The Anatomy. of a Claim Loss Prevention Seminar for Physicians

Transcription

1 The Anatomy of a Claim 2016 Loss Prevention Seminar for Physicians

2 PRESENTER Mallory Earley Risk Resource Advisor ProAssurance Toll Free: Direct:

3 Disclosure ProAssurance is committed to providing CME activities that are fair, balanced and free of bias. The planners and presenter(s)/authors(s) of this CME activity have disclosed no conflict of interest relative to this educational activity.

4 Disclaimer Information in this presentation is neither an official statement of position nor should it be considered professional legal advice to individuals or organizations.

5 Learning Objectives Participation in this seminar will better enable participants to: Understand the litigation process for allegations of medical malpractice by examining closed claims; Recognize how expert witnesses are used for and against physicians and their effect on defense strategies; and Identify how effective communication and documentation reduce healthcare liability claims.

6 INTRODUCTION

7 Medscape Malpractice Report 2015 Medscape surveyed nearly 4000 physicians Results: If/why they were sued How the lawsuit affected their career How to reduce the number of lawsuits Long term effects both emotional and financial Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site #page=1 December 9, Accessed February 26, 2016.

8 Have You Ever Been Named in a Malpractice Suit? 50% 47% 40% 30% 20% 10% 0% 12% Yes; one of many parties named Yes; only person named Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site #page=2 December 9, Accessed February 26, 2016.

9 Were You Surprised to be Sued? 80% 70% 60% 40% 27% 20% 0% 3% Yes, I was surprised No, I suspected that there might be a lawsuit No, I was absolutely expecting it Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site #page=15 December 9, Accessed February 26, 2016.

10 How Often Does Malpractice Threat Influence Thinking or Action? Never 2% 1% Never named in lawsuit Rarely; not unless something goes wrong with a patient or there is a "trigger event" Occasionally -- mostly if I'm unsure of my diagnosis, or I have a combative patient 19% 24% 26% 34% Named in lawsuit Almost all the time 26% 36% Always, with every patient 14% 18% 0% 20% 40% Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. December 9, Accessed February 26, 2016.

11 ELEMENTS & STANDARD OF CARE

12 1. Duty Elements of Malpractice Prove physician patient relationship 2. Breach of duty Standard of Care is how you determine this/injury 3. Proximate cause Breach has to be related to/cause of injury, and 4. Damages Good outcome no damages - no claim

13 Alabama Standard of Care In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case. Ala. Code (a)

14 THE ANATOMY OF A CLAIM

15 The Anatomy of a Claim Injury/reporting Venue Pleadings Discovery Motions Trial Appeal

16 INJURY/REPORTING

17 When to report When policy requires Unexpected outcomes Reporting Deposition request or medical record request in a professional liability case You hurt me, give me money

18 CASE STUDY

19 Case Study: Facts 71-YOM presented to Dr. General Surgeon on referral from PCP hernia in old robotic prostatectomy incision March 4: Dr. General Surgeon performed hernia repair, Dr. Partner assisted; discharged March 6 w/ JP drain March 9: readmitted to hospital with nausea, vomiting, and distended abdomen Dr. General Surgeon noted patient last reported bowel movement on March 7 Films are ordered; IV ½ normal saline at 125 cc/hr; CBC; chem profile

20 Results & Impression WBC: 18.6 (4-10.8) Creatinine 1.4 (.7-1.2) Glomerular filtration estimate 51 (>90) Potassium 3.1 ( )

21 Case Study: Facts Plan: watch patient, give fluids, let clinical picture develop to determine if ileus or small bowel obstruction. Pt had a bowel movement that evening. March 10: Pt still nauseated; Zofran 4 mg IV prn March 11: nausea, vomiting improved, no Zofran

22 Case Study: Facts March 11: Dr. General Surgeon developed kidney stones March 12: Dr. Partner performed exam, noted abdomen moderately distended, Pt eating ice chips, no bowel movement, flatus, or emesis March 12: Ordered films; different radiologist read

