Litigation and risk reduction strategies Joel R Garcia MD FACC Chief Quality Officer Orlando Health Heart Institute 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 ID: 1015334
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1. The Provider: Medical Errors, Negligence, Litigation and risk reduction strategiesJoel R. Garcia, MD FACCChief Quality OfficerOrlando Health Heart Institute
2. 2DisclaimerThis lecture does not, in any way, constitute legal advice or the practice of law and is not intended to replace legal counsel.
3. 3Establishing the “Need to Know”Knowledge is empoweringMove from “fear-victim” mode -to- “proactive-preventive” mode
4. 4Anatomy of a Medical Malpractice Cause of ActionA form of negligenceLiability exists whether actions were intentional or unintentionalNegligence results when the provider’s conduct falls below the standard of care established to protect the patient from an unreasonable risk of harm
5. 5Four Elements We Need to Know DutyBreach of DutyActual and proximate causationInjury
6. 6DUTYTo 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. 7DUTYStandard of Care ConsiderationsMedical Act of your State Board of Medicine defining your scope of practiceNational treatment guidelinesInstitutional treatment protocol/guidelinesExpert testimony
8. 8BREACH OF DUTYA deviation from the standard of careAn “expert witness” may be deposedAs a board certified provider (MD), national standards will be used, in part, as the benchmark of the acceptable standard of care
9. 9ACTUAL AND PROXIMATE CAUSATIONThe analysis of the actual causation element involves the “but for” testBut for the provider’s action, injury would not have occurredForeseeability – the injuries were the result of the provider's action and the injuries were foreseeable before the injury occurred
10. ACTUAL AND PROXIMATE CAUSATIONA 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. 11HARMInjury must be provenBy presentation of:Medical billsExpert testimonyDirect evidence of pain and suffering
12. 12Systematic Approach to Primary Prevention of MalpracticeIncorporate a review of the elements of medical malpractice into each encounterReflexive process of thinking
13. Medical Errors, Negligence, and LitigationMedical ErrorsRelationship of Medical Errors to NegligenceWhy do People Sue their Doctors?Potential Solutions to the Problem of Medical Errors
14. Accidental Deaths in the U.S.
15. DefinitionsErrorFailure 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 patientPreventable Adverse EventAn adverse event attributable to an error
16. Relationship of Medical Errors to Adverse EventsAccidental errorsMedical ErrorsPreventable AEs
17. Epidemiology of Medical ErrorsCalifornia Medical Insurance Feasibility Study (1974)20,864 hospital admissions4.65 injuries per 100 hospitalizationsHarvard Medical Practice Study (1984) 30,121 hospital admissions in NY stateReported adverse events (AE’s)3.7% of admissions had an AE
18. Harvard Medical Practice Study
19. Quality in Australian Health Care StudyReviewed 14,179 admissions in 199516.6% of admissions had an AE’sPermanent disability 13.7%Death 4.9%51% of events preventableSource – Wilson, 1995
20. To Err is HumanIOM releases report To Err is Human (2000)Estimates 44,000 to 98,000 unnecessary deaths each year due to medical errorEstimated 1,000,000 excess injuries due to medical errorNumbers based on the MPS and extrapolated to the general population
21. Deaths due to Medical Error44,000 to 98,000 unnecessary deaths each yearMore Americans are killed in US hospitals every 6 months than died in the entire Vietnam WarDeath rate equivalent to three “jumbo” jet crashed every two days
22. Where do these numbers come from and why might they be overestimatedMethodsPhysician implicit judgmentCausality of death difficultKappa statistics lowOvercoming these shortcomingsUtilizing more reviewersRequiring greater agreementRequiring assessment of overall prognosis
23. Views of the Public on Medical ErrorsPercentage of adults experiencing an errorMedication or medical error22%Mistake at the physician’s office or hospital10%Wrong medication or dose16% Source- The Commonwealth Fund, 2001
24. Views of Practicing Physicians and the Public on Medical ErrorsResponsePhysicians (N = 831)Public (N = 1207)P ValueAll RespondentspercentError made in own or family member’s care3542<0.001Health consequences: (Serious)1824<0.001Respondents reporting an errorParties who had “a lot” of responsibility for the error: (Doctors)7081<0.001Health professional told respondent an error had been made3130<0.001Possible solutions to the problem of medical errors Increasing lawsuits for malpractice123<0.001Hospital reports of serious medical errors should be: Confidential8634<0.001 Made public1462<0.001Source- Blendon, 2002
25. Disposition of Claims According to the Rating of the Plaintiff's Injury and Degree of DisabilityRatingNo. of Closed CasesSettled for PlaintiffMean Settlementno (%)$Type of injury No adverse event2410 (42)28,760 Adverse event136 (46)98,192 Negligent adverse event95 (56)66,944Disability None 2410 (42)28,760 Temporary 144 (29)38,857 Permanent 87 (88)201,250All claims 4621 (46)55,853Source – Brennan, 1996
26. 100028036All InjuriesAll Negligent InjuriesFiles a Claim13% of Negligent Injuries Results in a Claim
27. Negligent Medical Injuries Sources- Mills et al. (1977), Brennan et al. (1991), IOM (1999).All HospitalizationsNegligent Injuries (1-2%)
28. Negligent Injuries that Did Not Result in a Claim27,179 adverse events due to negligence26,764 with no malpractice claim (98%)415 malpractice claims (2%)14,180 with strong evidence of negligence12,858 with disability7462 with disability < 6 mo (58%)5396 with disability ≥ 6 mo (42%)Source – Localio, 1991
29. Medical Errors 42% of public report a medical error66% reported serious consequences such as severe pain, substantial loss of time at work or school, disability or even deathOnly 6% had sued
