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Legal Issues in the Emergency Department Dr. Nathan Coxford CCFP(EM)

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Presentation on theme: "Legal Issues in the Emergency Department Dr. Nathan Coxford CCFP(EM)"— Presentation transcript:

1 Legal Issues in the Emergency Department Dr. Nathan Coxford CCFP(EM)

2 Outline 1. Litigation in the Canadian ED – Stats, Process 2. Factors that contribute to malpractice litigation – system factors, patient factors, physician factors. 3. What can you do to protect yourself? 4. “Defensive” Medicine

3 Options for aggrieved patients “Patient safety response” “Patient safety response” College complaints College complaints Litigation Litigation

4 College complaints – possible outcomes 1. Complaint can be dismissed 2. Take a course 3. Limit licence The physician may have to pay the costs associated with the investigation.

5 Medical malpractice lawsuits - Canadian Statistics CMPA members CMPA members Last year, there were just under 900 new legal actions raised – so, 1 action for every 80 members per year. Last year, there were just under 900 new legal actions raised – so, 1 action for every 80 members per year.

6 Further… 884 medico-legal actions taken 884 medico-legal actions taken Of those, 88 went to trial Of those, 88 went to trial Of those, 13 went in favor of the plaintif Of those, 13 went in favor of the plaintif

7 Where do we fit in? Emergency physicians outside of Ontario and Quebec (that’s us) - $2,688 yearly Emergency physicians outside of Ontario and Quebec (that’s us) - $2,688 yearly Comparison: Comparison: Ontario/Quebec higher fees (ER $5323, $6576) Ontario/Quebec higher fees (ER $5323, $6576) Obstetrics: $15,396 Obstetrics: $15,396 General Surgery: $5496 General Surgery: $5496 Neurosurgery: $11,676 Neurosurgery: $11,676 Family Medicine: $996 (excluding obs, ER) Family Medicine: $996 (excluding obs, ER)

8 Trend? Decreasing Decreasing 35% fewer actions than 10 years ago 35% fewer actions than 10 years ago However, costs per claim rising – doubled in that period - $ per median cost However, costs per claim rising – doubled in that period - $ per median cost College complaints holding steadier - 37 per 1000 members College complaints holding steadier - 37 per 1000 members

9 Comparison with other countries 0.04 claims per 1000 population in Canada 0.04 claims per 1000 population in Canada USA – 0.18 USA – 0.18 UK 0.12 UK 0.12 Australia 0.12 Australia 0.12

10 Process 70% favorable outcome for members 70% favorable outcome for members 30% unfavorable 30% unfavorable About 10% go to trial About 10% go to trial

11 Medico-legal action Statement of Claim Statement of Claim Statement of Defence Statement of Defence Discovery Discovery Pretrial conference Pretrial conference Trial Trial Appeal Appeal All of this adds up to a long time… like 5-7 years!

12 If you’re on the wrong end of a lawsuit… For the most part, the CMPA pays out For the most part, the CMPA pays out The exception to this is punitive payments – these are things that tend to fall in the gross misconduct realm The exception to this is punitive payments – these are things that tend to fall in the gross misconduct realm

13 Another possible exception… Out of country patients: Out of country patients: CMPA coverage generally applies only to actions brought about on Canadian soil. CMPA coverage generally applies only to actions brought about on Canadian soil. Unless… Governing Law and Jurisdiction Agreement – waiver patient signs which states that if they choose to sue you, they will do it in Canada. Unless… Governing Law and Jurisdiction Agreement – waiver patient signs which states that if they choose to sue you, they will do it in Canada.

14 A little more about the CMPA Big organization Big organization Hundreds of millions in the bank Hundreds of millions in the bank If in trouble… call early If in trouble… call early

15 The Four Elements Four elements must be established or proven for any legal action based upon a claim of negligence to be successful: Four elements must be established or proven for any legal action based upon a claim of negligence to be successful: There must be a duty of care owed toward the patient. There must be a duty of care owed toward the patient. There must be a breach of the duty of care. There must be a breach of the duty of care. The patient must have suffered harm or injury. The patient must have suffered harm or injury. The harm or injury must be directly related or caused by the breach of the duty of care. The harm or injury must be directly related or caused by the breach of the duty of care.

16 Let’s be reasonable “In determining whether a physician has breached a duty of care toward a patient, the courts consider the standard of care and skill that might reasonably have been applied by a colleague in similar circumstances. The appropriate measure is therefore the level of reasonableness and not a standard of perfection.” “In determining whether a physician has breached a duty of care toward a patient, the courts consider the standard of care and skill that might reasonably have been applied by a colleague in similar circumstances. The appropriate measure is therefore the level of reasonableness and not a standard of perfection.”

