Legal Issues in the Emergency Department

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Legal Issues in the Emergency Department
Dr. Nathan Coxford CCFP(EM)
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Outline

1. Litigation in the Canadian ED Stats, Process
2. Factors that contribute to malpractice litigation
   system factors, patient factors, physician
   factors.
3. What can you do to protect yourself?
4. Defensive Medicine

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Options for aggrieved patients

• Patient safety response
• College complaints
• Litigation

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College complaints possible outcomes

• Complaint can be dismissed
• Take a course
• Limit licence
• The physician may have to pay the costs
  associated with the investigation.

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Medical malpractice lawsuits - Canadian Statistics

• 75000 CMPA members
• Last year, there were just under 900 new legal
  actions raised so, 1 action for every 80
  members per year.

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Further

• 884 medico-legal actions taken
• Of those, 88 went to trial
• Of those, 13 went in favor of the plaintif

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Where do we fit in?

• Emergency physicians outside of Ontario and
  Quebec (thats us) - 2,688 yearly
• Comparison
• Ontario/Quebec higher fees (ER 5323, 6576)
• Obstetrics 15,396
• General Surgery 5496
• Neurosurgery 11,676
• Family Medicine 996 (excluding obs, ER)

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Trend?

• Decreasing
• 35 fewer actions than 10 years ago
• However, costs per claim rising doubled in that
  period - 120 000 per median cost
• College complaints holding steadier - 37 per 1000
  members

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Comparison with other countries

• 0.04 claims per 1000 population in Canada
• USA 0.18
• UK 0.12
• Australia 0.12

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Process

• 70 favorable outcome for members
• 30 unfavorable
• About 10 go to trial

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Medico-legal action

• Statement of Claim
• Statement of Defence
• Discovery
• Pretrial conference
• Trial
• Appeal
• All of this adds up to a long time like 5-7
  years!

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If youre on the wrong end of a lawsuit

• For the most part, the CMPA pays out
• The exception to this is punitive payments
  these are things that tend to fall in the gross
  misconduct realm

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Another possible exception

• Out of country patients
• CMPA coverage generally applies only to actions
  brought about on Canadian soil.
• Unless Governing Law and Jurisdiction Agreement
  waiver patient signs which states that if they
  choose to sue you, they will do it in Canada.

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A little more about the CMPA

• Big organization
• Hundreds of millions in the bank
• If in trouble call early

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The Four Elements

• Four elements must be established or proven for
  any legal action based upon a claim of negligence
  to be successful
• There must be a duty of care owed toward the
  patient.
• There must be a breach of the duty of care.
• The patient must have suffered harm or injury.
• The harm or injury must be directly related or
  caused by the breach of the duty of care.

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Lets be reasonable

• In determining whether a physician has breached
  a duty of care toward a patient, the courts
  consider the standard of care and skill that
  might reasonably have been applied by a colleague
  in similar circumstances. The appropriate measure
  is therefore the level of reasonableness and not
  a standard of perfection.

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Two ways of looking at this

• Before Stopping the legal action before it
  starts.
• After Making sure youre cool if you get hit
  with the subpoena.
• not mutually exclusive approaches

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Before

• This is where you want to focus.
• Going through a legal action is not a pleasant
  thing
• Time
• Energy
• Embarrassment

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Pertinent Factors

• System factors
• Patient factors
• Physician factors

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The ED Patient

• Endures long waiting time
• Meets you, the health provider, for probably the
  first time (rapport?)
• Is tired, acutely sick, in an unfamiliar
  environment
• Concerned and/or angry families

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The System (emergency department)

• Stressed, tired medical staff
• All day, every day (80 lawsuits over events
  that occurred during off hours)
• Noisy environment
• All sorts of distractions

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The Physician

• Just a crap shoot, right?
• Not exactly

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What we have here is a failure to communicate
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The literature says

• Positive physician communication matters
• Increases patients perception of competence and
  decreases malpractice claim intentions

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Remember way back when

• You took the LMCC?
• Did you take it between 1993-1996?
• Independent predictors of increased risk of
  complaints to regulatory bodies poor scores on
• 1. Clinical decision making
• 2. Patient-physician communication

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Levinson et al.

• Significant differences in communication
  behaviors of no-claims and claims physicians were
  identified
• No claims physicians used more statements of
  orientation (educating patients about what to
  expect and the flow of a visit)
• Laughed and used humor more
• More facilitation - soliciting patients'
  opinions, checking understanding, and encouraging
  patients to ask questions.
• A little extra time makes a difference.

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Disclosure

• We all believe in it (in theory)
• We dont all do it (in practice)
• Patients want not just disclosure genuine
  apology!
• If no harm, do you still tell?

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Is it all about the Benjamins?

• Patients taking legal action wanted
• Greater honesty
• Appreciation of the severity of the trauma they
  had suffered
• Assurances that lessons had been learned from
  their experiences
• Moore et al.

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If it does go to court

• Some evidence that the actual amount of the
  settlement or award has more to do with the
  severity of the injury than with the degree of
  negligence.
• Brennan NEJM

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Tips(Courtesy of the CMPA)
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Consent

• TRULY get informed consent
• Common adverse effects
• Uncommon but serious adverse effects
• Consent must be
• Informed. Voluntary. From a patient with
  capacity.
• What will you be judged on? Would a reasonable
  person have declined the procedure had they known
  the risks?

