allowing for a more independent practice, especially for N.P.s in rural areas. N.P.s, PA s and CRNAs now occupy a central role in malpractice litigation. Analysis of Claims by Specialty Adult/Geriatric 52.2% Family Medicine and pediatric 32.1% Obstetrics/Gynecology 9.5% Psychiatric 5.2% Student 1.0% Family Medicine and pediatric has the highest average paid indemnity/most common claim is wrongful death Severity by Clinical Specialty Pediatric/neonatal 4.7% 318,150 Obstetrics/Gynecology 7.0% 193,900 Family Medicine 28.2% 169,227 Psychiatric 4.7% 168,392 Adult/Geriatric 54.9% 146,586 Student 0.5% 60,000 1

2 Distribution by Location Medical Office 42.4% Clinic non-hospital 17.8% Nursing Home 12.2% Prison Health 8.2% Hospital Inpatient 7.2% Emergency Department 5.7% Severity by Location Urgent Care Clinic 0.9% 370,000 Hospital/Inpatient 6.1% 228,219 Non-Hospital Clinic 26.3% 191,546 Medical Office 38.5% 182,263 Emergency Dept. 5.2% 138,028 Hospital/Outpatient 1.9% 120,823 Nursing Home 14.1% 89,510 Prison Health 3.8% 30,969 Claims by Allegation Diagnosis 39.0% Treatment 28.3% Medication 17.7% Patient Assessment 6.4% Monitoring 4.0% LEGAL CONSIDERATIONS IN MALPRACTICE CASES 2

3 WHAT TO DO WHEN A CLAIM IS FILED AGAINST YOU Malpractice Claim Avoidance 1. Contact your employer if applicable. 2. Contact your insurance carrier, if you have a separate malpractice policy. 3. Retain an attorney, if your employer or insurer does not provide one for you. 4. Discuss the case ONLY with your attorney and employer. 5. Assist your attorney as much as possible/ Be proactive 6. Be patient and remember your attorney is on your side. Bedside Manner-Listen to the Patient Patient Examination/Evaluation Diagnostic Tests Diagnosis Referral/Consultation Telemedicine Treatment/Medications Discharge/Follow-up APP/Patient Relationship The APP s relationship with his/her patient is the biggest risk and biggest protection against a malpractice claim Effective communication with your patient is a major claim prevention tool Beckman Study The largest determiner in a patient s decision to file a claim is process of care rather than bad outcomes Patient Relations: Continued Another study conducted in a large medical center determined that there were four issues that caused the majority of claims 1. Perceived unavailability of Practitioner 2. Perceived devaluing of the Patient s or family s views/concerns 3. Poor delivery of medical information 4. Failure to understand Patient s perspective 3

4 Definition: Medical Malpractice The failure of the medical practitioner to exercise that degree of skill and competence of a reasonably prudent, minimally competent healthcare professional under the same or similar circumstances National Standard Medical Malpractice Four Necessary Elements: 1. Duty 2. Breach of Duty 3. Injury 4. Damages Medical Malpractice How is Malpractice Determined 1. Standards of Care 2. Expert Witnesses 3. National Guidelines 4. Consensus Opinions Today s Practice APPs are facing ever increasing demands in their practice A study at a major teaching hospital determined: 1. Over a 9 month period, a medical error was made during the care of more than 50% of patients 2. 18% suffered a serious consequence % sued for medical malpractice 4

5 Today s Practice More than 25% of U.S. adults have experienced a major medical error within the past 2 years Although all do not litigate, 1-4% will file a claim APPs are more and more frequently being named as defendants in cases Increasing responsibilities Increasing number of APPs being utilized National Practitioner Databank Reporting database designed to prevent negligent health care professionals from moving across state lines for practice Administered by Dept of Health and Human Services Information contained: 1. Licensure Malpractice payments Professional memberships Clinical privileges National Practitioner Databank Additional Information Drug enforcement action Medicare/Medicaid exclusions National Practitioner Databank How Does it Work When you apply for a job or privileges, the prospective employer queries the databank You can query your own record to make sure it is accurate ( Hospitals are required to query the data bank every two years for any health care professional employed or on staff; JAAHO:2003 mandates the same standard for long term care facilities and sub-acute care facilities 5

6 National Practitioner Databank You should check your data bank record at least once every 2 years Especially after you have been involved in litigation You can appeal entry and you can have the databank enter any information you want to supplement an entry with, such as an explanation for settlement, etc. THE ART OF DOCUMENTATION The Importance of Complete Documentation It is often said that if it is not charted, it did not happen. Without it, you are subject to a complete blank when trying to recall these things from memory. Open spaces that constitute a blank memory, or perhaps a gap in the record, demand that you consider what you would normally do in such circumstances. This is the standard of practice. The question to be answered is this: What would your normal course of practice be under these circumstances? Critical Elements in Charting Critical Elements in Charting Be knowledgeable about the legal context of malpractice suits in which APPs may be involved. Always evaluate/document as if you are expecting to be sued. CYA. You cannot document too much-never had a case where there was too much documentation Enter appropriate information about the patient s statements, condition and behavior. Document medical evaluations, tests, diagnoses, treatments, care, and any need for follow-up care. Show concrete and accurate evidence for diagnoses and treatment/follow-up plan. Referral/Consultations Be alert to patient care situations that require frequent, in-depth, and detailed recording. Patients with complex heath problems. Patient care situations associated with a greater probability of claims of negligence against an employee. The care of acutely ill patients who require more intense nursing care than is normally necessary. 6

7 Preventive Measures to Decrease Liability Risks High Risk Areas 1. Failure to consider information from Patient and/or family 2. Failure to order appropriate diagnostic tests/imaging. 3. Failure to diagnose. 4. Failure to refer/consult. 5. Failure to properly treat/medications. 6. Failure to properly discharge/follow-up. High risk areas of documentation include the following: Record content is not in accordance with professional or health care facility standards. Record content does not reflect patient needs. Record does not include a description of situations that are unusual or out of the ordinary. Record content over generalizes patient assessments or medical interventions. Record entries are not timely or are chronologically disorganized. Record entries are incomplete or inconsistent. Record entries do not contain appropriate medical orders. Working with Legal Counsel - Your Role in the Case Besides assisting your attorney with the facts of the case, you can be of great assistance in learning about the legal process, and understanding the defenses that will be asserted on your behalf. Always be honest with your attorney, telling him or her everything you can about the incident, potential witnesses, and documentation references that will assist in your defense. Finally, be patient. The average medical malpractice case can last two to three years before going to trial, or settling. 7