Avoiding Medal-Legal Pitfalls

1. Avoiding Medal-Legal Pitfalls Tom Staiger, MD Medical Director, UWMC

2. Case 1-Malpractice A 44 yo woman presents to your clinic with abdominal pain. You have followed her in clinic for years for her primary care. Before seeing her you flip through the chart and note an abnormal pap smear obtained by you 1 � years before, at her last visit. The report sites �numerous atypical squamous cells, cannot rule out high-grade squamous intra-epithelial lesion�. There is a hand written note on the report that says �call patient� but there is no other information in your records. On exam there is an obvious cervical mass, and abdominal tenderness. You suspect advanced cervical cancer. What do you tell the patient? What are your next steps?

3. Definitions Duty Professional responsibility to care for a patient Professional Negligence (Failure to meet the Standard of Care) The failure to exercise the care that a reasonably prudent physician usually exercises For physicians of similar training, under similar circumstances

4. Medical Malpractice 1. Demonstrate a duty to care for the patient 2. Show that the physician failed to meet the standard of care (i.e. was negligent) 3. Show that there was an injury 4. Prove that the physician�s negligence caused the injury

5. Case 1 44 y.o. woman with probable cervical cancer What to do: Take care of the patient first. Perform a pap smear. Refer to a Gynecologist. Talk with your supervising physician and call the risk manager. Sit down with the patient and explain what happened. Continue to provide care for the patient unless someone else takes over

6. Other Types of Professional Negligence Failure to diagnose Failure to warn a patient or others Example: failure to warn about risks of Hep B transmission to a sexual partner Failure to refer or consult when indicated Treating without indication Breaching confidentiality

7. Other Types of Professional Negligence (cont.) Abandonment Being unavailable without replacement Warranty (Promise) Don�t Guarantee a Result or outcome Lack of Informed Consent Based on your judgment what the reasonable patient would want to know Not only surgery patients

8. Case 2-Confidentiality You see a 55 y.o. male school bus driver in your clinic for follow-up of his hypertension. During the exam you note the distinct odor of alcohol on his breath. He answers affirmatively to 3 of 4 CAGE screening questions. After you confront him about his alcoholism, he admits that he has been drinking heavily, having black outs and has been driving his school bus while intoxicated. You offer to arrange urgent treatment and tell him that he should not drive. You also ask him to inform his employer. He refuses your requests. What do you do?

9. Mandatory Reporting (WA) 1. Suspected abuse (including financial) of a child or vulnerable adult 2. Injuries sustained by a deadly weapon 3. Coroner�s cases 4. Reportable infectious diseases (e.g.. TB, STD�s, menigococcus, infectious diarrhea, AIDS, etc.) Lab generally reports, but physician is responsible for reporting Reportable diseases are on WA Dept of Health website

10. Permissible Reporting (WA) Duty to Warn Extension of statutory duty to protect the patient, any identifiable threatened person, or others in the community from reasonably foreseeable harm Privacy law exemption If the health care provider reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the patient or any other individual

11. Case 2 Bus driver with alcohol abuse There is no requirement to report impaired bus drivers in WA, and no immunity for disclosure. You need advice, ideally in writing. Likely you would be advised to tell the patient of your concerns, offer voluntary self-reporting and treatment. �Minimum necessary� disclosure may be permissible. If you disclosed and were sued by the bus driver, private malpractice insurance might not cover the costs.

12. Case 3-Consent A 20 yo student at the local college is brought into the ED by his roommate. The roommate reports that the patient has type 1 diabetes. For the past 3 days the patient had fevers, chills and a cough. The patient�s family lives in a distant city and the roommate does not have any contact information. On exam the patient is unarousable. The BP is 60/palp, heart rate 145, temperature of 39 C, and 02 sat of 71% on room air. Chest x-ray shows bilateral infiltrates consistent multilobar pneumonia. The nurses are unable to obtain IV access, you prep for an urgent subclavian central line.

13. Case 3-Consent (cont.) During the procedure the patient suffers a pneumothorax. His BP and Sat�s fall precipitously. A code is called, but despite aggressive resuscitative measures the patient dies in the ED. Two months later his family files a claim against you and the medical center alleging that you did not obtain consent for procedure, and that neither the patient or family would have consented to the procedure if they had known the risks. What is your risk in this situation?

14. Informed Consent Informed consent is a discussion between the health care provider and the patient that facilitates the patient�s understanding of: their illness the treatment or procedure needed the benefits of the treatment or procedure the risks other types of treatment option, including non-treatment and their risks and benefits This happens before the consent form is signed. Make sure you make an additional note describing the conversation.This happens before the consent form is signed. Make sure you make an additional note describing the conversation.

