Title: Medical Malpractice
1Medical Malpractice
- Namitha Govinda, MD
- Resident conference
- May 9, 2006
2Outline
- 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
3Definitions 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
4Definitions (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
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6Background
- 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
7Background (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
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9Is it the cost of malpractice ?
10Is it the cost of malpractice ?
G. F. Anderson et al Health Affairs 2005
11Trends in premiums for Physicians Medical
Malpractice, by type of physician
Congressional Budget Office 2004
12Average 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
13Congressional Budget Office 2004
14Congressional Budget Office 2004
15Options for Malpractice Reform.
Studdert, D. M. et al. N Engl J Med
2004350283-292
16Case 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
17Case 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
18Case 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
19Case 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.
20Why sue? Perspective of the Plaintiffs attorney
21Is 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
22The 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
23The 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
24A 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
25New 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
26New 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
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28Relation 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
29Disposition 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
30Logistic-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
31Prevention 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
32CRM (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
-
34CRM 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
35Protocols (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
36Avoiding 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
37Texas 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.
38Rate of rise of malpractice premiums for
Internists (1 mil/3 mil)
Medical Liability Monitor 2001, 2003, 2005 survey
39Conclusion
- 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
40Conclusion (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