17 Two ways of looking at this Before: Stopping the legal action before it starts. Before: Stopping the legal action before it starts. After: Making sure you’re cool if you get hit with the subpoena. After: Making sure you’re cool if you get hit with the subpoena. *not mutually exclusive approaches

18 Before This is where you want to focus. This is where you want to focus. Going through a legal action is not a pleasant thing: Going through a legal action is not a pleasant thing:TimeEnergyEmbarrassment

19 Pertinent Factors System factors System factors Patient factors Patient factors *Physician factors *Physician factors

20 The ED Patient Endures long waiting time Endures long waiting time Meets you, the health provider, for probably the first time (rapport?) Meets you, the health provider, for probably the first time (rapport?) Is tired, acutely sick, in an unfamiliar environment Is tired, acutely sick, in an unfamiliar environment Concerned and/or angry families Concerned and/or angry families

21 The System (emergency department) Stressed, tired medical staff Stressed, tired medical staff All day, every day (~80% lawsuits over events that occurred during off hours) All day, every day (~80% lawsuits over events that occurred during off hours) Noisy environment Noisy environment All sorts of distractions All sorts of distractions

22 The Physician Just a crap shoot, right? Just a crap shoot, right? Not exactly Not exactly

23 What we have here is a failure to communicate

24 The literature says… Positive physician communication matters Positive physician communication matters Increases patient’s perception of competence and decreases malpractice claim intentions Increases patient’s perception of competence and decreases malpractice claim intentions

25 Remember way back when You took the LMCC? You took the LMCC? Did you take it between ? Did you take it between ? Independent predictors of increased risk of complaints to regulatory bodies – poor scores on: Independent predictors of increased risk of complaints to regulatory bodies – poor scores on: 1. Clinical decision making 1. Clinical decision making 2. Patient-physician communication 2. Patient-physician communication

26 Levinson et al. Significant differences in communication behaviors of no-claims and claims physicians were identified: Significant differences in communication behaviors of no-claims and claims physicians were identified: No claims physicians used more statements of orientation (educating patients about what to expect and the flow of a visit) No claims physicians used more statements of orientation (educating patients about what to expect and the flow of a visit) Laughed and used humor more Laughed and used humor more More facilitation - soliciting patients' opinions, checking understanding, and encouraging patients to ask questions. More facilitation - soliciting patients' opinions, checking understanding, and encouraging patients to ask questions. A little extra time makes a difference. A little extra time makes a difference.

27 Disclosure We all believe in it (in theory) We all believe in it (in theory) We don’t all do it (in practice) We don’t all do it (in practice) Patients want not just disclosure – genuine apology! Patients want not just disclosure – genuine apology! If no harm, do you still tell? If no harm, do you still tell?

28 Is it all about the Benjamins? Patients taking legal action wanted: Patients taking legal action wanted: Greater honesty Greater honesty Appreciation of the severity of the trauma they had suffered Appreciation of the severity of the trauma they had suffered Assurances that lessons had been learned from their experiences Assurances that lessons had been learned from their experiences Moore et al. Moore et al.

29 If it does go to court Some evidence that the actual amount of the settlement or award has more to do with the severity of the injury than with the degree of negligence. Some evidence that the actual amount of the settlement or award has more to do with the severity of the injury than with the degree of negligence. Brennan – NEJM Brennan – NEJM

30 Tips (Courtesy of the CMPA)

31 Consent TRULY get informed consent: - Common adverse effects - Uncommon but serious adverse effects - Consent must be: - Informed. Voluntary. From a patient with capacity. - What will you be judged on? Would a reasonable person have declined the procedure had they known the risks?

32 If you haven’t got something nice to say, don’t say anything at all. Avoid subjective and disparaging comments relating to the care provided by colleagues and other health care professionals Avoid subjective and disparaging comments relating to the care provided by colleagues and other health care professionals Why? Why? If there’s a lawsuit, you might get dragged into it too If there’s a lawsuit, you might get dragged into it too You might not know the whole story You might not know the whole story

33 Documentation Three keys to good documentation: Three keys to good documentation: Accurate Accurate Objective Objective Legible Legible Be clear. Particularly when you’re unsure of the diagnosis. Give clear discharge instructions – make sure you speak with the patient and put it on the chart.

34 Problem areas Most litigation centers around diagnosis Most litigation centers around diagnosis Red flag - repeat customers Red flag - repeat customers Handover – lots of mistakes made here – person who ordered the tests most responsible! Handover – lots of mistakes made here – person who ordered the tests most responsible! Communication between ER doc and the consultant - document Communication between ER doc and the consultant - document

35 Radiology Common area of concern Common area of concern Order the right test, take the time to look through it, call the radiologist if unsure Order the right test, take the time to look through it, call the radiologist if unsure ?System in place to manage discordant radiologic diagnoses between ER doc and radiologist – Espinosa et al. ?System in place to manage discordant radiologic diagnoses between ER doc and radiologist – Espinosa et al.

36 What about us (your friendly neighbourhood resident?) Fear of litigation in relationship to teaching behaviours may lead to less autonomy, less procedures, more staff notes. Fear of litigation in relationship to teaching behaviours may lead to less autonomy, less procedures, more staff notes. (Reed et al.) (Reed et al.)

