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

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Presentation on theme: "Medical Malpractice Risk Management R. Monty Cary PA-C, M.Ed., DFAAPA Senior Partner Cary Associates, LLC."— Presentation transcript:

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

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

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

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

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

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

10 In The Court Room You’re Like A DuckOutOf Water.

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

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

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

14 Common Sense Risk Management Strategies

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

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

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

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

19 Medical Malpractice Cost $17,000 - $25,000 for an Out- of-Court Settlement $17,000 - $25,000 for an Out- of-Court Settlement $75,000 - $112,000 to take it to verdict. $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 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 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 Must prove that the provider was the “Cause-In-Fact” of the patients injury

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

27 Injuries / Damages General – Intangible Losses – Pain – Suffering – Emotional Distress General – Intangible Losses – Pain – Suffering – Emotional Distress Punitive Damages – Fraudulent Punitive Damages – Fraudulent Case 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?. 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 Bank Sept 1, 1990 to Oct 11, 2008 Physicians (All)254,678 Physician Assistants 1,299 Nurse Practitioners 812 Nurses 4,459

34 National Practitioner Data Bank Sept 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 Statistics Physician Assistants 135 Payments for 2004 Average = $180,787.00 Average = $180,787.00 63 Misdiagnosis 40 Treatment Errors 15 Medication Errors 6 Failure to Monitor 6 Failure to Monitor 5 Surgical Errors 5 Surgical Errors 3 Miscellaneous 3 Miscellaneous 1 OB 1 OB 1 Equipment Failure 1 Equipment Failure 1 IV / Blood Products Related 1 IV / Blood Products Related

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

37 2006 NPDB Statistics Physician 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 Statistics Physician Assistants 94 Payments for 2007 Average = $90,875.00 45Diagnosis Related 24Treatment Related 11Medication Related 5Surgery Related 4Monitoring Related 2 Other 2Obstetrics Related 1Anesthesia 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” “The Witness Whose Memory Never Fades”

46 Serves Three Purposes 1.Reminds the healthcare professional what s/he has done for and to the patient. 2.Alerts other healthcare professionals what has been done for and to the patient. 3.It is a LEGAL RECORD.

47 S.O.A.P.E.R. S – Subjective S – Subjective O – Objective O – Objective A – Assessment A – Assessment P – Plan P – Plan E – Patient Education E – Patient Education R – Reaction to Patient Education. EBI 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 the knee amputation. “Patient had a pabst beer today” – A pap smear. “The patient was found in the bathroom without a purse”. – Without a pulse.

51 Documentation Dictating Easiest and best way to document Eliminates the hassle of writing messages on slips of paper Encourages a more complete note

52 Documentation Dictating Phone conversations are less burdensome. Reduces the risk of communications being over looked. 175 words dictated vs. 87 words written.

53 Legibility If the note is written, it must be Legible Case

54 Legibility Texas Cardiologist / Pharmacist Rx Isordil 20 mgs Q 6 H Pharmacist filled with Plendil – max daily does of 10 mgs Resulted in an MI and eventually death

55 Legibility Court found Physician’s illegible handwritten prescription the cause First verdict finding a physician culpable solely due to poor penmanship Each paid $225,000.00.

56 Professionalism and Documentation Go Hand – In – Hand

57 Physician “If the nurses around this hospital would read the medication orders, we wouldn’t have medical emergencies like this one”

58 Nurses “If the physicians around this hospital would learn to write so we could read it, there wouldn’t be medication emergencies like his one”.

59 Do Not ALTER The Record SLIDE SL – Single Line through the entry I – Initial the late entry as an Error D – Date the entry E – Note “ERROR” in the area.

60 Documentation Single Black Female seeks male companionship, ethnicity unimportant. I am good looking and love to play. I love long walks, riding in your pick-up truck, hunting, camping, fishing and cozy nights lying by the fire. The right person will have me eating out of their hand. Rub me the right way and watch me respond. I will meet you at the door when you come home. I’m yours. Call 404-875-6240 and ask for Daisy.

61 Atlanta Humane Society

62 Communications

63 Although you will not find POOR COMMUNICATIONS listed anywhere as an official cause of MEDICAL MALPRACTICE CLAIMS, it underlies almost every malpractice action. Contributing factor is 80%.

64 Communications It 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

65 Confidentially HIPAA – Health Insurance Portability & Accountability Act of 1996 – April 14, 2003 Office Pharmacy EVERYWHERE! Hospital Clinic

66 Confidentially 32 YO/WF who was not feeling well Went to see her Family Physician A pregnancy test was done Pt instructed the doctor not to even tell her husband the results of the test Mother-in-Law wanted to know ! Laboratory worker told results.

67 E-Mails Considered a business document Considered a business document Can be subpoenaed Can be subpoenaed Subject to Discovery Subject to Discovery Civil / Criminal proceedings Civil / Criminal proceedings

68 E-Mails No longer in your control once it is sent No longer in your control once it is sent Sensitive information Sensitive information STOP and THINK before you SEND. STOP and THINK before you SEND.

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70 Tampering Alert Signals Asking For Original Records Missing Medical Records Records Conflict With Patients Testimony Different Ink on Single Entry Different Handwriting.

71 Tampering Alert Signals Handwriting too neat Late entry or out of sequence Additions to the chart Erased – Obliterated – White Out Long dictated or hand written when usually “One-Liners”.

72 Tampering Alert Signals Dictating Weeks / Months After Patient is Seen Medical Malpractice cases have been won and lost on the issues of tampering.

