Prevention of Medical Errors EyeMed 2019

1. Prevention of Medical ErrorsEyeMed 2019 Brian P. Den Beste O.D., F.A.A.O.

2. Purpose • In response to Institute of Medicine report, November 1999. which reported “hidden epidemic in the US” • May 8th 2002… rule was added to statutes to reduce risk and increase public safety • 64B13-5.001 (8) mandates a 2 hr. course for licensure and renewal of licensure.

3. Today’s To Do List • Statistics • Root cause analysis • Review ways to minimize errors • Discuss the legal process of medical malpractice. • Cases and Optometry

4. Medical Error : defined • “A preventable adverse event”

5. New England JOMJanuary 2017 • Hospital medical errors are the 3rd leading cause of death in the US, behind Cardiovascular disease and Cancer • 700 deaths per day • 9% of Surgeons believe they have made a major medical error in the previous 3 months…. 1.5% felt that it resulted in fatality • Article reiterated issues regarding MD depression self treatment.

6. Medical errors happen….JAMA • 106,000 pts. die each yr. from neg. effects of meds. • 80,000 pts. die each yr. from infections incurred in hospital • Total of 225,000 deaths each yr. due to medical negligence of some nature.

7. 20 Tips to Prevent Medical Errors. • Agency for Health Care, Research and Quality (AHRQ) …..August, 2018 • Make sure your Drs. know all your meds and allergies • Can you read their writing on your RX • Anyone that is about to examine you…ask them if they have washed their hands. Pretty daring I would say.

8. Types of Medical Errors • Diagnostic • Treatment/ Medication • Performance ( wrong-site surgery) • Communication

9. Factors that play a role in medical errors • Fatigue • Alcohol and drugs • Distractions: patient, babies, cellphones • New to the office….”fill in Drs” • EMR….not sure how to record findings or instructions.

10. More Factors that Contribute • Highly complicated technologies • Time pressured environment • Communication barriers between staff, and or patients.

11. Root Cause Analysis (RCA) • The “whys technique”: A great tool to use in practice to determine why an error in patient care was made. • What happened, Why did it happen and what do you do to prevent it from happening again. • In a hospital setting it will involve multiple disciplines and has a strict requirement of impartiality

12. Reporting of errors • For fear of punishment, and loss of licensure, reporting of incidents is definitely less than it should be • National Practitioner Data Bank contains a lot of info on Drs. and mal practice. But the mal practice data….now called Medical professional liability (MPL) is only listed on claims paid.

13. Consumer Reports. May 2016

14. Consumer Reports • Entire article emphasized how hard it is for consumers to find out if their Dr. had been reprimanded , is on probation, or had been sued. • AMA lobbies to keep this info closed as “ inherently flawed”

15. National Practitioner Data Bank • 1.25 million doctors have practiced in US since 1990 (start of the bank ) • 192,000 (15%) have had at least one Malpractice Payout. • 50,000 reprimanded by their state boards.

16. National Data Bank • Less than 2% of the Drs. Accounted for 50% of the malpractice payouts since 1990 • $85, 064, 857, 850 paid out since 1990 • 85 Billion dollars in 25 yrs. 3.5 billion per year !!! • Despite those numbers, the take home from the article = hard to stop bad Drs. From practicing.

17. Medscape Mal Practice Report 2015 • 4,000 MDs were surveyed • OB- Gyns, Most likely to be sued • Psychiatrists and pediatricians least likely • Males 2 ½ times more likely to be sued than Females • 85% of OBs, 83% general surgeons, 79% orthopods admit to being sued.

18. 2 ½ times more likely

19. Medscape 2015 &2017 • 70% said they were surprised when they received their letter of being sued. • Only 20 % of those surveyed went to trial • 40% said their lawsuit was dismissed • 32% reached a settlement • 50% of cases no award, 20% under 100K 29% over 100K 7.6% over a million. • mean claim 350K

20. 17 Yr. Malpractice Data • 9/1990 - 3/ 2008 • MD 232,727 • DO 14,733 • Dentists 40,261 • Podiatrists 6,618 • OD 580

21. Malpractice payments by ODs: an Analysis of the Natl. Provider Data Bank. Optometry:Jan/2011 • Article by Duszak and Duszak • 18 yrs. Of malpractice data from National Provider Data Bank (NPDB) • Analysis of payouts by insurance companies for settlements or judgments

22. Duszak cont • Ave number of payouts per yr. 30-40 • 34,800 ODs so 1/1000 chance of payment per annum • 98 %of payments negotiated out of court….if you go to court you usually win…because the defense usually decides which cases to try or settle. • Mean payout of $190K • Optometry accounted for .14% of all payouts

23. Duszak cont. • 11 States accounted for more than half of the cases • Florida number 1 with almost 8% of the total. • Followed by PA,CA, NY , OK, TX, IL, NM, LA and OH. • Florida has some orals but no injectable

24. Duszak • Over 55% of cases were failure to diagnose, delay in diagnosis, or wrong diagnosis. • Not wrong treatment • Despite increased privileges and co-management successful lawsuits against ODs remain infrequent over the past 2 decades • The data does not show dismissed or dropped lawsuits or verdicts in the OD’s favor

25. Review of Ophthalmology Medical Professional Liability Claims In US 2006-2015 Blue ophth Journal 2018 • Data obtained from Physician Insurers Assoc of America (PIAA) • Medical professional liability MPL…new terms for medical mal practice • Great data: as it includes cases that resulted in no payout unlike the data bank • Negative: OMIC , largest Ophth insurer is a member but doesn’t contribute data.

