Medical Legal Issues Investigating Tort Claims

Medical Legal IssuesInvestigating Tort Claims Melissa Hartley, DCJA, Madigan Army Medical Center Clayton Diedrichs, AUSA, Western District of Texas

Two Part Presentation • Agency Counsel will address claims phase and investigative process. • AUSA will address specific litigation issues and what they need to defend in litigation.

In the Beginning • The Claim • The Records • The Chronology • The HIPAA release for other records • The Witnesses

Standard of Care….Where to look? • What is it? • Who decides? • Where do you find it? Note. Look at all the problem issues, you may discover other SOC issues in the file…………

Claim Form (SF 95) • What does it say? • Is it a valid claim? • What does it mean? • Dealing with the “shotgun effect.”

A Record is a Record, right??? • Paper records • Computer files • Appointment lists • Labs and X-rays • Medication Profiles • Diagnosis Lists • Ask about “convenience files” • Location of specialty tests and records……

Release For Records under HIPAA • Send Release with acknowledgment letter….Release should cover incoming and outgoing records, and be HIPAA compliant for acceptance at other hospitals. • Covers your release outside the DOD Healthcare network to USARCS and other entities, if needed. • It can move liability to another facility or service if multiple medical facilities involved in patient’s care. • Can prove limited damages based on other statements in the medical record.

The Claims Investigator’s Best Weapon • Chronology!! • What’s In? • What’s Out? • Best tool the attorney can have! • Also sells D.O.J. on your case, if needed.

Chronology Leads to Witnesses Not just supporting witnesses, we want the the and the Good Bad Ugly!

What if the stories don’t match? • Who else can be the tie breaker? • Problem witnesses we don’t want on the stand?!?

So, it looks like a REAL Tort Claim….. Now What ?!?

Standard of Care What is it? How do you prove it?

S.O.C. Definition “What a reasonably prudent provider with similar training and circumstances would have done.” (Note, this analysis is provider specialty specific.) -Grey Zone! -Pretty Wide!

Proving a Negative In order to prove you did not violate SOC, you must first learn what SOC is for your Particular case, and the individual providers involved…...

Interview Prep • Resources. • Identifying Issues. • Knowing your subject. • Know how to spell and pronounce the diagnosis BEFORE the interview. • Be prepared, hospital staff will appreciate it and you can use them as a resource.

Research • Experience in your local files- Have you had a case like this before? • WEB MD, LEXIS, Taeber’s dictionary, and a good abbreviation book. • Use providers as a resource as well as USARCS or other hospital legal people.

Draft Questions • Credentials? • Contact Number? • Relevant testimony to the Case? • “Their Story.” • Their opinion on Standard of Care? • Ask for articles or other research. • Other relevant character or claim information…..

RM v. JAG Processes • Risk Management asks whether or not standard of care is met……period. • JAG looks at whether standard of care was met, if there were damages, and if so what were the damages and how can we limit them??

Work Product or Q.A. Protection Do not let them write the statement! Keep the Attorney Work Product Privelege!

What to do with Q.A. Material • Is it protected from disclosure under Title 10 USC Section 1102? • What does this mean exactly? • How does it affect your case? • Beware of Deponents bearing “gifts” at Deposition…………

Common Claims • Birth Injury. • Failure to follow-up and report the diagnosis to the Patient. • Delay in Diagnosis of Cancer or Post Surgical Complications. • Inadequate Treatment of Pain. • Drug Error or Allergy Issues.

Birth Injury • Should we have recognized a problem sooner via monitoring maternal health history? • Infant weight estimation? • Management of Labor? • Timely diagnosis/intervention such as emergent C-section? • Is it really an injury? • Look at parents records and sibling delivery records if available. • What are other logical reasons for the injury besides MedMal?

Failure to Relay Diagnosis to Patient • Who was responsible for reporting? • Is this something the patient should have already known? • Were they told to Follow-up? • Do we have a paper trail? • Did failure or delay cause injury?

Delay in Diagnosis • Cancer cases • Know the usual growth rate for that type of cancer…does the timeline make sense? • Always look at what the delay cost in “chance for recovery.” • Get Oncology Statistics for Remission based on your patients health and habits. • Get prior X–rays, scans, lab results for blood work, check for complaints of fatigue, etc.

Delays, continued…. Surgical Issues- • Gastric By-Pass: • Patient’s pain level? • Blood tests to include white cell count? • Vitals Checks…High fever? • Check Feeding tubes v. Drain tubes? • Suture leaks should be identified within how many hours??

Delays, continued….. • Intubation or Feeding Tubes: • Did we X-ray to check placement of tube? • Did we check O2 Saturation levels? • Retained surgical instrument: • It’s a pay case, but look at aggravating factors. • Did we ignore the patient’s pain or complaints? • Did we do appropriate tests?

Inadequate Treatment of Pain • Is there some underlying diagnosis that we did not consider? • Have medication levels reviewed by a Pain Management Specialist. • Look for inflammatory or dismissive notes in the record that could hurt your defense of the case. • Look at tolerance or addiction factors.

Drug Errors or Interactions • What was prescribed vs. what was filled? • Was it actually ingested and caused harm? • What are actual damages? • If drug combination, was it warranted for the patient’s symptoms? • Once the reaction occurred, did we diagnose timely? • Bad outcome based on known side effect does not mean there was negligence!

A Look at Damages…. • Only fair to pay for what we caused! • Look at other contributing factors for delay in diagnosis or for injury itself. • Pre-existing injury in other records? • Risky behavior that added to injury or contributed to the lost chance of recovery? • Research verdicts to know what claim is worth.

When is an Investigation Complete? • When the claim is denied? NO! • When the claim is passed on to Litigation Division? NO! • Be available to help with additional exhibits or additional fact finding if the theory of malpractice offered by the Plaintiff changes during the trial.

What the AUSA Needs: • And now Mr. Diedrichs will address litigation and discovery issues……..

Medical Legal Issues Investigating Tort Claims