Medical Malpractice: Risk Reduction Strategies & Legal Elements

 
The Provider: Medical Errors, Negligence,
The Provider: Medical Errors, Negligence,
Litigation and risk reduction strategies
Litigation and risk reduction strategies
Joel R. Garcia, MD FACC
Joel R. Garcia, MD FACC
Chief Quality Officer
Chief Quality Officer
Orlando Health Heart Institute
Orlando Health Heart Institute
2
Disclaimer
This lecture does not, in any way, constitute legal advice or
the practice of law and is not intended to replace legal
counsel.
3
Establishing the “Need to Know”
Knowledge is
empowering
Move from “
fear-
victim”
 mode
-to-
 
proactive-
preventive”
 mode
4
A
n
a
t
o
m
y
 
o
f
 
a
 
M
e
d
i
c
a
l
 
M
a
l
p
r
a
c
t
i
c
e
 
C
a
u
s
e
o
f
 
A
c
t
i
o
n
A form of negligence
Liability exists whether actions were intentional or
unintentional
Negligence results when the provider’s conduct falls
below the standard of care established to protect the
patient from an unreasonable risk of harm
5
F
o
u
r
 
E
l
e
m
e
n
t
s
 
W
e
 
N
e
e
d
 
t
o
 
K
n
o
w
1.
Duty
2.
Breach of Duty
3.
Actual and proximate causation
4.
Injury
6
D
U
T
Y
T
o
 
p
r
o
v
i
d
e
 
a
s
t
a
n
d
a
r
d
 
o
f
 
c
a
r
e
,
t
h
a
t
 
o
t
h
e
r
r
e
a
s
o
n
a
b
l
y
 
p
r
u
d
e
n
t
p
r
o
v
i
d
e
r
s
 
(
M
D
s
,
N
P
s
.
,
 
P
A
s
)
 
i
n
 
t
h
e
s
a
m
e
 
s
e
t
 
o
f
c
i
r
c
u
m
s
t
a
n
c
e
s
,
w
o
u
l
d
 
p
r
o
v
i
d
e
7
DUTY
Standard of Care Considerations
Medical Act of your
State Board of
Medicine defining
your scope of practice
National treatment
guidelines
Institutional treatment
protocol/guidelines
Expert testimony
8
B
R
E
A
C
H
 
O
F
 
D
U
T
Y
A deviation from the
standard of care
An “expert witness” may
be deposed
As a board certified
provider (MD)
, 
national
standards will be used,
in part, as the
benchmark of the
acceptable standard of
care
9
A
C
T
U
A
L
 
A
N
D
 
P
R
O
X
I
M
A
T
E
 
C
A
U
S
A
T
I
O
N
The analysis of the actual causation element involves
the 
“but for”
 test
But for
 the provider’s action, injury would not have
occurred
Foreseeability 
– the injuries were the result of the
provider's action and the injuries were foreseeable
before the injury occurred
ACTUAL AND PROXIMATE CAUSATION
A
 
p
a
t
i
e
n
t
 
c
a
m
e
 
t
o
 
a
 
m
e
d
i
c
a
l
 
o
f
f
i
c
e
 
f
o
r
 
a
 
H
+
P
.
 
 
A
 
N
P
 
t
o
o
k
 
t
h
e
 
h
i
s
t
o
r
y
 
a
n
d
n
o
t
e
d
 
t
h
a
t
 
t
h
e
r
e
 
w
a
s
 
a
 
r
e
m
o
t
e
 
h
i
s
t
o
r
y
 
o
f
 
u
l
c
e
r
 
w
i
t
h
 
n
o
 
r
e
c
e
n
t
c
o
m
p
l
a
i
n
t
s
.
 
 
T
h
e
 
p
a
t
i
e
n
t
 
c
a
m
e
 
b
a
c
k
 
l
a
t
e
r
 
c
o
m
p
l
a
i
n
i
n
g
 
o
f
 
b
a
c
k
 
p
a
i
n
.
 
 
A
p
h
y
s
i
c
i
a
n
 
r
e
a
d
 
t
h
e
 
N
P
s
 
h
i
s
t
o
r
y
 
a
n
d
 
i
n
i
t
i
a
t
e
d
 
a
s
p
i
r
i
n
 
t
h
e
r
a
p
y
.
 
