1030 1050 Physician Liability JR Garcia FINAL.pptx

medical malpractice

1. The Provider: Medical Errors, Negligence, Litigation and risk reduction strategies Joel R. Garcia, MD FACC Chief Quality Officer Orlando Health Heart Institute

2. 2 Disclaimer This lecture does not, in any way, constitute legal advice or the practice of law and is not intended to replace legal counsel.

3. 3 Establishing the “Need to Know” Knowledge is empowering Move from “ fear-victim” mode -to- “ proactive-preventive” mode

4. 4 Anatomy of a Medical Malpractice Cause of Action A form of negligence Liability exists whether actions were intentional or unintentional Negligence results when the provider’s conduct falls below the standard of care established to protect the patient from an unreasonable risk of harm

5. 5 Four Elements We Need to Know Duty Breach of Duty Actual and proximate causation Injury

6. 6 DUTY To provide a standard of care, that other reasonably prudent providers (MD’s, NP’s., PA’s) in the same set of circumstances, would provide

7. 7 DUTY Standard of Care Considerations Medical Act of your State Board of Medicine defining your scope of practice National treatment guidelines Institutional treatment protocol/guidelines Expert testimony

8. 8 BREACH OF DUTY A deviation from the standard of care An “expert witness” may be deposed As a board certified provider (MD) , national standards will be used, in part, as the benchmark of the acceptable standard of care

9. 9 ACTUAL AND PROXIMATE CAUSATION The analysis of the actual causation element involves the “but for” test But for the provider’s action, injury would not have occurred Foreseeability – the injuries were the result of the provider's action and the injuries were foreseeable before the injury occurred

10. ACTUAL AND PROXIMATE CAUSATION A patient came to a medical office for a H+P. A NP took the history and noted that there was a remote history of ulcer with no recent complaints. The patient came back later complaining of back pain. A physician read the NP’s history and initiated aspirin therapy. The patient developed a GI bleed. The patient sued the NP for failing to diagnose an ulcer and sued the physician for failing to order an endoscopy before starting the patient on aspirin. The court found for the NP and the physician. The court found that the patient had failed to prove a connection between the patient’s GI bleed and failure to diagnose the ulcer in order to order an endoscopy earlier. The plaintiff failed to prove actual and proximate causation. 10

11. 11 HARM Injury must be proven By presentation of: Medical bills Expert testimony Direct evidence of pain and suffering

12. 12 Systematic Approach to Primary Prevention of Malpractice Incorporate a review of the elements of medical malpractice into each encounter Reflexive process of thinking

13. Medical Errors, Negligence, and Litigation Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

14. Accidental Deaths in the U.S.

15. Definitions Error Failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e. error of planning) Adverse Event (AE) An injury caused by medical management rather than the underlying condition of the patient Preventable Adverse Event An adverse event attributable to an error

16. Relationship of Medical Errors to Adverse Events Accidental errors Medical Errors Preventable AEs

17. Epidemiology of Medical Errors California Medical Insurance Feasibility Study (1974) 20,864 hospital admissions 4.65 injuries per 100 hospitalizations Harvard Medical Practice Study (1984) 30,121 hospital admissions in NY state Reported adverse events (AE’s) 3.7% of admissions had an AE

18. Harvard Medical Practice Study

19. Quality in Australian Health Care Study Reviewed 14,179 admissions in 1995 16.6% of admissions had an AE’s Permanent disability 13.7% Death 4.9% 51% of events preventable Source – Wilson, 1995

20. To Err is Human IOM releases report To Err is Human (2000) Estimates 44,000 to 98,000 unnecessary deaths each year due to medical error Estimated 1,000,000 excess injuries due to medical error Numbers based on the MPS and extrapolated to the general population

21. Deaths due to Medical Error 44,000 to 98,000 unnecessary deaths each year More Americans are killed in US hospitals every 6 months than died in the entire Vietnam War Death rate equivalent to three “jumbo” jet crashed every two days

22. Where do these numbers come from and why might they be overestimated Methods Physician implicit judgment Causality of death difficult Kappa statistics low Overcoming these shortcomings Utilizing more reviewers Requiring greater agreement Requiring assessment of overall prognosis

23. Views of the Public on Medical Errors Percentage of adults experiencing an error Medication or medical error 22% Mistake at the physician’s office or hospital 10% Wrong medication or dose 16% Source- The Commonwealth Fund, 2001

24. Views of Practicing Physicians and the Public on Medical Errors Response Physicians (N = 831) Public (N = 1207) P Value All Respondents percent Error made in own or family member’s care 35 42 <0.001 Health consequences: (Serious) 18 24 <0.001 Respondents reporting an error Parties who had “a lot” of responsibility for the error: (Doctors) 70 81 <0.001 Health professional told respondent an error had been made 31 30 <0.001 Possible solutions to the problem of medical errors Increasing lawsuits for malpractice 1 23 <0.001 Hospital reports of serious medical errors should be: Confidential 86 34 <0.001 Made public 14 62 <0.001 Source- Blendon , 2002

