PRESENTATION TO GRAND ROUNDS SEPTEMBER 30, 2009 Timothy J. Ryan, MBA, JD, FACHE Senior Vice President/Associate General Counsel Physician Network Development And Practice Management

COVER 3 SUBJECTS 1. Describe Medical Malpractice 2. Describe the Anatomy of a Lawsuit 3. Discuss Some Risk Management Basics

MALPRACTICE Malpractice is a tort of negligence which requires 4 elements: 1. Duty 2. Breach of Duty 3. Damages 4. Causation

DUTY When does Duty commence?  Accepting a person as a patient  Undertaking to examine or treat a patient  An agreement to be on-call

DUTY (CONT’D) What Duty is owed? Health Care professionals have a duty to exercise the same degree of skill exercised by others in the same profession or specialty of ordinary learning, judgment or skill under the same or similar circumstances.

BREACH Established by expert testimony. Expert must specialize in the same specialty as defendant. “More likely than not” standard.

DAMAGES  Plaintiff must prove that chance to obtain a better result must be greater than 50%.  A finding of liability does not necessitate damages  Cannot obtain damages for emotional distress without a finding of some objective physical consequence.

ECONOMIC DAMAGES  Lost wages  Medical expenses  Replacement services  Attendant care expenses

NON-ECONOMIC DAMAGES  Denial of social pleasure  Pain and suffering  Loss of companionship  Punitive damages not allowed unless defendant acted maliciously  Since 1994, Michigan has cap on non- economic damages $400,000 $700,000 Loss of limb Impaired cognition Loss of reproductive capacity

CAUSATION  Plaintiff must establish, through expert testimony, that “but for” defendant’s negligence, plaintiff’s injury would not have occurred.  Opportunity to survive or obtain better result, plaintiff must show there was greater than a 50% chance of survival or better result.

ANATOMY OF A MEDICAL MALPRACTICE LAWSUIT 1. File complaint – must be “reasonably specific” Must have affidavit of merit signed by an expert 2. Answer complaint Defenses Denial Statute of Limitations (2 years) Governmental Immunity Comparative Negligence – plaintiff’s failure to comply, reduces award

DISCOVERY  Medical Records  Interrogatories  Depositions  Requests to Admit  Motion Practice

CASE EVALUATION  Trial

MALPRACTICE INSURANCE - GENERALLY 1. Limits Per claim Annual aggregate 2. Occurrence vs. Claims Made Gaps

RISK MANAGEMENT Four C’s Compassion Communication Competence Charting Three A’s Accessibility Affability Ability