26. 10 yr data PIAA • Ophtho: approx 2.5% of claims . #10 on the list • 24% of claims resulted in payout • 2/3rd of claims were dismissed , withdrawn • Cataract and Cornea related issues most common 50% of cases • Ave payout $250 K • 90 % that went to trial won.

27. 10 yr data cont • Ophtho ranked 12th • OB and gyno #1 • Internal med #2 • General Surgery #3 • Top 3 reasons for Ophth suits= Improper performance (29%), errors in DX, and Failure to recognize a complication of treatment (?DLK ectasia?) . • Cataract, Myopia, Retinal detach and Glauc.

28. How are our odds in the future?

29. States That Ods can Perform Minor SX (8) • AK • KY • LA • NE • NM • OK • OR • TN

30. States that allow Laser Tx • OK • LA • KY

31. States that Allow injectable Drugs for Diag and Tx (8) • ID • MT • NC • ND • UT • VA • WV • WI

32. Risk Management Defined • IN context of medical profession defined as those measures designed to prevent medical error, reduce adverse events , improve patient safety and avoid medical malpractice claims • IN context of medical malpractice, risk management is managing the risk of litigation.

33. What is Medical Malpractice? • You just experienced a bad result. The corneal ulcer that you had been treating for the past month is now quiet but the patient’s best vision is now 20/40. • The reality is a lot of lawsuits don’t have merit. A lot are due to a bad result, not bad doctoring.

34. Kissimmee gator farm 1926

35. Law 101 • You receive a letter from a plaintiff’s attorney saying they are intending to sue you, that means they have received your chart and have gotten another OD to sign a medical affidavit…….. Which means a like physician states that your care fell outside the std of care. • You then call your insurance co. and you are assigned an attorney and you have 90 days to respond

36. Med Mal ( medical professional liability) • The usual cause of action for a suit is Negligence. • The plaintiff has the burden of proof to establish 4 elements for a finding of negligence:

37. The 4 Element of Proving Negligence • 1. Legal duty is established • 2. Breach of duty or breach of the standard of care. • 3. Causation. The breach of duty caused the injury • 4. Damages. The injury caused an actual damage.

38. 1. Legal Duty Exists • This is typically established by the physician – Patient relationship. A chart was started. • This may occur even if you have never seen the patient! If you are giving advise to another Dr.’s patient that you are on call for. • A patient that you saw only once when your colleague went on vacation. • Your partner’s patient that you came in the room to see….for a moment

40. 2. Breach of Duty • Once the legal duty is determined by the court or jury, the plaintiff must prove that a breach of duty has occurred, more commonly referred to as a deviation from the standard of care.

41. Standard of Care • It requires a physician to exercise the degree of knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. • AoA practice guidelines are useful

42. Breach of duty • The breach may be a failure to diagnose • Delay in diagnosis • Improper treatment • Failure to obtain informed consent • And/or substandard care

43. To prove a breach std of care: • Expert witnesses are used • These are typically in the same specialty .

44. 3. Causation • The plaintiff has to prove that your actions caused a problem…usually loss of vision • Example: You treated someone for an abrasion, but you didn’t dilate the patient, later the patient went on to lose vision from RP. Your lack of dilation didn’t change the patient’s visual course

45. 4. Damages • The fourth element the plaintiff must prove • “The corneal ulcer is causing the patient to not see “ • Recent case I was involved in included surveillance of the plaintiff….malingering • The measure of damages is the amount that will compensate for the injury • Compensatory damages are divided into economic and non- economic damages.

46. Economic Damages • Loss of wages… present and future • Medical expenses….past , present and future

47. Non-Economic Damages • Very subjective: • Pain • Physical impairment • Mental suffering, inconvenience • Loss of companionship, humiliation • Limited in California to 250K

48. June 2017 • Florida Supreme Court on Thursday ruled that a law limiting pain-and-suffering damages in medical malpractice cases is unconstitutional, rejecting a controversial change that the Legislature and then-Gov. Jeb Bush approved in 2003. .

49. Deposition • Be prepared • Have legal representation • Short answers, the plaintiff attorney, loves a conversation • Do not educate the plaintiff ( they may not know what to ask) • Do not argue • What is said in depo is what is used in court, you have a chance to read and revise.

50. Affirmative Defenses • 1. Statute of limitations. Failure by the plaintiff to commence with action within the time limits set by the jurisdiction where the case is being brought. 2 yrs. in Fl. • 2. Contributory or Comparative negligence: conduct by the plaintiff that falls below the std expected of a person for self- protection.