 
T
h
e
p
a
t
i
e
n
t
 
d
e
v
e
l
o
p
e
d
 
a
 
 
G
I
 
b
l
e
e
d
.
 
 
T
h
e
 
p
a
t
i
e
n
t
 
s
u
e
d
 
t
h
e
 
N
P
 
f
o
r
 
f
a
i
l
i
n
g
 
t
o
d
i
a
g
n
o
s
e
 
a
n
 
u
l
c
e
r
 
a
n
d
 
s
u
e
d
 
t
h
e
 
p
h
y
s
i
c
i
a
n
 
f
o
r
 
f
a
i
l
i
n
g
 
t
o
 
o
r
d
e
r
 
a
n
e
n
d
o
s
c
o
p
y
 
b
e
f
o
r
e
 
s
t
a
r
t
i
n
g
 
t
h
e
 
p
a
t
i
e
n
t
 
o
n
 
a
s
p
i
r
i
n
.
 
 
T
h
e
 
c
o
u
r
t
 
f
o
u
n
d
 
f
o
r
t
h
e
 
N
P
 
a
n
d
 
t
h
e
 
p
h
y
s
i
c
i
a
n
.
 
 
T
h
e
 
c
o
u
r
t
 
f
o
u
n
d
 
t
h
a
t
 
t
h
e
 
p
a
t
i
e
n
t
 
h
a
d
 
f
a
i
l
e
d
 
t
o
p
r
o
v
e
 
a
 
c
o
n
n
e
c
t
i
o
n
 
b
e
t
w
e
e
n
 
t
h
e
 
p
a
t
i
e
n
t
s
 
G
I
 
b
l
e
e
d
 
a
n
d
 
f
a
i
l
u
r
e
 
t
o
d
i
a
g
n
o
s
e
 
t
h
e
 
u
l
c
e
r
 
i
n
 
o
r
d
e
r
 
t
o
 
o
r
d
e
r
 
a
n
 
e
n
d
o
s
c
o
p
y
 
e
a
r
l
i
e
r
.
 
 
T
h
e
 
p
l
a
i
n
t
i
f
f
f
a
i
l
e
d
 
t
o
 
p
r
o
v
e
 
a
c
t
u
a
l
 
a
n
d
 
p
r
o
x
i
m
a
t
e
 
c
a
u
s
a
t
i
o
n
.
10
11
HARM
Injury must be
proven
By presentation of:
Medical bills
Expert testimony
Direct evidence of pain
and suffering
12
Systematic Approach to Primary
Prevention of Malpractice
Incorporate a review
of the elements of
medical malpractice
into each encounter
Reflexive process of
thinking
M
M
e
e
d
d
i
i
c
c
a
a
l
l
 
 
E
E
r
r
r
r
o
o
r
r
s
s
,
,
 
 
N
N
e
e
g
g
l
l
i
i
g
g
e
e
n
n
c
c
e
e
,
,
 
 
a
a
n
n
d
d
L
L
i
i
t
t
i
i
g
g
a
a
t
t
i
i
o
o
n
n
I.
Medical Errors
Medical Errors
II.
Relationship of Medical Errors to Negligence
Relationship of Medical Errors to Negligence
III.
Why do People Sue their Doctors?
Why do People Sue their Doctors?
IV.
Potential Solutions to the Problem of Medical Errors
Potential Solutions to the Problem of Medical Errors
Accidental Deaths in the U.S.
 
Definitions
Definitions
Error
Failure of a planned action to be completed as intended
(i.e., error of execution) or the use of a wrong plan to
achieve an aim (i.e. error of planning)
Adverse Event (AE)
An injury caused by medical management rather than the
underlying condition of the patient
Preventable Adverse Event
An adverse event attributable to an error
Relationship of Medical Errors to Adverse
Relationship of Medical Errors to Adverse
Events
Events
Accidental 
errors
Epidemiology of Medical Errors
Epidemiology of Medical Errors
California Medical Insurance Feasibility Study (1974)
20,864 hospital admissions
4.65 injuries per 100 hospitalizations
Harvard Medical Practice Study (1984)
 30,121 hospital admissions in NY state
Reported adverse events (AE’s)
3.7% of admissions had an AE
H
a
r
v
a
r
d
 