15. Who Gives Informed Consent? (WA) Where medical treatment is required for an adult patient who is unable to give informed consent, consent may be given by the following classes in order of priority: Patient�s legal guardian, if they have the power to make healthcare decision An individual to whom the patient has given durable power of attorney that includes healthcare decisions The patient�s spouse Adult children of the patient - if unanimous Parents of the patient - if unanimous Adult siblings of the patient - if unanimous WA State LawWA State Law

16. Who Gives Informed Consent? (WA) Age =18 Married to a spouse aged 18 or married to a minor if emancipated Age = less than 18 and emancipated Age = 14 or older for exam or treatment of STD�s Age = 13 or older for care/treatment of OP mental illness (IP requires parental consent/notification) Age = 14 or older for exam/treatment for drug or alcohol abuse (IP requires parental consent WA State LawWA State Law

17. Consent for Reproductive Healthcare (WA) Pregnancy and reproductive health care �no articulated age May consent to voluntary termination of pregnancy, care related to pregnancy, and care related to birth control provided that the minor is capable of giving informed consent

18. Emergency exception (WA) If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, the patient�s consent to required treatment will be implied.

19. Case 3 20 y.o. with a pneumothorax following a subclavian line The care was appropriate The issue will be one of consent It will also be one of documentation How this case turns out, depends on what you did and how well you�ve documented your actions. If you tried and failed to reach his family, and/or documented the emergent nature of the procedure, then you will likely be fine.

20. Case 4-Decision Making Capacity 32 y.o. male with a hx of IVDU admitted for fever and a new murmur. Blood cultures, are drawn, an echo is ordered, a central line is placed and he is started on antibiotics. On hospital day 2 you see him in street clothes standing by the elevator. He is agitated and says he is leaving. When you ask him why he wants to leave, he says, �I need to get out of here� and steps toward the elevator. His central line is visible in his neck. What do you do?

21. Assessing Decision Making Capacity (Competence) A Consent Issue If competent, an adult must give his/her own consent for care Competence is defined inconsistently in Washington statutes There is a legal presumption that a person is competent This presumption is rebuttable

22. Decision Making Capacity (Competence) To be capable of informed consent, a patient must have the ability to understand the nature of their condition, the risk and benefits of treatment or non-treatment and the ability to make a reasoned decision (not necessarily a wise decision) based upon this information.

23. Methods for Assessing Consent Capacity May utilize "Mini-mental Status Exam" to help ascertain whether the patient has a cognitive impairment If you believe a patient is incapacitated, may seek a second opinion from another physician Psych consult: request assessment of cognitive function Document the method used to assess the patient's decision-making capabilities and the results

24. When can the patient be held? May restrain for MHP evaluation if impairment is thought to meet criteria for involuntary mental health treatment Secondary medical care then allowed May restrain for medical care if cognitive impairment is thought to be organic, AND is thought to be making patient incapable of informed consent, AND requires urgent or emergent medical treatment

25. Case 4 32 yo with IVDU attempting to leave with a central line Attempt to persuade patient to comply with treatment plan (use patient care agreement) or at least to allow removal of the line You may restrain the patient (with assistance) until the presence of cognitive impairment can be determined Otherwise Document refusal of treatment Obtain written informed refusal if possible

26. Case 5-Documentation You are paged urgently to the OB floor. One of your primary care patients, an 18 yo woman is in premature labor. The patient has a h/o drug use and is trying to leave the ward AMA. You, the OB and the nurses try to persuade her to stay for the sake of her child. She refuses and leaves the ward. The child is born prematurely and suffers significant neurologic injury. 20 years later, you and the OB are sued by the child�s guardian for failing to prevent this tragedy. What will be the biggest determinate in this case?

27. Writing In the Medical Record Date and time all entries Sign every entry with your name and professional title Legibility is a priority Accurate and objective The purpose of the medical record is to provide a record of all the elements involved in the medical care over a particular time. This information belongs to the patient. The medical record, assembled in a sequenced format, should allow any subsequent reader, whether immediately, or at any time interval in the future, to reconstruct completely what transpired at the time the medical care was provided. The purpose of the medical record is to provide a record of all the elements involved in the medical care over a particular time. This information belongs to the patient. The medical record, assembled in a sequenced format, should allow any subsequent reader, whether immediately, or at any time interval in the future, to reconstruct completely what transpired at the time the medical care was provided.

28. Documenting an Adverse Event Don�t assign cause or blame and don�t criticize another�s care, avoid jousting Do not chart �risk management notified� or �an incident report filed�

29. Case 5 Lawsuit 20 years after premature delivery Children can sue up to 3 years after they attain the age of majority (18 yo). The biggest determinant in this case will be the medical record. Who will be able to recall with clarity what happened those many years ago. If you took the time to document your interactions with the patient, you will likely be fairly safe. If nothing was documented, you may have a major problem.

30. Case-6 Malpractice Risk Factors You have just completed an interview with a physician who would like to join your group. You know him from interactions at the hospital. He is very productive. He is fine with his MD colleagues, but he can be gruff and condescending to the nurses. He often fails to return phone calls. The hospital has had a number of complaints about him from patients. How would your risk manager like him?

31. Negligent Events in  Hospitalized Patients Harvard Medical Practice Study (1991) Reviewed 30, 121 admissions 1.01% had negligence related injuries 0.16% had serious injuries Utah/Colorado (2000) Methodology similar to Harvard study 15,000 admissions Negligence related injuries 0.80% (Colorado) and 0.94% Utah Adverse drug events-19% of all adverse events (35% negligent)

32. Risk Factors for Malpractice Of 280 patients in the Harvard study with an adverse negligent event, only 8 pursued litigation. Utah/CO study 4 suits out of 130 negligent events. Patient factors associated with a suit Anger/revenge Perceived lack of caring Serious injuries, esp. to young or those with dependents Higher socioeconomic status In one study 63% of claims were for minor and/or emotional issues.

