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Medical Malpractice

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Medical Malpractice Namitha Govinda, MD Resident conference May 9, 2006 Outline Definitions Crisis Map Background International scene Increasing malpractice premiums ... – PowerPoint PPT presentation

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Title: Medical Malpractice


1
Medical Malpractice
  • Namitha Govinda, MD
  • Resident conference
  • May 9, 2006

2
Outline
  • Definitions
  • Crisis Map
  • Background
  • International scene
  • Increasing malpractice premiums
  • Case study
  • No fault compensation
  • Relation between negligence outcome
  • Crew Resource Management
  • Avoiding law suits
  • Conclusions

3
Definitions of common terms
  • Collateral-source benefits
  • Amount that a plaintiff recovers from sources
    other than the defendant
  • Economic damages
  • Funds to compensate a plaintiff for the monetary
    costs of an injury
  • Joint several liability
  • Liability in which each liable party is
    responsible for the entire obligation.
  • Malpractice
  • Failure of one rendering professional services
    to exercise that degree of skill learning
    commonly applied under all circumstances in the
    community by the average prudent reputable member
    of the profession with result of injury, loss or
    damage to the recipient of those services or
    those entitled to depend upon them

4
Definitions (contd)
  • Negligence
  • A violation of duty to meet an acceptable
    standard of care
  • Non economic damages
  • Damages payable for non monetary losses.
    Technically includes punitive damages.
  • Punitive damages
  • Damages awarded in addition to compensatory
    damages to punish a defendant for willful
    wanton conduct
  • Statute of limitations
  • A statute specifying the period of time after
    the occurrence of an injury during which any suit
    must be filed
  • Bryan A. Garner, ed.,
    Blacks Law Dictionary, 6th ed, p. 959

5
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6
Background
  • 1970s- availability crisis? exit of major insurer
    from market inability to obtain insurance at
    any price? entry of insurance companies owned
    operated by MDs state run joint underwriting
    associations
  • 1980s- affordability crisis? insurers wrote
    policies but charged premiums that many could not
    afford? concerns about access to care
  • Currently- crisis of availability
    affordability? St. Pauls exited in 2001?
    succeeding 2 yrs exodus of many insurers?
    thousands of MDs scrambling for coverage e.g.. In
    PA remaining insurers refused new business or
    offered only to those w a clean slate

7
Background (contd)
  • MDs had to turn to joint underwriting
    associations as the insurers of last resort ?
    with prohibitively high rates
  • In FL where MDs are not required to carry
    liability insurance, increasing MDs are going
    bare ? asset protection is a major industry

8
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9
Is it the cost of malpractice ?
10
Is it the cost of malpractice ?
G. F. Anderson et al Health Affairs 2005
11
Trends in premiums for Physicians Medical
Malpractice, by type of physician
Congressional Budget Office 2004
12
Average Insurance Payment for closed Malpractice
Claims
  • (in Thousands of Dollars)

Source Physician Insurers Association of
America Note These averages exclude closed
claims that did not result in payments
13
Congressional Budget Office 2004
14
Congressional Budget Office 2004
15
Options for Malpractice Reform.
Studdert, D. M. et al. N Engl J Med
2004350283-292
16
Case Study
Troyen A. Brennan et al Annals of Internal
Medicine 2003
  • Ms. T presents w/ 3 d fever, N/V
  • T38.3, HR 118 RR 26 BP 112/70 Sats 92 on RA
  • Exam Rt. lung base crackles
  • Lab CBC w/ leucocytosis w/ left shift
  • CXR dense RLL infiltrate
  • Pt admitted to medical ward, given IV Levaquin,
    Flagyl O2 pulmonologist consulted by phone
  • 5 hrs later pt found dyspneic diaphoretic, sats
    69 on 2L?placed on NRB _at_ 15L? sats now 91
  • Dr H paged arrived in minutes

17
Case study (contd)
  • ABG 7.41/29/63 on NRB
  • PCXR worsened R LL infiltrate
  • Dr. H diagnoses impending respiratory failure
  • Opts to transfer pt to the care of a
    pulmonologist in the ICU for probable intubation
    (20 minutes later)
  • In the ICU severe respiratory distress,
    delirious
  • HR 145 RR 38 sats 64 on NRB
  • Preoxygenated w BVM, given midazolam intubation
    attempted