M
e
d
i
c
a
l
 
P
r
a
c
t
i
c
e
 
S
t
u
d
y
Q
u
a
l
i
t
y
 
i
n
 
A
u
s
t
r
a
l
i
a
n
 
H
e
a
l
t
h
 
C
a
r
e
 
S
t
u
d
y
Reviewed 14,179 admissions in 1995
16.6% of admissions had an AE’s
Permanent disability 13.7%
Death 4.9%
51% of events preventable
Source – Wilson, 1995
T
o
 
E
r
r
 
i
s
 
H
u
m
a
n
IOM releases report 
To Err is Human 
(2000)
Estimates 44,000 to 98,000 unnecessary deaths each year due to medical
error
Estimated 1,000,000 excess injuries due to medical error
Numbers based on the MPS and extrapolated to the general population
D
e
a
t
h
s
 
d
u
e
 
t
o
 
M
e
d
i
c
a
l
 
E
r
r
o
r
4
4
,
0
0
0
 
t
o
 
9
8
,
0
0
0
 
u
n
n
e
c
e
s
s
a
r
y
 
d
e
a
t
h
s
 
e
a
c
h
 
y
e
a
r
More Americans are killed in US hospitals every 6 months than died in the
entire Vietnam War
Death rate equivalent to three “jumbo” jet crashed every two days
Where do these numbers come from
Where do these numbers come from
and why might they be overestimated
and why might they be overestimated
Methods
Physician implicit judgment
Causality of death difficult
Kappa statistics low
Overcoming these shortcomings
Utilizing more reviewers
Requiring greater agreement
Requiring assessment of overall prognosis
V
i
e
w
s
 
o
f
 
t
h
e
 
P
u
b
l
i
c
 
o
n
 
M
e
d
i
c
a
l
 
E
r
r
o
r
s
Percentage of adults experiencing an error
Medication or medical error
22%
Mistake at the physician’s office or hospital
10%
Wrong medication or dose
16%
    
Source- The Commonwealth Fund, 2001
Views of Practicing Physicians
Views of Practicing Physicians
and the Public on Medical Errors
and the Public on Medical Errors
Source- Blendon, 2002
D
i
s
p
o
s
i
t
i
o
n
 
o
f
 
C
l
a
i
m
s
 
A
c
c
o
r
d
i
n
g
 
t
o
 
t
h
e
R
a
t
i
n
g
 
o
f
 
t
h
e
 
P
l
a
i
n
t
i
f
f
'
s
 
I
n
j
u
r
y
 
a
n
d
D
e
g
r
e
e
 
o
f
 
D
i
s
a
b
i
l
i
t
y
Source – Brennan, 1996
1000
1000
280
280
36
36
All Injuries
All Injuries
All Negligent Injuries
All Negligent Injuries
Files a Claim
Files a Claim
13% of Negligent Injuries Results
in a Claim
Negligent Medical Injuries
Negligent Medical Injuries
Sources- Mills et al. (1977), Brennan et al. (1991), IOM (1999).
All Hospitalizations
All Hospitalizations
Negligent Injuries
(1-2%)
Negligent Injuries that Did Not
Negligent Injuries that Did Not
Result in a Claim
Result in a Claim
27,179 adverse events
due to negligence
26,764 with no
malpractice claim (98%)
415 malpractice claims
(2%)
14,180 with strong
evidence of negligence
12,858 with disability
7462 with disability < 6
mo (58%)
5396 with disability 
 6
mo (42%)
Source – Localio, 1991
M
e
d
i
c
a
l
 
E
r
r
o
r
s
42% of public report a medical error
66% reported serious consequences
such as severe pain, substantial loss of
time at work or school, disability or even
death
Only 6% had sued
W
h
y
 
i
s
 
m
e
d
i
c
i
n
e
 
s
o
 
s
u
s
c
e
p
t
i
b
l
e
?
Lack of awareness to the problem
“Culture of Silence”
Blame and shame mentality
System constraints
Staffing problems
Fatigue
Knowledge requirements
Communication and continuity of care
T
h
e
 