33. Physicians and Malpractice Physician characteristics associated with an increased risk of malpractice suit Male Surgical subspecialty ER coverage Hx of patient complaints to medical board or frequent complaints to the practice Board certification (surgical, not medical) Factors associated with decreased risk Female Good communication skills Satisfaction with practice arrangement

34. Ways to Minimize Risk Exposure Keep up to date. Treat only within your area of expertise. Don�t hesitate to consult and/or seek other opinions if uncomfortable, especially if the stakes are high. Beware the frequent flyer without a diagnosis Communicate effectively with patients regarding treatment plans and follow-up Document thoroughly. NEVER alter the medical record.

35. Ways to Minimize Risk Exposure Be cautious with unfamiliar medications. Write legible prescriptions Get good informed consent-document. Foster teamwork Maintain confidentiality Don�t be afraid to say, �I�m sorry this happened.� Partner with your Risk Manager when necessary

36. Claim Trends by Specialty Internal medicine � failure to diagnose breast CA, failure to diagnose lung CA, failure to diagnose MI Emergency medicine � failure to diagnose MI, failure to diagnose spinal fractures, failure to diagnose appendicitis Cardiology � diagnosis of MI, medical management of anticoagulants Dermatology � failure to diagnose skin cancer, improper treatment of psoriasis

37. Preventing Diagnosis-related Claims Make certain test results are reported to the patient before filing Ensure patients have recommended tests/consultations. Make a reasonable effort to contact patients, inform them of the potential consequences of non-compliance, and document this. Develop a system for tracking test results & consultation reports not received Have medical records available during telephone calls Document telephone communications

38. JAMA, 2/19/97-Vol 277, No. 7 / Levinson, Roter, Mullooly, et al. Healthcare Provider-Patient CommunicationRelationship to Claims Significant differences in communication styles of primary care providers who have claims vs. no claims No significant difference in communication styles for surgeons who have claims vs. no claims

39. JAMA, 2/19/97 - Vol 277, No 7 / Levinson, Roter, Mullooly, et al. Physician-Patient Communication�No Claims� Behaviors Used more statements of orientation advised what to expect of an exam described flow of a visit Laughed and used humor Tended to use more facilitation Solicited the patient�s opinion Checked for understanding Encouraged patients to talk

40. Communication Skills Patient Rapport - empathy, comfort & emotional support Non-verbal communication: Sitting at the patient�s eye level Present a friendly demeanor Watch verbal and non-verbal cues Avoid appearance of inattention (taking phone calls, looking at clock or watch, etc.)

41. Communication Skills Explain treatment in language your patient understands Be accessible Be honest when discussing risks & benefits (Lack of trust combined with poor outcomes = complaints & claims)

42. Case 6-Malpractice Risk Factors Gruff physician applying to join your group. The provider has numerous risk factors for a malpractice claim. You might want to consider an evaluation before hiring him to see if there are any underlying issues that need addressing. A risk management refresher course might be worthwhile

43. Reporting Adverse Events Call Risk Management UWMC Risk Manager - (206) 598-6303 Harborview Risk Manager - (206)341-4345 Other Sites: (206) 598-6303 Complete an Incident Report/Patient Safety Net report Notify your Attending Physician Investigation process Narrative process: Show overhead with AG seal, etcInvestigation process Narrative process: Show overhead with AG seal, etc

44. Insurance Protection UW maintains a statutory self-insurance program for professional liability: Coverage unlimited per occurrence with no annual aggregate financial limit No deductible �Occurrence� coverage Describe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concernsDescribe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concerns

45. Insurance Protection Coverage applies to duties performed on behalf of UW (meaning within the scope of the residency or fellowship program in which you are enrolled) Coverage period: Duration of Residency, Fellowship, or employment Describe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concernsDescribe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concerns

46. Insurance Protection What is not covered: Claims related to practice/employment prior to UW Residency Moonlighting Acts of �bad faith� Describe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concernsDescribe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concerns

47. Insurance Protection Bad Faith� as defined by the UW Board of Regents: Acts committed with the willful intention of causing injury or harm; Acts that were reckless or malicious in nature Acts committed in willful violation of law or university regulations Acts committed while under the influence of alcohol or a controlled substance Describe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concernsDescribe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concerns

48. Resources Health Sciences Risk Management Staff Cindy Howey & Julie Tin � UW Medical Center Pat Tennent & Mona Humphrey � Harborview Marcia Rhodes � Children�s Hospital Administrative Policy & Procedures (APOP) Manuals Each Hospital has a unique APOP Manual available online using your UW passwords for access Bookmarked in Favorites �Online Information� UW Medicine Informed Consent Manual Describe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concernsDescribe the Health Sciences Risk Management Structure My focus is clinical RM - I am your resource for any potential or imminent concerns

49. Questions?