Presentation on theme: "Legal Issues in the Emergency Department"— Presentation transcript:
1 Legal Issues in the Emergency Department Dr. Nathan CoxfordCCFP(EM)
2 Outline Litigation in the Canadian ED – Stats, Process Factors that contribute to malpractice litigation – system factors, patient factors, physician factors.What can you do to protect yourself?“Defensive” Medicine
3 Options for aggrieved patients “Patient safety response”College complaintsLitigation
4 College complaints – possible outcomes Complaint can be dismissedTake a courseLimit licenceThe physician may have to pay the costs associated with the investigation.
5 Medical malpractice lawsuits - Canadian Statistics 75000 CMPA membersLast 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 Of those, 88 went to trial 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 yearlyComparison:Ontario/Quebec higher fees (ER $5323, $6576)Obstetrics: $15,396General Surgery: $5496Neurosurgery: $11,676Family Medicine: $996 (excluding obs, ER)
8 Trend? Decreasing 35% fewer actions than 10 years ago However, costs per claim rising – doubled in that period - $ per median costCollege complaints holding steadier - 37 per 1000 members
9 Comparison with other countries 0.04 claims per 1000 population in CanadaUSA – 0.18UK 0.12Australia 0.12
10 Process 70% favorable outcome for members 30% unfavorable About 10% go to trial
11 Medico-legal action Statement of Claim Statement of Defence Discovery Pretrial conferenceTrialAppealAll 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 outThe 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: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.
14 A little more about the CMPA Big organizationHundreds of millions in the bankIf in trouble… call early
15 The Four ElementsFour 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 breach of the duty of care.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.
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.”
17 Two ways of looking at this Before: Stopping the legal action before it starts.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. Going through a legal action is not a pleasant thing:TimeEnergyEmbarrassment
24 The literature says… Positive physician communication matters Increases patient’s perception of competence and decreases malpractice claim intentions
25 Remember way back when You took the LMCC? Did you take it between ?Independent predictors of increased risk of complaints to regulatory bodies – poor scores on:1. Clinical decision making2. Patient-physician communication
26 Levinson et al.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)Laughed and used humor moreMore facilitation - soliciting patients' opinions, checking understanding, and encouraging patients to ask questions.A little extra time makes a difference.
27 Disclosure We all believe in it (in theory) We don’t all do it (in practice)Patients want not just disclosure – genuine apology!If no harm, do you still tell?
28 Is it all about the Benjamins? Patients taking legal action wanted:Greater honestyAppreciation of the severity of the trauma they had sufferedAssurances that lessons had been learned from their experiencesMoore et al.
29 If it does go to courtSome 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
31 Consent TRULY get informed consent: Common adverse effects Uncommon but serious adverse effectsConsent 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 professionalsWhy?If there’s a lawsuit, you might get dragged into it tooYou might not know the whole story
33 Documentation Three keys to good documentation: Accurate Objective LegibleBe 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 Red flag - repeat customersHandover – lots of mistakes made here – person who ordered the tests most responsible!Communication between ER doc and the consultant - document
35 Radiology Common area of concern 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.
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.(Reed et al.)
37 Responsibility of supervising physicians 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?What degree of supervision is required?Has the patient been informed of the educational status of the trainee?
38 Responsibility of trainees Recognize the limits of their knowledge.Exercise caution and consider their inexperience.Notify their supervisors of their knowledge, skill and experience with the delegated task.Keep the supervisor informed of their actions.Inform patients of their status as medical trainees.
39 Dealing with Uncertainty The Low Probability – High Morbidity ConditionHow far do you go? Must have an acceptable miss rate, but where we draw that line is variableSchriger et al.
40 Defensive MedicineMalpractice fear - significant variability in ED decision makingAssociated with increased hospitalization (9%) of low risk patients and increased use of diagnostic testsKatz et al.
41 Defensive medicine cont’d Duty to:The patientSocietyYourself (the responsible physician)
42 SummaryChances 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:Be a competent doctor. Make sure your records show that you’re a competent MDBe a decent human being – treat your patients with respect, honesty, humour.
43 For more information CMPA road show October 28th here in Cowtown. CAEP with CMPA before the family medicine forum.Ross Beringer, ER doc, speaking.
44 Let’s imagine35 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 studies58 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 235 year old guy with fever, peri-umbilical, flank pain, severe.Gunk in urineUltrasound normalSent home with Abx. for pyelonephritis.Comes back next week with a perforated appendix. Messy, long ICU stay afterward. What went wrong?
47 ReferencesReducing Legal Risk by Practicing Patient Centered Medicine. Forster, et al. Archives of Internal Medicine 2002Reducing errors made by emergency physicians in interpreting radiographs : a longitudinal study. Espinosa et al. BMJ 2000.Relation between negligent adverse events and the outcomes of medical malpractice litigation. Brennan et al. NEJM Dec 1996.Monetary and nonmonetary accountability following adverse medical events: options for Canadian patients. Gray, Beilty – CMAJ Oct 2006Medical malpractice: the effect of doctor-patient relations on medical patient perceptions and malpractice intentions. Moore et al. West Journal of Medicine – Oct 2000Epidemiology of medical error – BMJ March 2000Myth: Medical Malpractice lawsuits plague Canada. Canadian Health Services Research Foundation: MythbustersEmergency Physicians’ Fear of Malpractice in Evaluating Patients with Possible Acute Cardiac Ischemia. Katz et al. Annals of Emergency Medicine. Dec 2005
48 More References9.Decisions, Decisions: Emergency Physician Evaluations of Low Probability – High Morbidity Conditions. Schriger et al. Annals of Emergency Medicine Dec 2005.10. Standards for clinical evaluation and documentation by the emergency medicine provider. Selbst. Pediatric Radiology 2008.11. Content analysis of patient complaints. Montini, Noble, Stelfox. International Journal for Quality in Health Care 2008.12. CMPA Annual Report 2008.13. Physician Scores on a National Clinical Skills Examination as Predictors of Complaints to Medical Regulatory Authorities. Tamblyn et al. JAMA Sept 2007.14. Disclosing medical errors to patients – status report Levinson. CMAJ July 200715. Do Fears of Malpractice Litigation Influence Teaching Behaviors? Reed et al. Teaching and Learning in Medicine July 2008.