© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Ch 6 Defenses to Liability Suits

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Learning Outcomes 6.1List and define the four Cs of medical malpractice prevention. 6.2Describe the various defenses to professional liability suits. 6.3Explain the purpose of quality improvement and risk management within a health care facility. 6.4 Discuss the five different types of medical liability insurance. 6-2

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Preventing Liability Suits Prevention is preferable to litigating a malpractice suit. Health care practitioners who use reasonable care in preventing professional liability claims are least likely to be faced with defending themselves against such claims. 6-3

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 4 Cs/Medical Malpractice Prevention Caring Communication Competence Charting 6-4

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Using Caring and Competence 6-5

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 7 Common Reasons for Malpractice Cancer misdiagnosis/failure or delay Birth injury/negligent maternity care Wrong diagnosis or misdiagnosis of negligent fracture or trauma Delay in diagnosis or failure to consult in timely manner 6-6

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. 7 Common Reasons for Malpractice Medication errors or medication malpractice from negligent drug treatment Malpractice resulting from physician’s negligent procedures or surgical errors Failure to obtain informed consent 6-7

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Reasons People Sue 6-8

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Actions that Might Prevent Litigation Explanation and apology Correction of the mistake Financial compensation Correct treatment at the time An admission of negligence “Should have been listened to” 6-9

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Actions that Might Prevent Litigation Disciplinary action against medical personnel involved Honesty Investigation by the hospital 6-10

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. What Not to Say After Complications 6-11

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. What People Want/Adverse Effects 6-12

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Communicating with Patients Develop good listening skills. Set aside time of day to advise and call back patients. Thoroughly explain illnesses and procedures. Make sure informed consent forms are signed. Avoid statements admitting guilt. 6-13

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Communicating with Patients Use tact, good judgment and professionalism with patients. Refrain from overly optimistic statements. Advise patients when physicians will be gone for long periods of time. Reach an understanding about fees. 6-14

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Documentation Referrals Missed appointments Dismissals Treatment refusals All other patient contact 6-15

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Types of Defenses Denial of wrongdoing Affirmative defenses –Contributory negligence –Comparative negligence –Assumption of risk –Emergency 6-16

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Types of Defenses Technical defenses Release of tortfeaser Res Judicata Statute of limitations 6-17

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Question Tell whether the following statement is true or false A physician claims that a patient was negligent in following her treatment plan and caused her own injury. This type of defense is known as assumption of risk. True False 6-18

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Answer False A physician claims that a patient was negligent in following her treatment plan and caused her own injury. This type of defense is known as contributory negligence. Assumption of risk is a defense based on the contention that the patient knew of the inherent risks before treatment was performed and agreed to those risks. 6-19

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Conditions for Emergency Defense A true emergency situation existed and was not caused by the defendant The appropriate standard of care was met, given the emergency situation 6-20

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Release of Tortfeasor A technical defense that prohibits a lawsuit against the person who caused an injury (the tortfeasor) if he or she was expressly released from further liability in the settlement of a suit. –The victim cannot sue the physician unless the right to do so was reserved in the release. 6-21

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Res Judicata “The thing has been decided.” –A claim cannot be retried between the same parties if it has already been resolved. 6-22

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Question Tell whether the following statement is true or false. A physician who loses a malpractice suit cannot afterwards sue the patient for breach of contract based on information presented in the trial. True False 6-23

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Answer True A physician who loses a malpractice suit cannot afterwards sue the patient for breach of contract based on information presented in the trial. This defense is called “Res Judicata” (“The thing has been decided.”) 6-24

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Statute of Limitations Vary from state to state Generally specifies one to six years with two years most common –It specifies when the statute of limitations begins –It may be modified for minors or people who are legally insane 6-25

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Risk Management Identifying problem practices or behaviors and eliminating them. Providing written job descriptions Providing office procedure manuals and employee handbooks –Includes charting, scheduling patients, communicating with patients, and writing prescriptions 6-26

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Quality Improvement/Assurance Program to uphold the quality of patient care and reduce liability risk Part of methods used to manage risk –May assume responsibility for compliance with government regulatory agencies 6-27

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Professional Liability Insurance Covers costs of defending a medical malpractice lawsuit up to policy limit –Cost of insurance is based on physician’s specialty and dollar amount of the policy –Usually required to obtain hospital privileges or work in a HMO 6-28

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Medical Malpractice Insurance/Types Claims-made insurance –Covers the insurer only for claims made (not for injury occurring) while policy is in force Occurrence insurance –Covers the insurer for any claims made that occurred while policy is in force regardless of when it occurred 6-29

© 2013 The McGraw-Hill Companies, Inc. All rights reserved. Extended Coverage Insurance Tail coverage Prior acts insurance coverage Self-insurance coverage 6-30