S
t
a
t
e
 
o
f
 
M
e
d
i
c
a
l
 
M
a
l
p
r
a
c
t
i
c
e
“Medical-malpractice litigation
“Medical-malpractice litigation
infrequently compensates
infrequently compensates
patients injured by medical
patients injured by medical
negligence and rarely
negligence and rarely
identifies, and holds providers
identifies, and holds providers
accountable for, substandard
accountable for, substandard
care”
care”
Source – Localio, 1991
M
e
d
i
c
a
l
 
E
r
r
o
r
s
,
 
N
e
g
l
i
g
e
n
c
e
,
 
a
n
d
L
i
t
i
g
a
t
i
o
n
I.
Medical Errors
II.
Relationship of Medical Errors to Negligence
III.
Why do People Sue their Doctors?
IV.
Potential Solutions to the Problem of Medical Errors
R
e
a
s
o
n
s
 
W
h
y
 
P
e
o
p
l
e
 
S
u
e
 
T
h
e
i
r
D
o
c
t
o
r
s
Advised to sue by influential other
 
32
Needed money
 
24
Believed there was a cover-up
 
24
Child would have no future
 
23
Needed information
 
20
Wanted revenge, license
 
19
Percent Expressing Concern
Percent Expressing Concern
Source - Hickson,  1992
M
a
l
p
r
a
c
t
i
c
e
 
R
i
s
k
Malpractice activity is disproportionate among
physicians
75% - 85% of awards, settlement costs over a 5-
year period made on behalf of
   
1.8% of internists
   
6.0% of obstetricians
   
8.0% of surgeons
S
o
u
r
c
e
-
 
S
l
o
a
n
,
 
1
9
8
9
,
 
B
o
v
b
j
e
r
g
,
 
1
9
9
4
Malpractice Activity and Patient
Complaints
Source – Hickson, 2002
Nine Percent of Physicians Account
Nine Percent of Physicians Account
for Fifty Percent of the Complaints
for Fifty Percent of the Complaints
%
 
o
f
 
C
o
m
p
l
a
i
n
t
s
%
 
o
f
 
P
h
y
s
i
c
i
a
n
s
Source – Hickson, 2002
Communication and Malpractice
Communication and Malpractice
Claims
Claims
Source – Levinson, 1997
Communication and Malpractice
Communication and Malpractice
Claims
Claims
Source – Hickson, 1994
M
M
e
e
d
d
i
i
c
c
a
a
l
l
 
 
E
E
r
r
r
r
o
o
r
r
s
s
,
,
 
 
N
N
e
e
g
g
l
l
i
i
g
g
e
e
n
n
c
c
e
e
,
,
 
 
a
a
n
n
d
d
L
L
i
i
t
t
i
i
g
g
a
a
t
t
i
i
o
o
n
n
I.
Medical Errors
Medical Errors
II.
Relationship of Medical Errors to Negligence
Relationship of Medical Errors to Negligence
III.
Why do People Sue their Doctors?
Why do People Sue their Doctors?
IV.
Potential Solutions to the Problem of Medical Errors
Potential Solutions to the Problem of Medical Errors
Malpractice as a Barrier to Safety
Physicians overestimate the risk of being sued
Less likely to report errors as a result
Other Potential Solutions
Learn lessons from other industries
Aviation, Military, Nuclear Power
Development of IT infrastructures
POE, Communication
Less reliance on memory
Restriction on working hours
AAMC proposed guidelines (80 hour week)
Greater staffing to patient ratios
Improved nursing jobs
Organizational Culture
“Physicians and nurses need to
“Physicians and nurses need to
accept the notion that error is an
accept the notion that error is an
inevitable accompaniment of the
inevitable accompaniment of the
human condition, even among
human condition, even among
conscientious professionals with
conscientious professionals with
high standards.  Errors must be
high standards.  Errors must be
accepted as evidence of system
accepted as evidence of system
flaws not character flaws.”
flaws not character flaws.”
Leape, 1994
Common Sense Risk Reduction
Strategies
45
“Hot Spots” for Negligence
(Rule Out The Worst Diagnosis Early )
Example:
1.
Middle-aged man experienced chest pain at
work
2.
NP evaluated and conferred with physician
3.
Providers diagnosed “muscle spasm” and gave
Valium Rx
4.
Went to ER was given codeine
5.
The next day went to the ER and after EKG
performed, was diagnosed with MI
6.
Plaintiff sued for lost wages and won against
Providers
46
CONSIDERATIONS
Follow established
national guidelines
as well as the policy
and procedures of
the organization in
which you are
practicing
Remember the
phrase, “Ordinary
reasonable care”
Would a reasonable
practitioner in your
situation make the
same decisions?
C
O
M
M
U
N
I
C
A
T
I
O
N
 