73 Implications For The Plaintiff Will strengthen the case Will strengthen the case Appears to be Dishonest / Deceitful Appears to be Dishonest / Deceitful Will make a Good Case Better Will make a Good Case Better Will make a Poor Case Good Will make a Poor Case Good Plaintiff’s Attorney is in Control. Plaintiff’s Attorney is in Control.

74 Implications For The Plaintiff Seen as a “Cover Up” by The Jury Plaintiff is Awarded Punitive Damages Can Be in The Millions Case in point Juries Response is ANGER.

75 Implications For The Defendant “KISS OF DEATH” “KISS OF DEATH” Impossible to Defend Impossible to Defend Almost Certain to Settle Almost Certain to Settle Stops Your Power to Bargain Stops Your Power to Bargain MAYNOT be Covered by Medical Malpractice Insurance – Fraud!. MAYNOT be Covered by Medical Malpractice Insurance – Fraud!.

76 Implications For The Defendant Defendant Will Lose Creditability Other Defendants Will Be Implicated May Lose Your License – Criminal Offense.

77 Why Patients Don’t Sue Takes Too Long Takes Too Long Too Little Value Too Little Value The Doctor is A Friend The Doctor is A Friend

78 Thank You & Enjoy The Conference

79 The End

80 12 Suggestion to keep in mind when being sued 1. No one cares as much about the case as you do. 2. Make sure your attorney is the best money can buy. 3. Your responsibility is to educate the attorney on the medical aspects involved in the case.

81 12 Suggestions 4. A deposition is easier than the NCCPA Board Exam 5. Don’t volunteer information to the opposition, answer only the question given. 6. Ask about any legal proceeding you don’t understand.

82 12 Suggestions 7. Don’t underestimate the plaintiff’s attorney. 8. Don’t argue with the plaintiff's attorney. 9. Accept support from colleagues, friends and patients.

83 12 Suggestions 10. If there is a good chance of loosing – Settle 11. Know your deposition when you go to trail. 12. Your spouse is going through hell as well, be kind to them.

84 You Have A Great Conference

85 The End

86 Questions Question 1 Developing risk management strategies in your practice can: 1.Reduce medical liability exposure 2.Provide better care for the patient 3.Provide a better organized office operation 4.Fewer chances of important details to fall through the cracks 5.All of the above

87 Questions Question 2 Your reaction to a medical malpractice law suit are: 1.You are distraught 2.Your not going to be able to practice like you would like to. 3.Your not going to be able to focus on patients like you would like to 4.The very idea of someone questioning your ability 5.All of the above

88 Questions Question 3 The Discovery Rule states that the: 1.Average claim takes about 22 months to be reported after a medical incident 2.Statute of limitations does not begin to run until the happenings of the event puts the plaintiff on notice 3.Courts should not be faulted for blameless ignorance 4.All of the above

89 Questions Question 4 All of the following except are elements of a medical malpractice law suit: 1.Duty 2.Breach 3.Blameless Ignorance 4.Causation 5.Injury – Damage

90 Questions Question 5 True or False – The Duty to care arises from the provider-patient relationship that is an implied contract: 1.True 2.False

91 Questions Question 6 The National Practitioner Data Bank was the inception of: 1.The Health Care Quality Improvement Act of 1986 2.NSR 725-62 3.Health Insurance Portability & Accountability Act of 1996 4.CME – 6082 - 2005

92 Questions Question 7 In a medical malpractice law suit, the most difficult element to prove is: 1.Duty 2.Breach 3.Causation 4.Injury

93 Questions Question 8 The medical record has been known as: 1.The witness whose memory never fades 2.A legal record 3.What you will do for and to the patient 4.What has been done to and for the patient

94 Questions Question 9 Dictating the medical record is the: 1.Easiest and best way to document 2.Eliminates the hassle of writing messages on slips of paper 3.Encourages a more complete note 4.All of the above

95 Questions Question 10 All of the following except are a communication success: 1.Careful to explain what you are doing 2.Encourage you patient to talk more 3.Spend less than 15 minutes with the patient 4.Use more humor and laughed more 5.All of the above

96 Answers 1. 5 2.5 3.2 4.3 5.1 6.1 7.3 8.1 9.4 10.3

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98 Before you return from your business trip, I just want to let you know about the small accident I had with the pick up truck when I turned into the driveway. Fortunately, not too bad and I really didn't get hurt, so please don't worry too much about me. I was coming home from Wal-Mart, and when I turned into the driveway I accidentally pushed down on the accelerator instead of the brake. The garage door is slightly bent, but the pick up fortunately came to a halt when it bumped into your car. I am really sorry, but I know with your kind-hearted personality you will forgive me. You know how much I love you and care for you my sweetheart. I am enclosing a picture for you. I cannot wait to hold you in my arms again. Your loving wife. XXX

99 PS. Your girlfriend called......................

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106 . During a patient's two week follow-up appointment with his Cardiologist, he > > informed me, his doctor, that he was having trouble with One of his me > > dications. > > 'Which one?' I asked. > > 'The patch, the nurse told Me to put on a new one every six hours and now I'm > > running out of places To put it!' > > I had him quickly undress and discovered what I hoped I W ouldn't see. > > Yes, the man had over fifty patches on his body! Now, the Instructions > > include removal of the old patch before applying a new one. > > Submitted by Dr. Rebecca St. Clair, Norfolk, VA

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