30. Why is medicine so susceptible?Lack of awareness to the problem“Culture of Silence”Blame and shame mentalitySystem constraintsStaffing problemsFatigueKnowledge requirementsCommunication 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 LitigationMedical ErrorsRelationship of Medical Errors to NegligenceWhy 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 32Needed money 24Believed there was a cover-up 24Child would have no future 23Needed information 20Wanted revenge, license 19Percent Expressing ConcernSource - Hickson, 1992
34. Malpractice RiskMalpractice activity is disproportionate among physicians75% - 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 ComplaintsPhysician CharacteristicTotal Physicians (N = 645)Mean Number of ComplaintsSurgeons (N = 219) No lawsuits (N = 102)6.1 1 lawsuit (N = 82)16.7 2 or more lawsuits (N = 35)35.1Non-surgeons (N = 426) No lawsuits (N = 361)4.7 1 lawsuit (N = 57)9.2 2 or more lawsuits (N = 8)4.6Source – Hickson, 2002
36. Nine Percent of Physicians Account for Fifty Percent of the Complaints% of Complaints% of PhysiciansSource – Hickson, 2002
37. Communication and Malpractice ClaimsPrimary Care Physicians (n = 59)VariableNo Claims (n = 29)Claims (n = 30)P- ValueVisit length, min18.315.0< 0.05No. of utterances per 15-min visit: Content Asks questions- medical18.316.9NS Gives information – medical28.526.3NS Process: Facilitation (Physician)19.411.9< 0.05 Orientation (Physician)14.511.2< 0.05 Affect Laughs (Physician)4.83.4< 0.05 Laughs (Patients)7.87.5NSSource – Levinson, 1997
38. Communication and Malpractice ClaimsPrior Malpractice Claims GroupCategory of complaint, %No ClaimsHigh FrequencyP - valuePhysician-patient communication8.227.60.01 Would not talk6.723.50.01 Did not listen1.97.10.01Humanity of a physician4.817.40.01 Yelled4.89.20.15 No concern for me as a person1.48.70.01Source – Hickson, 1994
39. Medical Errors, Negligence, and LitigationMedical ErrorsRelationship of Medical Errors to NegligenceWhy do People Sue their Doctors?Potential Solutions to the Problem of Medical Errors
40. Malpractice as a Barrier to SafetyPhysicians overestimate the risk of being suedLess likely to report errors as a result
41. Other Potential SolutionsLearn lessons from other industriesAviation, Military, Nuclear PowerDevelopment of IT infrastructuresPOE, CommunicationLess reliance on memoryRestriction on working hoursAAMC proposed guidelines (80 hour week)Greater staffing to patient ratiosImproved nursing jobsOrganizational 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
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44. Common Sense Risk Reduction Strategies
45. 45“Hot Spots” for Negligence (Rule Out The Worst Diagnosis Early )Example:Middle-aged man experienced chest pain at workNP evaluated and conferred with physicianProviders diagnosed “muscle spasm” and gave Valium RxWent to ER was given codeine The next day went to the ER and after EKG performed, was diagnosed with MIPlaintiff sued for lost wages and won against Providers
46. 46CONSIDERATIONSFollow established national guidelines as well as the policy and procedures of the organization in which you are practicingRemember the phrase, “Ordinary reasonable care”Would a reasonable practitioner in your situation make the same decisions?
47. COMMUNICATION CONSIDERATIONSElectronic communications are discoverable (E-Mail, etc.)May be used to demonstrate admission of an errorMay be used to demonstrate a pattern of mistakes that have been admitted47
48. Risk Management Strategies“The Witness Whose Memory Never Fades”A Thorough Timely Medical Record
49. 49Defense Strategy Comparative NegligenceModified 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)
50. 50Defense StrategyComparative NegligenceModified 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 faultOhio and Pennsylvania follows this rule of lawHow might you incorporate this rule of law in your daily clinical practice as a defensive strategy?
51. Risk Managements strategies Reduces Medical Liability ExposureUltimately produces better care for patients
52. 52Defensive StrategyComparative NegligenceMr. 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?
53. 53Defensive StrategyComparative Negligence“Speak to the Jury” when you chartIn the medical record: Quote Mr. Jones about his refusal to stop smoking. Discuss that his decision can increase his risk for morbidity and mortalityDiscuss the risks associated with “forgetting” to take his medication. Discuss ways to help him rememberExplain why the abdominal US is needed and the risks of a delay in diagnosis and/or treatmentHave 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 EMRSend a certified letter
54. 54Documentation TipsUse 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”.
55. 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
56. CommunicationsAlthough 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%
57. 57Documentation TipsFurther, quoting the patient’s abuse or threatening words will sufficiently demonstrate their level of cooperation and credibility, while removing any bias in your interpretations
58. CommunicationsIt 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
59. 59Documentation TipsInclude 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”
60. Strengthening The Medical RecordWrite a full note. Write the positives and the negatives.Limit Abbreviations – Case – STD’sDo not use “Dictated But Not Reviewed”.
61. 61Documentation TipsAfter performing any procedures: always document the condition of the patient after the procedure: For example: “Tympanic membrane visualized after irrigation intact without any erythema”.
62. 62Patient EducationCan Reduce MalpracticeThe Role of the team providing care
63. Never Alter the Medical Record - NEVERSL – Single Line through the entryI – Initial the late entry as an Error D – Date the entryE – Note “ERROR” in the area.
64. S.O.A.P.E.R.S – Subjective O – ObjectiveA – AssessmentP – PlanE – Patient EducationR – Reaction to Patient Education. EBI
65. 65Special ConsiderationSuits 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.
66. 66Special ConsiderationCheck 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.
67. 67The Right to UnderstandHealthcare 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 conversationThe 2005 White House Conference on Aging: Mini Conference on Health Literacy and Health
68. Lack of documentationFive 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?