37 Responsibility of supervising physicians Is the task appropriate to delegate to an individual with the trainee’s level of training? Is the task appropriate to delegate to an individual with the trainee’s level of training? Does this specific trainee have the required knowledge, skill and experience to perform the task? Does this specific trainee have the required knowledge, skill and experience to perform the task? What degree of supervision is required? What degree of supervision is required? Has the patient been informed of the educational status of the trainee? Has the patient been informed of the educational status of the trainee?

38 Responsibility of trainees Recognize the limits of their knowledge. Recognize the limits of their knowledge. Exercise caution and consider their inexperience. Exercise caution and consider their inexperience. Notify their supervisors of their knowledge, skill and experience with the delegated task. Notify their supervisors of their knowledge, skill and experience with the delegated task. Keep the supervisor informed of their actions. Keep the supervisor informed of their actions. Inform patients of their status as medical trainees. Inform patients of their status as medical trainees.

39 Dealing with Uncertainty The Low Probability – High Morbidity Condition The Low Probability – High Morbidity Condition How far do you go? Must have an acceptable miss rate, but where we draw that line is variable How far do you go? Must have an acceptable miss rate, but where we draw that line is variable Schriger et al. Schriger et al.

40 Defensive Medicine Malpractice fear - significant variability in ED decision making Malpractice fear - significant variability in ED decision making Associated with increased hospitalization (9%) of low risk patients and increased use of diagnostic tests Associated with increased hospitalization (9%) of low risk patients and increased use of diagnostic tests Katz et al.

41 Defensive medicine cont’d Duty to: Duty to: The patient The patient Society Society Yourself (the responsible physician) Yourself (the responsible physician)

42 Summary Chances of getting sued are actually pretty low (but it’s not something you want to go through). Chances of getting sued are actually pretty low (but it’s not something you want to go through). The sage advice of a trainee with limited clinical and no litigation experience: The sage advice of a trainee with limited clinical and no litigation experience: Be a competent doctor. Make sure your records show that you’re a competent MD Be a competent doctor. Make sure your records show that you’re a competent MD Be a decent human being – treat your patients with respect, honesty, humour. Be a decent human being – treat your patients with respect, honesty, humour.

43 For more information CMPA road show October 28 th here in Cowtown. CMPA road show October 28 th here in Cowtown. CAEP with CMPA before the family medicine forum. CAEP with CMPA before the family medicine forum. Ross Beringer, ER doc, speaking. Ross Beringer, ER doc, speaking.

44 Let’s imagine 35 year old woman with a headache. Gets these headaches on a regular basis, has been to multiple doctors, they’ve all told her that these are migraines. Neurological exam is normal, no alarm features. She wants a CT scan. She casually mentions to her nurse that her husband is a lawyer.

45 CMPA case studies 58 year old obese man with back pain of 4 days duration, radiating to both lower quadrants. No physical findings aside from mildly elevated blood pressure. Normal AXR and CBC. 58 year old obese man with back pain of 4 days duration, radiating to both lower quadrants. No physical findings aside from mildly elevated blood pressure. Normal AXR and CBC.

46 Case study 2 35 year old guy with fever, peri-umbilical, flank pain, severe. 35 year old guy with fever, peri-umbilical, flank pain, severe. Gunk in urine Gunk in urine Ultrasound normal Ultrasound normal Sent home with Abx. for pyelonephritis. Sent home with Abx. for pyelonephritis. Comes back next week with a perforated appendix. Messy, long ICU stay afterward. What went wrong? Comes back next week with a perforated appendix. Messy, long ICU stay afterward. What went wrong?

47 References 1. Reducing Legal Risk by Practicing Patient Centered Medicine. Forster, et al. Archives of Internal Medicine Reducing errors made by emergency physicians in interpreting radiographs : a longitudinal study. Espinosa et al. BMJ Relation between negligent adverse events and the outcomes of medical malpractice litigation. Brennan et al. NEJM Dec Monetary and nonmonetary accountability following adverse medical events: options for Canadian patients. Gray, Beilty – CMAJ Oct Medical malpractice: the effect of doctor-patient relations on medical patient perceptions and malpractice intentions. Moore et al. West Journal of Medicine – Oct Epidemiology of medical error – BMJ March Myth: Medical Malpractice lawsuits plague Canada. Canadian Health Services Research Foundation: Mythbusters 8. Emergency Physicians’ Fear of Malpractice in Evaluating Patients with Possible Acute Cardiac Ischemia. Katz et al. Annals of Emergency Medicine. Dec 2005

48 More References 9.Decisions, Decisions: Emergency Physician Evaluations of Low Probability – High Morbidity Conditions. Schriger et al. Annals of Emergency Medicine Dec Standards for clinical evaluation and documentation by the emergency medicine provider. Selbst. Pediatric Radiology Content analysis of patient complaints. Montini, Noble, Stelfox. International Journal for Quality in Health Care CMPA Annual Report Physician Scores on a National Clinical Skills Examination as Predictors of Complaints to Medical Regulatory Authorities. Tamblyn et al. JAMA Sept Disclosing medical errors to patients – status report Levinson. CMAJ July Do Fears of Malpractice Litigation Influence Teaching Behaviors? Reed et al. Teaching and Learning in Medicine July 2008.


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