25. Disposition of Claims According to the Rating of the Plaintiff's Injury and Degree of Disability Rating No. of Closed Cases Settled for Plaintiff Mean Settlement no (%) $ Type of injury No adverse event 24 10 (42) 28,760 Adverse event 13 6 (46) 98,192 Negligent adverse event 9 5 (56) 66,944 Disability None 24 10 (42) 28,760 Temporary 14 4 (29) 38,857 Permanent 8 7 (88) 201,250 All claims 46 21 (46) 55,853 Source – Brennan, 1996

26. 1000 280 36 All Injuries All Negligent Injuries Files a Claim 13% of Negligent Injuries Results in a Claim

27. Negligent Medical Injuries Sources- Mills et al. (1977), Brennan et al. (1991), IOM (1999). All Hospitalizations Negligent Injuries (1-2%)

28. Negligent Injuries that Did Not Result in a Claim 27,179 adverse events due to negligence 26,764 with no malpractice claim (98%) 415 malpractice claims (2%) 14,180 with strong evidence of negligence 12,858 with disability 7462 with disability < 6 mo (58%) 5396 with disability ≥ 6 mo (42%) Source – Localio, 1991

29. Medical Errors 42% of public report a medical error 66% reported serious consequences such as severe pain, substantial loss of time at work or school, disability or even death Only 6% had sued

30. Why is medicine so susceptible? Lack of awareness to the problem “Culture of Silence” Blame and shame mentality System constraints Staffing problems Fatigue Knowledge requirements Communication and continuity of care

31. The State of Medical Malpractice “Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care” Source – Localio, 1991

32. Medical Errors, Negligence, and Litigation Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

33. Reasons Why People Sue Their Doctors Advised to sue by influential other 32 Needed money 24 Believed there was a cover-up 24 Child would have no future 23 Needed information 20 Wanted revenge, license 19 Percent Expressing Concern Source - Hickson, 1992

34. Malpractice Risk Malpractice activity is disproportionate among physicians 75% - 85% of awards, settlement costs over a 5-year period made on behalf of 1.8% of internists 6.0% of obstetricians 8.0% of surgeons Source- Sloan, 1989, Bovbjerg , 1994

35. Malpractice Activity and Patient Complaints Physician Characteristic Total Physicians (N = 645) Mean Number of Complaints Surgeons (N = 219) No lawsuits (N = 102) 6.1 1 lawsuit (N = 82) 16.7 2 or more lawsuits (N = 35) 35.1 Non-surgeons (N = 426) No lawsuits (N = 361) 4.7 1 lawsuit (N = 57) 9.2 2 or more lawsuits (N = 8) 4.6 Source – Hickson , 2002

36. Nine Percent of Physicians Account for Fifty Percent of the Complaints % of Complaints % of Physicians Source – Hickson , 2002

37. Communication and Malpractice Claims Primary Care Physicians (n = 59) Variable No Claims (n = 29) Claims (n = 30) P- Value Visit length, min 18.3 15.0 < 0.05 No. of utterances per 15-min visit: Content Asks questions- medical 18.3 16.9 NS Gives information – medical 28.5 26.3 NS Process: Facilitation (Physician) 19.4 11.9 < 0.05 Orientation (Physician) 14.5 11.2 < 0.05 Affect Laughs (Physician) 4.8 3.4 < 0.05 Laughs (Patients) 7.8 7.5 NS Source – Levinson, 1997

38. Communication and Malpractice Claims Prior Malpractice Claims Group Category of complaint, % No Claims High Frequency P - value Physician-patient communication 8.2 27.6 0.01 Would not talk 6.7 23.5 0.01 Did not listen 1.9 7.1 0.01 Humanity of a physician 4.8 17.4 0.01 Yelled 4.8 9.2 0.15 No concern for me as a person 1.4 8.7 0.01 Source – Hickson, 1994

39. Medical Errors, Negligence, and Litigation Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

40. Malpractice as a Barrier to Safety Physicians overestimate the risk of being sued Less likely to report errors as a result

41. Other Potential Solutions Learn lessons from other industries Aviation, Military, Nuclear Power Development of IT infrastructures POE, Communication Less reliance on memory Restriction on working hours AAMC proposed guidelines (80 hour week) Greater staffing to patient ratios Improved nursing jobs Organizational Culture

42. “Physicians and nurses need to accept the notion that error is an inevitable accompaniment of the human condition, even among conscientious professionals with high standards. Errors must be accepted as evidence of system flaws not character flaws.” Leape, 1994

43. Common Sense Risk Reduction Strategies

44. 45 “Hot Spots” for Negligence (Rule Out The Worst Diagnosis Early ) Example: Middle-aged man experienced chest pain at work NP evaluated and conferred with physician Providers diagnosed “muscle spasm” and gave Valium Rx Went to ER was given codeine The next day went to the ER and after EKG performed, was diagnosed with MI Plaintiff sued for lost wages and won against Providers

45. 46 CONSIDERATIONS Follow established national guidelines as well as the policy and procedures of the organization in which you are practicing Remember the phrase, “Ordinary reasonable care” Would a reasonable practitioner in your situation make the same decisions?