18
Case study (contd)
  • V fib cardiac arrest, 02 sats in the 30s
  • BVM oxygenation resumed, CPR (including chest
    compressions), epinephrine atropine given,
    defibrillated intubated.
  • ABG 7.09/72/39 on 100 Fi02
  • Oxygenation improves cardiopulmonary status
    stabilizes but pt left with profound presumably
    irreversible brain damage
  • At the time of DC ( to an LTAC) pt did not
    recognize family members or perform any ADL
  • After several months, family sought legal counsel
    Dr. H was informed that she was named in a
    malpractice case

19
Case study (contd)
  • To recover damages, Ms. T must prove
  • Relationship between Dr. H her gave rise to a
    duty
  • Dr. H was negligent i.e. care fell below the
    standard of a reasonable medical practitioner
  • Ms. T suffered an injury
  • Caused by Dr. Hs negligence
  • The claim was that the Dr. H did not move quickly
    enough to seek critical care attention for Ms. T
    that the delay caused her cardiac arrest
    subsequent brain damage.

20
Why sue? Perspective of the Plaintiffs attorney
21
Is the lawsuit fair ? Perspective of the Defense
Attorney
  • Action plan was within standard of care
  • Lawsuit blames individual physician. Multiple
    factors involved nursing monitoring, schedule of
    attending coverage, ER response admission to
    ICU, intubation on the floor
  • Plaintiffs attorneys routinely sue many
    individuals including the hospital
  • Many jurors equate catastrophic outcomes with
    somebody must have messed up
  • Degree of injury is critical to the case

22
The case (contd)
  • Defendants attorney after a long pretrial period
    of fact finding, expert witness reviews
    depositions finds his clients case strong
  • But the horrendous outcome concerns about care
    in the hospital (unrelated to Dr H) lead him to
    recommend that Dr H settle for a small sum of
    money

23
The case (contd)
  • Factors that Dr Hs attorney considered
  • a) How likely is the jury to favor the physician?
  • b) If the jury found Dr H guilty, what would Ms
    Ts damages amount to (economic non economic) ?
  • c) What is his gut instinct about the cases
    worth?
  • d) Subjective factors like composition
    liberality of jurors in a given venue
    sympathetic unsympathetic characteristics of
    the plaintiff, her injury circumstances
  • Although the outcome seems unfair, it is
    perfectly in accord with empirical research on
    litigation outcomes attorneys strategies as
    they function in an imperfect tort system

24
A new paradigm
  • In a no-fault system ?injured pt proves injury
    caused by medical management ? no need to show
    negligence ?more in line with pt safety movement
    ?modern notions of error prevention find little
    value in assessing individual moral blame
  • Experience-rating
  • Channeling programs- hospitals their medical
    staffs are insured by the same entity? the
    enterprise bears the liability for injury has
    incentives to address error prevention
  • No fault system is less costly administratively
  • Absence of effective self policing so may not
    promote pt safety
  • If a doctor knows that every judgment is not
    going to be subject to the retrospectoscope
    they are likely to practice good medicine

25
New Zealands no fault compensation
  • In 1974 a government funded system was adopted
    for compensating people with personal injury
    (operated by ACC- Accident Compensation
    Corporation)
  • Pts give up the right to sue for damages arising
    out of any personal injury covered by the
    legislation
  • All personal injuries suffered while receiving
    treatment from health professionals is covered
    (causal link between treatment injury is still
    required)
  • Financed by general taxation employer levy

Marie Bismark et al Health Affairs 2006
26
New Zealands no fault system (contd)
  • Fixed award schedule means claimants w similar
    disabilities receive similar compensation
    (treatment rehab, loss of earnings, permanent
    disability, support for dependents)
  • High affordability (strong social security
    system, compensation is lower more consistent
    than a malpractice equivalent, most entitled pts
    never seek compensation)
  • Accountability issues- Health Disability
    Commissioner acts as a gatekeeper to disciplinary
    proceedings in serious cases

27
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28
Relation between negligence outcome in
litigation
  • Study in NEJM in 1996 reviewed records for 10yrs
    from a representative sample of 31,000 pts from
    2.7 million pts, hospitalized in non federal,
    acute care, non psychiatric hospitals in NY state
    in 1984, 51 claims were identified (at the time
    of the study 46 were closed)
  • Panel of nurses/medical record analysts initially
    reviewed records for 1 out of 18 criteria for
    adverse events or negligence, later reviewed by
    MDs
  • Adverse event was defined as an injury from
    medical treatment as opposed to disease process
    that prolonged hospitalization or caused
    disability at discharge or both
  • Adverse event due to negligence was an injury due
    to medical care that failed to meet standards of
    reasonable medical practitioners