23 Dr. Partner Reads Films am on 3/13 Results

24 Case Study: Facts March 13: Dr. Partner saw Pt next afternoon Spot of distention confined to area of prior hernia incision (new finding) Soft, squishy, thought to be seroma; assumed JP drain clogged Attempted to open seroma at bedside Liquid stool poured out Pt s family still in room

25 Case Study: Facts March 13: Emergency surgery Anesthesia score rated a 3E Just before anesthesia, Pt vomited and there was questionable aspiration NG tube placed, approx. 3,000 cc gastric contents returned Recurrent hernia repaired; small hole in small bowel repaired Taken to recovery in stable condition on ventilator due to aspiration

26 Case Study: Facts Blood pressure and urine output decreased Creatinine 3.4 (.7-1.2) Glomerular filtration estimate 19 (>90) Started drips, but became anuric w/ severely labile blood pressures DNR - died March 14

27 WHAT HAPPENS NOW?

28 Why are we talking about this?

29 VENUE

30 Type of court Venue State vs. Federal Professional Liability mostly like in state court Judge Jury pool

31 PLEADINGS

32 Complaint Allegations of violation of standard of care May involve multiple claims against multiple defendants, and may have specific claims per defendant Must be filed within applicable statute of limitations Allegations use legal, rather than clinical terms

33 Case Study: Complaint Negligently cared for, treated the patient; Failed to diagnose and treat small bowel obstruction; Failed to interpret x-rays accurately or order CT of abdomen; Failed to order/perform insertion of an NG tube; Negligently opened the patient s incision at bedside and stabbed the bowel

34 Case Study: Complaint

35 Answer Response to complaint allegations Each defendant must respond General denial vs. specific denial Affirmative defenses Statute of Limitations

36 Case Study: Answer Specific Denial General Denial

37 Case Study: Affirmative Defense

38 DISCOVERY

39 Discovery Discovery Requests Requests for Production for Parties Subpoenas for Non-parties Requests for Admission Interrogatories Depositions Parties and non-parties Fact witnesses and expert witnesses

40 Requests for Production Limited time to respond Production of chart Requests may include inspection of devices Only apply to parties

41 Case Study: Request for Production

42 Subpoenas Apply to Non-Parties Requests for documents Regulated by HIPAA

43 Medical Record & Documentation Documentation Issues in Case Study Documentation by Exception Order of events Location of Record Entries Late Entry

44 Case Study: Documentation Issues Video: Allison Adams 3 - documentation by exception Documentation By Exception

45 Case Study: Documentation 3/13 Pt with stool coming from wound incision opened at bedside and Bowel has herniated under incision Needs exploration / closure - discussed with family and patient

46 Case Study: Documentation Issues Video: Allison Adams 4 - order of events Order of Events

47 Case Study: Documentation Issues Video Allison Adams 5 Ins and Outs Location of Record Entries

48 Case Study: Documentation

49 Case Study: Documentation Issues Video: Allison Adams 6 - late entry Late Entry

50 Interrogatories Limited time to respond Written questions for parties Wide range of questions Attorney may offer objections Answers may be used to impeach testimony

51 Case Study: Interrogatories

52 Request for Admissions Limited time to respond Parties required to admit or deny the truth of statements Anything not answered is deemed admitted after time limitations expire

53 Case Study: Request for Admissions

54 Depositions Recorded sworn testimony prior to trial Witnesses may provide deposition testimony or trial testimony or both Witnesses include the following: Parties Fact witnesses Expert witnesses

55 Party as a Witness Plaintiff and defendant will usually testify in deposition and trial Any inconsistencies in depo vs. trial testimony affect credibility

56 Case Study: Defendant s Deposition Video: Allison Adams 7 defendants depo

57 Plaintiff Attorney Cross Examination

58 Reptilian: primitive and survival instincts Reptile Theory

59 Reptile Theory A process that takes place throughout litigation Seen most in deposition, voir dire, and opening statements Shifts focus from injury of Plaintiff to general public Scares the primitive part of juror s brains and utilizes their fears especially regarding safety Gut reaction: leads to tendency to give damages based on violation of broader perception of safety

