Preventing Potential Claims of Negligence What Would You Do Settle or Go to Trial?

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1 Preventing Potential Claims of Negligence What Would You Do Settle or Go to Trial? Ross E. Taubman, DPM PICA President and Chief Medical Officer 2013 APMA YOUNG PHYSICIANS INSTITUTE April PICA Headquarters Franklin, TN

2 Objective To Understand the Components of Decision Making in a Malpractice Case The Medicine The Intangibles The Plaintiff The Defendant Plaintiff s Counsel Defense Counsel Plaintiff Experts Defense Experts Venue WHICH IS MOST IMPORTANT?

3 Case #1: The Facts Patient sees PCP who notes abscess on left fourth toe, missing toenail and black spot on nail bed of same toe Refers patient to DPM. PCP records not reviewed by treating DPM Initial visit: Diagnoses abscess left fourth toe, hallux limitus bilaterally Medical record does not mention black spot on toe, nor does it note absent left fourth toenail Performs I&D under local anesthesia, cultures purulence, empirically initiates Keflex 500mg QID 3

4 Case #1: The Facts Patient returns 10 days later Toe Improved, Culture positive for Staph sensitive to Methacillin No mention of black spot on toe or absence of toenail in medical record Casts patient for custom foot orthoses to treat hallux limitus, patient to follow up when orthoses come in Patient never returns 4

5 Case #1: The Facts (4 Months Later) Patient sees PCP with painful lump in groin PCP refers to general surgeon. Diagnosed with metastatic malignant melanoma (left fourth toe primary) with involvement of liver, spleen and lungs General surgeon refers to oncologist who initiates chemotherapy 5

6 Case #1: The Facts (10 Months Later) Patient DECEASED 6

7 Allegations Practice below the stand of care for failure to diagnose melanoma Practice below the standard of care for failing to biopsy dark spot on toe If biopsy performed, would have had a >50% chance of survival 7

8 The Demand Special Damages (Economic): $3,400,000 General Damages (Non Economic): $9,100,000 Total Demand: $12,500,000 Insured has $1M/$3M Policy Limits 8

9 The Venue Plaintiff friendly venue Experienced plaintiff med mal attorney Widow and Son make believable and articulate witnesses Our Insured is Board Certified, believable and articulate We are able to identify experienced, board certified defense experts(podiatric and oncologic) who will defend our insured Plaintiff s only medical expert is a non board certified podiatrist 9

10 What Would You Do? Settle or Go to Trial? 10

11 The Outcome Defense Verdict 11

12 Case # 2: The Facts 56 Year old Caucasian male presents to DPM with right heel pain PMH admits to alcohol and tobacco usage Insured diagnoses patient with right plantar fasciitis and plantar calcaneal spur 12

13 Case #2: The Facts Insured discusses treatment options. Note states that conservative care should resolve problem, surgery only warranted if conservative care tried and only if symptoms exacerbated Steroid injection given and low dye strap applied 13

14 Case #2: The Facts (One Week Later) Patient returns: No relief of symptoms Insured states patient demands surgery. Medical Record does not reflect this. Scheduled for surgery MIS technique 14

15 Case #2: The Facts (5 Days Later) MIS Plantar fasciotomy and heel spur resection Burr breaks off in foot Attempt to recover burr unsuccessful 15

16 Case #2: The Facts (9 Days Later) Patient complains of pain and nerve damage Insured recommends leaving burr in foot but Medical Record fails to document this Last visit to our insured 16

17 Case #2: The Facts (Sequelae) Over the next 2 years, patient sees another surgeon, neurologists and pain management specialist Diagnosed with retained foreign body, tarsal tunnel syndrome, intractable pain, compression neuropathy, nerve damage, and ultimately CRPS Treatments: Burr removed, nerve blocks, bracing, PT, Lyrica, Elavil, MS Contin, Nerve stimulator implantation 17

18 Allegations Practice below the stand of care for failure to adequately perform conservative care Practice below the stand of care for MIS technique Practice below the stand of care for failure to remove foreign body 18

19 The Demand Special Damages (Economic): $731, 561 General Damages (Non Economic): $600,000 Total Demand: $1,331,561 Insured has $1M/$3M Policy Limits 19

20 The Venue Mixed venue: Neither plaintiff nor defense oriented Experienced plaintiff med mal attorney who is known to be unreasonable in settlements Plaintiff makes believable and sincere witness Our Insured is Board Certified, believable and articulate Plaintiff experts (neurology, orthopedic and podiatric) are credible and articulate Defense experts can defend MIS technique but question lack of conservative care and poor record keeping 20

21 What Would You Do? Settle or Go to Trial? 21

22 The Outcome Settlement $750,000 22

23 Questions? Ross E. Taubman, DPM