29
Disposition of Claims According to the Rating of
the Plaintiff's Injury and Degree of Disability.
Brennan, T. A. et al. N Engl J Med
19963351963-1967
30
Logistic-Regression Analysis of Predictors That a
Claim Would Be Settled in Favor of the Plaintiff.
Brennan, T. A. et al. N Engl J Med
19963351963-1967
31
Prevention of medical errors
  • Report of IOM in published in 2000 estimates
    between 44,000 98,000 hospitalized pts die each
    yr from medical errors another 1 million are
    injured
  • Crew resource management (CRM) is a leadership
    strategy originally developed in the 1980s by the
    airline industry to address the cause of human
    errors that underlie 70 to 80 of commercial
    aviation accidents. CRM is so successful in
    reducing the incidence of errors that it is now
    considered industry standard

32
CRM (contd)
  • While extending such strategies from the cockpit
    into medicine seems a stretch, consider this
  • Both pilots MDs are highly trained work in
    complex, technically demanding situations
  • Both encounter situations of intense time,
    pressure high stakes
  • Both are team leaders who make decisions that
    affect the life of others
  • Both rely on team members to implement decisions
  • Both are constantly bombarded w more data than
    they can be reasonably expected to absorb
    process
  • Both are subject to fatigue stress from long
    hours

Medical Risk Management 2004
33
Building a CRM team
  • CRM improves pt safety by establishing a
    systematic, structured process in which health
    care is delivered by a team w defined objectives,
    responsibilities expectations of performance
    outcome.
  • Open communicative leadership, yet decisive
    able to maintain discipline
  • Open culture towards errors pt safety. Errors
    are to be expected, reported discussed in a non
    punitive environment aimed at identifying the
    root causes of such errors learning to avoid
    their repetition
  • Team members crosscheck each others work
  • Precise written communications
  • Spell out medication names, dosage intended use

34
CRM uses protocols as pt safety tools
  • Use of evidence based protocols, tempered w
    physicians clinical judgment is central to CRM
  • Overwhelming evidence shows judicious use of
    clinical guidelines reduces medical errors
    health care costs
  • Adherence to guidelines offers some legal
    protection if one is sued
  • Failure to adhere to such a guideline can be used
    against one in a malpractice claim
  • Main barrier to use of guidelines is lack of
    knowledge about or familiarity w specific
    guidelines

35
Protocols (contd)
  • Federal governments Agency for Healthcare
    Research Quality maintains a website
    specifically for posting disseminating practice
    guidelines at http//www.guideline.gov/
  • Overcoming other barriers to protocol use
    requires teamwork commitment e.g. embedding
    protocols within an EMR such that as an MD enters
    pt data, suggestions for the next step in
    diagnosis or treatment are automatically provided
    in real time

36
Avoiding lawsuits
  • Records, records, records
  • Keep clear, accurate records
  • Talk to each other (if you dont talk to a pt,
    hell talk to a lawyer)
  • Check lab imaging reports, ensure they are read
    and followed up
  • If there is an error dont run hide.
    Communication stops litigation even if there is
    an error. If you communicate, document it
  • Never, never, never change a record

37
Texas law
  • Damage Caps - 250,000 cap on noneconomic damages
    for judgments against physicians and health care
    providers additional 250,000 cap on noneconomic
    damages for judgment against one health care
    institution. A judgment against two or more
    health care institutions shall not exceed
    500,000 with each institution not liable for
    more than 250,000. (2003)
  • Legislation was ratified by voters in a ballot
    proposition amending the states constitution in
    2004
  • Joint Liability Reform - Yes. Named defendants
    are held responsible only for the portion of
    fault attributable to them
  • Collateral Source Reform - No
  • Attorney Fees Limited - No
  • Periodic Payments Permitted - Yes. Court must
    order payment of periodic damages if the present
    value of damages in case equals or exceeds 100k.

38
Rate of rise of malpractice premiums for
Internists (1 mil/3 mil)
Medical Liability Monitor 2001, 2003, 2005 survey
39
Conclusion
  • Malpractice has 3 social goals to compensate pt
    injured by negligence, deter unsafe medicine
    exact corrective justice
  • In reality very few pts are compensated, key
    predictor is degree of disability not
    negligence there are huge administrative costs
  • Trial lawyers believe malpractice law makes MDs
    practice safe medicine, but the punitive,
    adversarial approaches dont support this. MDs
    are reluctant about disclosure so there is
    underreporting lack of communication about
    errors

40
Conclusion (contd)
  • No fault system replaces determination of
    negligence by determination of avoidability
  • Theoretically larger pool of injured pts will be
    eligible for compensation, this could be offset
    by savings in legal administrative costs
  • Compensation is fairer, more efficient closer
    fit between concept of avoidability pt safety
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