Medical Malpractice Risk Management

1. Medical Malpractice Risk Management R. Monty Cary PA-C, M.Ed., DFAAPA Senior Partner Cary Associates, LLC.

2. Disclaimer • Not intended as legal advice • The cases are real • Best learning is by example • No pharmaceutical support

3. Failure to Diagnose Referral Examination PITFALLS OF MEDICAL MALPRACTICE SUPERVISION Documentation COMMUNICATIONS

5. Medical Malpractice Process Being put on notice Discovery Deposition Preparation for trial Conclusion on the case.

7. Reaction To A Medical Malpractice Lawsuit • That it can’t be happening • to me. • You don’t want to believe it. • You’re thinking, “I’m too • young to be sued”.

8. Reaction To A MedicalMalpractice Lawsuit My career is over I’ve been careful I know that I didn’t do anything wrong.

9. Reaction To A MedicalMalpractice Lawsuit You recognize its not a dream You are really being sued The court room is not like the office, hospital or clinic.

10. In The Court Room You’re Like A Duck Out Of Water.

11. After Learning About The Lawsuit • Not being able to practice like you would like to • Not being able to focus on patients like you should • How do your co-workers feel about you?.

12. After Learning About The Lawsuit • You are distraught • The very idea of someone questioning your ability • What will you do the next time you see the patient?.

13. Higher Degree of Self Doubt • Why do I feel guilty? • Did I screw up? • Did I cause the problem? • Am I going to win or lose the case?.

14. Common Sense Risk Management Strategies

15. Risk Management Strategies • Reduces medical liability exposure • Ultimately provides better care for your patients.

16. Risk Management Strategies • A more organized office, clinic or hospital operation • Fewer chances of important details to fall through the cracks.

17. Discovery Rule • Statutes of Limitations – Puts the Plaintiff on Notice • When the Plaintiff knows or should have known

18. Discovery Rule • Twenty Two Months to be reported • Thirty Four Months for the claim to be resolved • Total of Fifty Five Months.

19. Medical Malpractice Cost • $17,000 - $25,000 for an Out-of-Court Settlement • $75,000 - $112,000 to take it to verdict.

20. Case In Point Four Years Later A Malignant Tumor Seven Years – Surgical Towel

21. Medical Malpractice Defined • Medical Malpractice can be defined as Negligence on the part of the Physician, Allied Healthcare Provider or Hospital which causes Physical or Emotional Damage to the patient.

22. Medical Malpractice Defined • Duty • Breach • Causation • Injury - Damages

23. Duty Provider – Patient Relationship Implied Contract

24. Breach Standard of Care External / Internal

25. Causation • Cause In Fact – The providers negligence caused the injury • Or a reasonable close connection existed between the provider’s conduct and the patient’s injury • Must prove that the provider was the “Cause-In-Fact” of the patients injury

26. Injury / Damages • Death – Disability – Deformity – Severe Pain • Special – Lost Wages – Out-of-Pocket Expenses

27. Injuries / Damages • General – Intangible Losses – Pain – Suffering – Emotional Distress • Punitive Damages – Fraudulent Case

28. Medical Malpractice 1 • How would a reasonable, careful and prudent doctor, allied health care professional or hospital behave in the same or similar circumstances?

29. Medical Malpractice 2 • Did the doctor, allied healthcare professional or hospital breach the Standard of Care in this specific situation?

30. Medical Malpractice 3 • Was the unreasonable, careless, inappropriate behavior on the part of the doctor, allied healthcare professional or hospital the proximate cause of the injury to the patient?.

31. National Practitioner Data Bank • The Health Care Quality Improvement Act of 1986 • Public Law 99-660 • Doctors – Dentist – Allied Healthcare Providers • Licensed – Certified – Registered

32. National Practitioner Data Bank • 62% of cases are dismissed or dropped • 32% in favor of the plaintiff • 6% of cases go to trial

33. National Practitioner Data BankSept 1, 1990 to Oct 11, 2008 • Physicians (All) 254,678 • Physician Assistants 1,299 • Nurse Practitioners 812 • Nurses 4,459

34. National Practitioner Data BankSept 1, 1990 to Oct 11, 2008 Physician Assistants New York 180 Florida 131 Texas 98 California 96 Michigan 77 North Carolina 71 Arizona 59 Washington 51 Georgia 45 Pennsylvania 38

35. 2004 NPDB StatisticsPhysician Assistants 135 Payments for 2004 Average = $180,787.00 63 Misdiagnosis 40 Treatment Errors 15 Medication Errors 6 Failure to Monitor 5 Surgical Errors 3 Miscellaneous 1 OB 1 Equipment Failure 1 IV / Blood Products Related

36. 2005 NPDB StatisticsPhysician Assistants 110 Payments for 2005 Average = $98,875.00 64 Misdiagnosis 21 Treatment Errors 13 Medication Errors 1 Failure to Monitor 5 Surgical Errors 4 Miscellaneous 1 Equipment Failure

37. 2006 NPDB StatisticsPhysician Assistants 113 Payments for 2006 Average = $234,635.02 65 Diagnosis related 33 Treatment related 4 Medication 4 Surgery 3 Monitoring 2 Anesthesia 1 Obstetrics 1 Miscellaneous

38. 2007 NPDB StatisticsPhysician Assistants 94 Payments for 2007 Average = $90,875.00 45 Diagnosis Related 24 Treatment Related 11 Medication Related 5 Surgery Related 4 Monitoring Related 2 Other 2 Obstetrics Related 1 Anesthesia Related

39. Physician Assistants • Inadequate Supervision • Inadequate Examination • Untimely Referral • Failure to Diagnose • Lack of Documentation • Poor Communications

40. Physician Assistants Inadequate Supervision • Legal requirements for the state are met. • Three Visit Rule – Narcotic Medications • Limited physician supervision. • Satellite Clinic – Case • Documentation of supervision is incomplete. • If it is not written . . .

41. Physician Assistants Inadequate Examination • Always confirm & expand on the Chief Complaint. • Do not take some else's triage. • You must always perform a complete physical examination for the history taken.

42. Physician Assistants Untimely Referrals • All providers must ensure timely referrals • Not sending the patient to the supervising physician, Emergency Room, other medical specialties.

43. Physician Assistants Failure to Diagnose • Uncertain about the assessment of a patient. • Patients condition does not follow the anticipated course. • Not understanding reports. • 51.4% medical malpractice suits are Failure to Diagnose.

44. Physician Assistants 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?

45. Documentation “The Witness Whose Memory Never Fades”

46. Serves Three Purposes • Reminds the healthcare professional what s/he has done for and to the patient. • Alerts other healthcare professionals what has been done forandto the patient. • It is a LEGAL RECORD.

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

48. Strengthening The Medical Record • Establish a consistent method of charting and organizing the record. • Note ALL conversations with patients including phone calls. • Initial and date the documents you review.Case – PSA.

49. 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”.

50. “Dictated But Not Reviewed” “The patient had a baloney amputation in 1989” – A below theknee amputation. • “Patient had a pabst beer today” – Apap smear. • “The patient was found in the bathroom without a purse”. – Without a pulse.