C
O
N
S
I
D
E
R
A
T
I
O
N
S
Electronic communications are discoverable (E-Mail,
etc.)
May be used to demonstrate admission of an error
May be used to demonstrate a pattern of mistakes that
have been admitted
47
Risk Management Strategies
Risk Management Strategies
“The Witness Whose Memory Never
Fades”
A Thorough Timely Medical Record
49
Defense Strategy
Comparative Negligence
Modified Comparative Fault 50% rule
:
An injured party can only recover if it is
determined that his or her fault is 49% or less.
Thus, no recovery if the Plaintiff is 50% or more
at fault
(Arkansas, Colorado, Georgia, Idaho, Kansas,
Maine, Nebraska, North Dakota, Oklahoma,
Tennessee, Utah, and West Virginia)
50
Defense Strategy
Comparative Negligence
Modified Comparative fault 51% rule
:
The injured party must be 50% or less at fault
to recover damages.   Thus no recovery if the
Plaintiff is 51% or greater, at fault
Ohio and Pennsylvania follows this rule of law
How might you incorporate this rule of law in
your daily clinical practice as a defensive
strategy?
R
i
s
k
 
M
a
n
a
g
e
m
e
n
t
s
 
s
t
r
a
t
e
g
i
e
s
Reduces Medical Liability Exposure
Ultimately produces better care for patients
52
Defensive Strategy
Comparative Negligence
Mr. Jones is a 62yo male who has a history of
HTN, DM, A-Fib, COPD, and CABG.
1.
Refusing to stop smoking “there is nothing you can say that will
make me stop”
2.
Frequently will “forget” to take his medication (all of them are
on the $4.00 list at Walmart)
3.
Refusing to get the abdominal US for the abdominal bruit due to
cost.
4.
Now that you know about comparative negligence what should
you focus on, in part, when  you document in the medical
record?
53
Defensive Strategy
Comparative Negligence
Speak to the Jury” when you chart
In the medical record:
1.
Quote Mr. Jones about his refusal to stop smoking.
Discuss that his decision can increase his risk for
morbidity and mortality
2.
Discuss the risks associated with “forgetting” to take his
medication.  Discuss ways to help him remember
3.
Explain why the abdominal US is needed and the risks of
a delay in diagnosis and/or treatment
4.
Have patient sign your note.  If you are using and EMR,
print your note and have the patient sign it, then rescan
it back into the EMR
5.
Send a certified letter
54
D
o
c
u
m
e
n
t
a
t
i
o
n
 
T
i
p
s
U
s
e
 
d
i
r
e
c
t
 
q
u
o
t
e
s
 
t
o
 
d
e
m
o
n
s
t
r
a
t
e
 
y
o
u
r
 
a
t
t
e
n
t
i
o
n
 
t
o
 
t
h
e
p
a
t
i
e
n
t
,
 
h
i
g
h
l
i
g
h
t
 
m
a
i
n
 
a
r
e
a
s
 
o
f
 
c
o
n
c
e
r
n
,
 
b
u
i
l
d
 
c
r
e
d
i
b
i
l
i
t
y
i
n
t
o
 
t
h
e
 
r
e
c
o
r
d
,
 
a
n
d
 
a
c
c
u
r
a
t
e
l
y
 
d
o
c
u
m
e
n
t
 
a
 
p
a
t
i
e
n
t
s
c
o
m
p
e
t
e
n
c
y
,
 
a
f
f
e
c
t
,
 
a
n
d
 
a
t
t
i
t
u
d
e
.
 