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If you havent got something nice to say, dont
say anything at all.

• Avoid subjective and disparaging comments
  relating to the care provided by colleagues and
  other health care professionals
• Why?
• If theres a lawsuit, you might get dragged into
  it too
• You might not know the whole story

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Documentation

• Three keys to good documentation
• Accurate
• Objective
• Legible
• Be clear. Particularly when youre unsure of the
  diagnosis. Give clear discharge instructions
  make sure you speak with the patient and put it
  on the chart.

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Problem areas

• Most litigation centers around diagnosis
• Red flag - repeat customers
• Handover lots of mistakes made here person
  who ordered the tests most responsible!
• Communication between ER doc and the consultant -
  document

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Radiology

• Common area of concern
• Order the right test, take the time to look
  through it, call the radiologist if unsure
• ?System in place to manage discordant radiologic
  diagnoses between ER doc and radiologist
  Espinosa et al.

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What about us (your friendly neighbourhood
resident?)

• Fear of litigation in relationship to teaching
  behaviours may lead to less autonomy, less
  procedures, more staff notes.
• (Reed et al.)

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Responsibility of supervising physicians

• Is the task appropriate to delegate to an
  individual with the trainees level of training?
• Does this specific trainee have the required
  knowledge, skill and experience to perform the
  task?
• What degree of supervision is required?
• Has the patient been informed of the educational
  status of the trainee?

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Responsibility of trainees

• Recognize the limits of their knowledge.
• Exercise caution and consider their inexperience.
  
• Notify their supervisors of their knowledge,
  skill and experience with the delegated task.
• Keep the supervisor informed of their actions.
• Inform patients of their status as medical
  trainees.

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Dealing with Uncertainty

• The Low Probability High Morbidity Condition
• How far do you go? Must have an acceptable miss
  rate, but where we draw that line is variable
• Schriger et al.

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Defensive Medicine

• Malpractice fear - significant variability in ED
  decision making
• Associated with increased hospitalization (9) of
  low risk patients and increased use of diagnostic
  tests
• Katz et al.

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Defensive medicine contd

• Duty to
• The patient
• Society
• Yourself (the responsible physician)

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Summary

• Chances of getting sued are actually pretty low
  (but its not something you want to go through).
• The sage advice of a trainee with limited
  clinical and no litigation experience
• Be a competent doctor. Make sure your records
  show that youre a competent MD
• Be a decent human being treat your patients
  with respect, honesty, humour.

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For more information

• CMPA road show October 28th here in Cowtown.
• CAEP with CMPA before the family medicine forum.
• Ross Beringer, ER doc, speaking.

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Lets imagine

• 35 year old woman with a headache. Gets these
  headaches on a regular basis, has been to
  multiple doctors, theyve all told her that these
  are migraines. Neurological exam is normal, no
  alarm features.
• She wants a CT scan.
• She casually mentions to her nurse that her
  husband is a lawyer.

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CMPA case studies

• 58 year old obese man with back pain of 4 days
  duration, radiating to both lower quadrants. No
  physical findings aside from mildly elevated
  blood pressure. Normal AXR and CBC.

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Case study 2

• 35 year old guy with fever, peri-umbilical, flank
  pain, severe.
• Gunk in urine
• Ultrasound normal
• Sent home with Abx. for pyelonephritis.
• Comes back next week with a perforated appendix.
  Messy, long ICU stay afterward. What went wrong?

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References

1. Reducing Legal Risk by Practicing Patient
   Centered Medicine. Forster, et al. Archives of
   Internal Medicine 2002
2. Reducing errors made by emergency physicians in
   interpreting radiographs a longitudinal study.
   Espinosa et al. BMJ 2000.
3. Relation between negligent adverse events and the
   outcomes of medical malpractice litigation.
   Brennan et al. NEJM Dec 1996.
4. Monetary and nonmonetary accountability following
   adverse medical events options for Canadian
   patients. Gray, Beilty CMAJ Oct 2006
5. Medical malpractice the effect of doctor-patient
   relations on medical patient perceptions and
   malpractice intentions. Moore et al. West
   Journal of Medicine Oct 2000
6. Epidemiology of medical error BMJ March 2000
7. Myth Medical Malpractice lawsuits plague Canada.
   Canadian Health Services Research Foundation
   Mythbusters
8. Emergency Physicians Fear of Malpractice in
   Evaluating Patients with Possible Acute Cardiac
   Ischemia. Katz et al. Annals of Emergency
   Medicine. Dec 2005

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More References

• 9.Decisions, Decisions Emergency Physician
  Evaluations of Low Probability High Morbidity
  Conditions. Schriger et al. Annals of Emergency
  Medicine Dec 2005.
• 10. Standards for clinical evaluation and
  documentation by the emergency medicine provider.
  Selbst. Pediatric Radiology 2008.
• 11. Content analysis of patient complaints.
  Montini, Noble, Stelfox. International Journal
  for Quality in Health Care 2008.
• 12. CMPA Annual Report 2008.
• 13. Physician Scores on a National Clinical
  Skills Examination as Predictors of Complaints to
  Medical Regulatory Authorities. Tamblyn et al.
  JAMA Sept 2007.
• 14. Disclosing medical errors to patients
  status report 2007. Levinson. CMAJ July 2007
• 15. Do Fears of Malpractice Litigation Influence
  Teaching Behaviors? Reed et al. Teaching and
  Learning in Medicine July 2008.