46. COMMUNICATION CONSIDERATIONS Electronic communications are discoverable (E-Mail, etc.) May be used to demonstrate admission of an error May be used to demonstrate a pattern of mistakes that have been admitted 47

47. Risk Management Strategies “The Witness Whose Memory Never Fades” A Thorough Timely Medical Record

48. 49 Defense Strategy Comparative Negligence Modified Comparative Fault 50% rule : An injured party can only recover if it is determined that his or her fault is 49% or less. Thus, no recovery if the Plaintiff is 50% or more at fault (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia)

49. 50 Defense Strategy Comparative Negligence Modified Comparative fault 51% rule : The injured party must be 50% or less at fault to recover damages. Thus no recovery if the Plaintiff is 51% or greater, at fault Ohio and Pennsylvania follows this rule of law How might you incorporate this rule of law in your daily clinical practice as a defensive strategy?

50. Risk Managements strategies Reduces Medical Liability Exposure Ultimately produces better care for patients

51. 52 Defensive Strategy Comparative Negligence Mr. Jones is a 62yo male who has a history of HTN, DM, A-Fib, COPD, and CABG. Refusing to stop smoking “there is nothing you can say that will make me stop” Frequently will “forget” to take his medication (all of them are on the $4.00 list at Walmart) Refusing to get the abdominal US for the abdominal bruit due to cost. Now that you know about comparative negligence what should you focus on, in part, when you document in the medical record?

52. 53 Defensive Strategy Comparative Negligence “ Speak to the Jury” when you chart In the medical record: Quote Mr. Jones about his refusal to stop smoking. Discuss that his decision can increase his risk for morbidity and mortality Discuss the risks associated with “forgetting” to take his medication. Discuss ways to help him remember Explain why the abdominal US is needed and the risks of a delay in diagnosis and/or treatment Have patient sign your note. If you are using and EMR, print your note and have the patient sign it, then rescan it back into the EMR Send a certified letter

53. 54 Documentation Tips Use direct quotes to demonstrate your attention to the patient, highlight main areas of concern, build credibility into the record, and accurately document a patient’s competency, affect, and attitude. For example: “I have been to 12 doctors and no one can help me”.

54. Risk Managements strategies A more organized, office, clinic, or hospital operation for results and tests “NO NEWS is NOT just GOOD NEWS” Ultimately produces better care for patients

55. Communications Although you will not find POOR COMMUNICATIONS listed anywhere as an official cause of MEDICAL MALPRACTICE CLAIMS, it underlies almost every malpractice action. Contributing Factor 80%

56. 57 Documentation Tips Further, quoting the patient’s abuse or threatening words will sufficiently demonstrate their level of cooperation and credibility, while removing any bias in your interpretations

57. Communications It is the combination of long wait times and a short visit with the physician that yields the most negative results on patient satisfaction Patients who have short wait times and adequate patient-doctor exam room time are the most satisfied patients

58. 59 Documentation Tips Include supportive, reproducible observations : If a child appears “nontoxic”, list reasons to justify this description, such as “child is observed climbing on and off the exam table, smiling at intervals and is hopping on one foot while in the exam room”

59. Strengthening The Medical Record Write a full note. Write the positives and the negatives. Limit Abbreviations – Case – STD’s Do not use “Dictated But Not Reviewed”.

60. 61 Documentation Tips After performing any procedures: always document the condition of the patient after the procedure: For example: “Tympanic membrane visualized after irrigation intact without any erythema ”.

61. 62 Patient Education Can Reduce Malpractice The Role of the team providing care

62. Never Alter the Medical Record - NEVER SL – Single Line through the entry I – Initial the late entry as an Error D – Date the entry E – Note “ERROR” in the area.

63. S.O.A.P.E.R. S – Subjective O – Objective A – Assessment P – Plan E – Patient Education R – Reaction to Patient Education. EBI

64. 65 Special Consideration Suits in an outpatient settings often involve the mismanagement of tests. An office practice should be designed so that when tests are ordered, there is a fail-safe mechanism to make sure that they are reviewed in a timely manner. A delay in treatment is a significant source of liability in the outpatient setting.

65. 66 Special Consideration Check your facility’s test log daily. Call the lab to obtain the results. If the results are not available, document in the patient’s EMR that you attempted to obtain the results: “Spoke with lab to obtain Mrs. C’s urine culture results, but results are still pending”. If other NPs after you fail to obtain the results in a timely manner, the chart will reflect that you were still diligent.

66. 67 The Right to Understand Healthcare providers have a duty to provide information in simple, clear, and plain language and to check that patients have understood the information before ending the conversation The 2005 White House Conference on Aging: Mini Conference on Health Literacy and Health

67. Lack of documentation Five years from now, if someone reads your record on a patient you saw today, will they get an accurate picture of your care or will what is missing in the record speak louder than what you noted?