 
F
o
r
 
e
x
a
m
p
l
e
:
 
 
I
 
h
a
v
e
b
e
e
n
 
t
o
 
1
2
 
d
o
c
t
o
r
s
 
a
n
d
 
n
o
 
o
n
e
 
c
a
n
 
h
e
l
p
 
m
e
.
Risk Managements strategies
A more organized, office,  clinic, or hospital
operation for results and tests
N
O
 
N
E
W
S
 
i
s
 
N
O
T
 
j
u
s
t
 
G
O
O
D
 
N
E
W
S
Ultimately produces better care for patients
Communications
Communications
A
l
t
h
o
u
g
h
 
y
o
u
 
w
i
l
l
 
n
o
t
 
f
i
n
d
 
P
O
O
R
C
O
M
M
U
N
I
C
A
T
I
O
N
S
 
l
i
s
t
e
d
 
a
n
y
w
h
e
r
e
 
a
s
 
a
n
 
o
f
f
i
c
i
a
l
c
a
u
s
e
 
o
f
 
M
E
D
I
C
A
L
 
M
A
L
P
R
A
C
T
I
C
E
 
C
L
A
I
M
S
,
 
i
t
u
n
d
e
r
l
i
e
s
 
a
l
m
o
s
t
 
e
v
e
r
y
 
m
a
l
p
r
a
c
t
i
c
e
 
a
c
t
i
o
n
.
C
o
n
t
r
i
b
u
t
i
n
g
 
F
a
c
t
o
r
 
8
0
%
57
Documentation Tips
Documentation Tips
Further, quoting the patient’s abuse or threatening words
will sufficiently demonstrate their level of cooperation
and credibility, while removing any bias in your
interpretations
C
o
m
m
u
n
i
c
a
t
i
o
n
s
It is the combination of long wait times and a short visit
with the physician that yields the 
most negative 
results
on patient satisfaction
Patients who have short wait times and adequate
patient-doctor exam room time are the most satisfied
patients
59
Documentation Tips
I
n
c
l
u
d
e
 
s
u
p
p
o
r
t
i
v
e
,
 
r
e
p
r
o
d
u
c
i
b
l
e
 
o
b
s
e
r
v
a
t
i
o
n
s
:
 
 
I
f
 
a
c
h
i
l
d
 
a
p
p
e
a
r
s
 
n
o
n
t
o
x
i
c
,
 
l
i
s
t
 
r
e
a
s
o
n
s
 
t
o
 
j
u
s
t
i
f
y
 
t
h
i
s
d
e
s
c
r
i
p
t
i
o
n
,
 
s
u
c
h
 
a
s
 
c
h
i
l
d
 
i
s
 
o
b
s
e
r
v
e
d
 
c
l
i
m
b
i
n
g
 
o
n
 
a
n
d
o
f
f
 
t
h
e
 
e
x
a
m
 
t
a
b
l
e
,
 
s
m
i
l
i
n
g
 
a
t
 
i
n
t
e
r
v
a
l
s
 
a
n
d
 
i
s
 
h
o
p
p
i
n
g
 
o
n
o
n
e
 
f
o
o
t
 
w
h
i
l
e
 
i
n
 
t
h
e
 
e
x
a
m
 
r
o
o
m
Strengthening
The Medical Record
Write a full note. Write the positives and
the negatives.
Limit Abbreviations – Case – STD’s
Do not use “Dictated But Not Reviewed”.
61
D
o
c
u
m
e
n
t
a
t
i
o
n
 
T
i
p
s
A
f
t
e
r
 
p
e
r
f
o
r
m
i
n
g
 
a
n
y
 
p
r
o
c
e
d
u
r
e
s
:
 
a
l
w
a
y
s
 
d
o
c
u
m
e
n
t
t
h
e
 
c
o
n
d
i
t
i
o
n
 
o
f
 
t
h
e
 
p
a
t
i
e
n
t
 
a
f
t
e
r
 
t
h
e
 
p
r
o
c
e
d
u
r
e
:
 
For example: “Tympanic membrane visualized after
irrigation 
intact without any erythema
”.
62
Patient Education
Can Reduce Malpractice
T
h
e
 
