1. What on Earth Is Going On: Malpractice Legalese for the Interventional Radiologist Thea Moran, MD and Richard Kuebler, MD, JD Louisiana State University New Orleans, LA

2. Introduction There is little in the literature regarding interventional radiology and malpractice Malpractice lawsuits are stressful This presentation is intended to give IRs an overview of malpractice litigation with special relevance for the interventionalist

3. Law CriminalCivil Torts IntentionalUnintentional Malpractice Chancery (court of equity) ContractsAdministrative

4. Malpractice and negligence Malpractice is a type of negligence Negligence is without “mens rea” (evil intent) Negligence doesn’t necessarily = carelessness Negligence is a type of tort thus allowing for compensations to be paid to an individual Malpractice laws/procedure - state governed

5. Component of negligence: 1. Duty Does a physician-patient relationship exist? – Request for consultation establishes 3 duties: – Duty to provide the consult – Duty to not provide the service if unable – Duty to refer if unable to provide service

6. Component of negligence: 2. Breach of care Duty to act as a reasonably prudent interventionalist How is “reasonable” determined? – Common sense – Expert testimony – Written standards

7. Expert testimony “Experts” have special training allowing them to provide unbiased opinions on data that is beyond the understanding of lay people Experts testify “to a reasonable degree of medical certainty” – “Probably” or “more likely than not” Plaintiff must offer expert testimony (exception: Res ipsa loquitur) “Experts” can be disqualified by the judge

8. Written standards Licensure regulations Accreditation standards Institutional rules Clinical protocols Standards and practice guidelines

9. ACR/SIR Practice Guidelines Not to be confused with standard of care Governing agencies or professional societies define Goal: provide clear, informative guidelines for evaluating evidence, decrease legal costs Admissible as evidence but discretion needed Guidelines are continually being revised

10. Respected minority rule “Two schools of thought” rule 2+ professionally accepted approaches to a given clinical situation may exist No legal duty to follow the majority approach Both approaches need to be discussed during informed consent

11. Components of negligence: 3. Injury and 4. Proximate Cause Sufficient emotional, physical or financial injury must have resulted to merit significant damages Must be proven that injury resulted from breached care

12. Damages Special damages – Directly related expenses ie lost wages General damages – Natural consequences of the act ie physical/emotional anguish Punitive damages – Purpose: punish outrageous acts, set an example, deter liable party from repeating – Rare in medical malpractice cases

14. Doctrine of Personal Liability Defendant responsible for own negligent conduct Defendant cannot avoid responsibility via another rule of law

15. Doctrine of respondeat superior “Let the master answer” Employers are legally responsible for negligent acts by employees Applies only while serving duties of employment Responsible for acts by technologists, nurses and residents – Vicarious liability

16. Doctrine of borrowed servant The one controlling the employee actions at the time of the incident has greater legal responsibility than the one who pays the employee Attending is legally responsibility when tech, nurse or resident acts negligently – Vicarious liability

17. Dual servant doctrine States may use this doctrine instead of the borrowed servant doctrine Employee receives substantial direction from the hospital through policies and rules Both physician and hospital are vicariously liable

18. Doctrine of foreseeability Defendant liable for all negligent acts to another individual and should have been reasonably foreseen under the circumstances Car accident victim can sue interventionalist if failed to inform patient of need to have ride home after conscious sedation

20. Anatomy of a malpractice case: steps in the legal process Filing the complaint Receiving and answering the complaint Discovery Summary judgement Not dismissed TrialSettleDismissed

21. The complaint Filing the complaint – Complaint filed in a court having jurisdiction Receiving the complaint Summons delivered to defendant Defendant answers allegation within a time frame Professional insurer assigns an attorney

22. Discovery Both sides disclose case pertinent information – Settle vs trial Medical records, imaging, communications List of expert witnesses Depositions/interrogatories Discovered information can be used at trial!

23. Deposition Cornerstone of discovery Oral examination by opposing counsel under oath in trial like setting without a judge present Plaintiff, defendant and expert witnesses Written transcript obtained May be presented at trial by video or in person Interrogatories: formal printed questions to be answered and notarized within a time frame

24. Avoiding the expense of a trial Settlement attempts – Pretrial conference Clarify case issues, streamline the proceedings, promote settlement Summary judgment – Defendant tries to show that even if everything the plaintiff says is true, the case lacks an essential element; therefore the judge should “throw it out”

25. Steps in a trial Voir dire AKA jury selection Can dismiss potential jurors for cause Limited number of peremptory challenges – dismiss juror without cause Plaintiff Opening statement Witness testimony with cross examination Rebuttal evidence Defendant Opening statement Witness testimony with cross examination Rebuttal evidence Closing arguments Plaintiff and defendant Jury instruction Judge instructs as to the relevant law Jury renders a verdict based on the standard of preponderence of evidence ie more likely than not

26. Trial Burden of proof usually lies with the plaintiff Res judicata – Prevents retrial of legally resolved issues – Analogous to double jeopardy Directed verdict – Either party may request this (in their favor) at the close of evidence offered by the opposing party

27. Jury decision can be nullified by a judge Judgment notwithstanding the verdict Jury verdict based on the evidence was unreasonable as a matter of law – Errors of law at trial – Verdict contrary to evidence, inadequate or excessive – Improper or irregular conduct – Discovery of significant new evidence Can grant motion for new trial

28. Defenses against negligence claims Contributory negligence – Plaintiff failed to act reasonably and prudently thus contributing to the injury Comparative negligence – Relative degree of fault assigned between the plaintiff and the defendant Assumption of risk – Plaintiff recognized the danger and assumed the risk

29. Informed consent Must contain – Nature of illness needing intervention – Nature of proposed procedure – Procedure material risks and complications – Probability of treatment success – Alternative treatments with risks/complications – Probable outcome of no treatment

30. Informed consent Two standards in determining if there was adequate information disclosure – Majority rule/reasonable physician standard practices Risks disclosed to a degree commensurate with prevailing practices under similar circumstances – Minority rule/reasonable patient standard Risks disclosed that the reasonable patient would want to know before agreeing to the procedure No protection against legal action

31. Informed consent Performing radiologist has ultimate responsibility Poor patient understanding: most common cause for challenging the quality of a consent Absence of consent = negligence Abandonment if no contingency plans for complications Exceptions to disclosure requirement – Emergencies, patient may request not to know, common knowledge risks

32. Res ipsa loquitur “The thing speaks for itself” Incident cannot occur without negligence Incident cause within the exclusive control of the defendant No possibility of contributory damages Evidence of true cause inaccessible to plaintiff Fact of the injury is evident The burden of proof that negligence did NOT occur lies with the defendant

33. Appeals Losing party files to obtain review by a higher court Limited to a consideration of the rulings by the trial court – Prejudicial error – an error of law which affected the rights of the party Appeal courts tend to be deferential to jury verdicts Appeal bond may be required (expensive!!!!)

34. Alternative dispute resolution “Win-win” scenario more likely, less adversarial, less rigid, private, less $ Mediation – Neutral 3 rd party facilitates communication – Outcome enforced by contract law Arbitration – Proofs and arguments presented to neutral 3 rd party leading to a binding decision