60 Reptile Theory Shifts perspective from injured Pt to defendant s conduct Move jurors into survival mode Safety rule + Danger = $$$ Safety rule must: Protect people in a wide number of situations Must be in clear English Say what the person must do Easy to follow To not agree would be careless or stupid

61 Safety rule example: Reptile Theory Safety is always a top priority, right? Any level of danger is never appropriate, correct? Reducing risk is always a top priority, wouldn t you agree? Wouldn t it have been safer if X had happened?

62 Defendant s Deposition Partner Patient

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64 Patient

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67 How to Combat Reptile Theory? Dispel the physiological basis for effectiveness Suggesting threat and not real danger cannot awaken reptilian response in juror No longer fight or flight process information Prepare and defend against these allegations especially in deposition

68 Fact witnesses Fact Witnesses Patient Family members/care givers Other treating clinicians Subsequent treating physicians Nurses, AHPs, medical assistants

69 Case Study: Fact Witness Example Partner Niece s deposition

70 Case Study: Fact Witness Example Partner Patient her Niece s deposition

71 Niece s deposition

72 Case Study: Fact Witness Allison Adams 8 Clean up full

73 Focus Group s Reaction Video of focus group: 9 Clean up captioned

74 Wife s deposition

75 Expert Witnesses Connection to standard of care Qualifications May have deposition and trial involvement Both sides use experts Expensive Importance of credibility

76 Case Study: Plaintiff s Expert Depo Video of Plaintiff s expert depo 12 - Roberts residency

77 Case Study: Plaintiff Expert Dr. General Surgeon discharged Pt too early Dr. General Surgeon did not properly resuscitate the patient Pt s re-hydration was not adequate or aggressive enough to produce urine output Pt was hydrated with wrong fluids (should have been normal saline w/ K-Cl added, not ½ normal saline) Should have placed an NG tube upon readmission Should have ordered gastrografin study or CT of abdomen/pelvis

78 Case Study: Defense Expert Decision to place NG tube is a judgment call when finding of small-bowel obstruction versus ileus Decision to order CT or small-bowel followthrough also a judgment call Pt s BUN, creatinine, and WBC counts creeping up were likely due to dehydration Draining suspected seroma at bedside appropriate

79 MOTIONS

80 Summary Judgment Narrative summary of undisputed material facts Supported by specific reference to pleadings, portions of discovery materials, and affidavits. No genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. May be rendered on liability alone, leaving damages

81 TRIAL

82 Jury selection Opening statements Plaintiff s case Defendant s case Closing arguments Deliberations/Verdict Trial

83 Jury Selection Number of potential jurors varies Voir dire process Potential jurors may fill out questionnaire Attorneys may ask questions Strikes For cause

84 Opening Statements Preview of allegations/defenses Plaintiff goes first Burden of proof Defendant goes second Plaintiff may have option for second opening

85 Presentation of Plaintiff s/defendant s Case Witness testimony Direct Examination Cross Examination

86 Presentation of Plaintiff s/defendant s Case Exhibits Must be admitted May require foundation testimony

87 Case Study: Use of Exhibits Video: Allison Adams 16 discredit animation showing animation Plaintiff s Exhibit

88 Summary of case Closing Arguments May refer to admitted evidence Plaintiff goes first, and may have opportunity after defendant s argument

89 Jury Charge No time limits Jury Deliberation May ask questions of judge Deliberations are secret, but jurors may agree to interviews after rendering verdict

90 Case Study: Verdict Video: Allison Adams 19 verdict

91 Focus Group s Reaction to Verdict Video: Focus group 20 FG Verdict captioned 2

92 APPEALS

93 Appeals Not every verdict gets appealed Basis for appeal is legal, not clinical Appellate courts only consider information from the trial court record No witnesses, just written briefs and attorney arguments

94 Final Thoughts Video: Allison Adams 21 being nice helps

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