Medical Malpractice

1. Medical Malpractice

2. MAIN POINTS • You really don’t want to be involved in a suit • Hospitalists are becoming bigger targets • You’re a doctor; leave the lawyering to the lawyers. • Defensive medicine: • Is bad medicine • Doesn’t defend you against anything • It’s not the lawyers’ fault… • How does it happen? • The best protection: 3 components

3. Malpractice • Injury, infection, or disfigurement that results from a provider deviating from the “standard of care” • “Standard of care”???? • Common root causes: • Misdiagnosis • failure to provide appropriate treatment • unreasonable delay* • lack of informed consent*

4. What’s out there…. • 71 y.o. given Ambien, falls = SDH • 56 y.o COPD, dies while being transferred • 56 y.o. s/p gastric bypass, transferred to see neurologist, dies of complications from the surgery • 63 y.o. readmitted after CABG, hospitalist doesn’t see pt, treats sepsis as dehydration over phone • 72 y.o. hematoma from PICC = peripheral neuropathy, nobody f/u on US • Failure to detect a retroperitoneal hematoma, blamed it on a GI bleed • Sent a 23 y.o. home with a large PE

5. How it goes down… • Bad outcome + bad relationship • Patient contacts attorney • SOL/SOR = 1 year from the date of discovery of the injury and 4 years from the date of the action that caused it • Pre-suit notice • Review for meritoriousness • Filing • Discovery • Negotiations • Settlement or trial

6. 3 types of damages • COMPENSATORY – no cap • NON-ECONOMIC • The greater of $250,000 or 3xCompensatory, not to exceed $350, 000 unless substantial, then $500,000 • PUNITIVE • in cases of “reckless behavior”, usually fraud or malice; 2xCompensatory

7. You & your insurance company • You • Duty of prompt notice • Duty to cooperate • Insurance company • Duty to defend • Duty to indemnify • Caveats • Pride provision • Hammer clause • They hire “your” attorney

8. Ohio Tort Reform • Cap on non-economic damages • Joint & several liability • SOL/SOR • Evidence of collateral source payments • AOM • State Medical Board jurisdiction • “I’m sorry” Law • Insurance can’t change rates based on 180 day letter

9. What to do • Don’t talk to ANYBODY (except…) • Notify your insurance company and your risk manager immediately • Be an active participant • Know who is on your side • DO NOT EVER alter the records • DO NOT EVER contact the plaintiff or their attorney

10. Hospitalists • Transitions of care • Lack of communication • Group tunnel vision • Bad customer service • No loyalty • Consultants • No support • The "they'd already been seen by my partner" and "that's what I was told by my partner" defenses don't work

11. 3 KEY STEPS TO AVOIDING PROBLEMS • Relationships are everything • Informed consent/communication • Documentation, documentation, documentation • If it wasn’t documented, it wasn’t done • document thought processes!!!!

12. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • 37 y.o. female • CC: cough, sinus infection • D-Dimer: 1.7 (</=0.50 mcg/mL FEU) • 40 y.o. male • CC: right shoulder dislocation • D-Dimer: 1.2 (</=0.50 mcg/mL FEU)

13. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • 37 y.o. female • CC: cough, sinus infection • D-Dimer: 1.7 (</=0.50 mcg/mL FEU) • 40 y.o. male • CC: right shoulder dislocation • D-Dimer: 1.2 (</=0.50 mcg/mL FEU)

14. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • 37 y.o. female • CC: cough, sinus infection • D-Dimer: 1.7 • CT-PA negative, sent home with a Z-pack • 40 y.o. male • CC: right shoulder dislocation • D-Dimer: 1.2 • No further testing, shoulder reduced and discharged home

15. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • 37 y.o. female • CC: cough, sinus infection • D-Dimer: 1.7 • CT-PA negative, sent home with a Z-pack • Cause of death: anaphylactic reaction to contrast dye • 40 y.o. male • CC: right shoulder dislocation • D-Dimer: 1.2 • No further testing, shoulder reduced and discharged home • Autopsy = saddle PE

16. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION JURY AWARD: $2.5 million

17. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • 37 y.o. female • CC: cough, sinus infection • D-Dimer: 1.7 • CT-PA negative, sent home with a Z-pack • Cause of death: anaphylactic reaction to contrast dye • 40 y.o. male • CC: right shoulder dislocation • D-Dimer: 1.2 • No further testing, shoulder reduced and discharged home • Autopsy = saddle PE

18. DEFENSIVE MEDICINE VS. GOOD DOCUMENTATION Pt. A, in ER Pt. B, admitted to obs • Necessity of the test was not documented • Explanation of the risks of the test were not documented • “primum non nocere” • The hospitalist wrote: “+ DD ordered in ER noted, not clear why it was ordered. Pt denies fever, dyspnea, palpitations, chest pain, cough, hemoptysis. Lungs clear, resps unlabored, satsnl. No RFs for VTE disease. Discussed at length with pt. Will forego further workup. Will f/u with PCP”