R
o
l
e
 
o
f
 
t
h
e
 
t
e
a
m
p
r
o
v
i
d
i
n
g
 
c
a
r
e
N
e
v
e
r
 
A
l
t
e
r
 
t
h
e
 
M
e
d
i
c
a
l
 
R
e
c
o
r
d
 
-
N
E
V
E
R
S
L
 
 
S
i
n
g
l
e
 
L
i
n
e
 
t
h
r
o
u
g
h
 
t
h
e
 
e
n
t
r
y
I
 
 
I
n
i
t
i
a
l
 
t
h
e
 
l
a
t
e
 
e
n
t
r
y
 
a
s
 
a
n
 
E
r
r
o
r
D
 
 
D
a
t
e
 
t
h
e
 
e
n
t
r
y
E
 
 
N
o
t
e
 
E
R
R
O
R
 
i
n
 
t
h
e
 
a
r
e
a
.
S
.
O
.
A
.
P
.
E
.
R
.
S
 
 
S
u
b
j
e
c
t
i
v
e
O
 
 
O
b
j
e
c
t
i
v
e
A
 
 
A
s
s
e
s
s
m
e
n
t
P
 
 
P
l
a
n
E
 
 
P
a
t
i
e
n
t
 
E
d
u
c
a
t
i
o
n
R
 
 
R
e
a
c
t
i
o
n
 
t
o
 
P
a
t
i
e
n
t
E
d
u
c
a
t
i
o
n
.
 
 
E
B
I
65
Special Consideration
Special Consideration
Suits in an outpatient settings often involve the
mismanagement of tests.  An office practice should be
designed so that when tests are ordered, there is a fail-
safe mechanism to make sure that they are reviewed in
a timely manner.  A delay in treatment is a significant
source of liability in the outpatient setting.
66
Special Consideration
Special Consideration
Check your facility’s test log daily.
Call the lab to obtain the results.  If the results
are not available, document in the patient’s EMR
that you attempted to obtain the results:  “Spoke
with lab to obtain Mrs. C’s urine culture results,
but results are still pending”.
I
f
 
o
t
h
e
r
 
N
P
s
 
a
f
t
e
r
 
y
o
u
 
f
a
i
l
 
t
o
 
o
b
t
a
i
n
 
t
h
e
 
r
e
s
u
l
t
s
 
i
n
a
 
t
i
m
e
l
y
 
m
a
n
n
e
r
,
 
t
h
e
 
c
h
a
r
t
 
w
i
l
l
 
r
e
f
l
e
c
t
 
t
h
a
t
 
y
o
u
w
e
r
e
 
s
t
i
l
l
 
d
i
l
i
g
e
n
t
.
67
The Right to Understand
The Right to Understand
H
e
a
l
t
h
c
a
r
e
 
p
r
o
v
i
d
e
r
s
 
h
a
v
e
 
a
 
d
u
t
y
 
t
o
 
p
r
o
v
i
d
e
 
i
n
f
o
r
m
a
t
i
o
n
i
n
 
s
i
m
p
l
e
,
 
c
l
e
a
r
,
 
a
n
d
 
p
l
a
i
n
 
l
a
n
g
u
a
g
e
 
a
n
d
 
t
o
 
c
h
e
c
k
 
t
h
a
t
p
a
t
i
e
n
t
s
 
h
a
v
e
 
u
n
d
e
r
s
t
o
o
d
 
t
h
e
 
i
n
f
o
r
m
a
t
i
o
n
 
b
e
f
o
r
e
 
e
n
d
i
n
g
t
h
e
 
c
o
n
v
e
r
s
a
t
i
o
n
The 2005 White House Conference on Aging:  Mini Conference on Health
Literacy and Health
Lack of documentation
Lack of documentation
F
i
v
e
 
y
e
a
r
s
 
f
r
o
m
 
n
o
w
,
 
i
f
 
s
o
m
e
o
n
e
 
r
e
a
d
s
y
o
u
r
 
r
e
c
o
r
d
 
o
n
 
a
 
p
a
t
i
e
n
t
 
y
o
u
 
s
a
w
t
o
d
a
y
,
 
w
i
l
l
 
t
h
e
y
 
g
e
t
 
a
n
 
a
c
c
u
r
a
t
e
 
p
i
c
t
u
r
e
o
f
 
y
o
u
r
 
c
a
r
e
 
o
r
 
w
i
l
l
 
w
h
a
t
 
i
s
 
m
i
s
s
i
n
g
 
i
n
t
h
e
 
r
e
c
o
r
d
 
s
p
e
a
k
 
l
o
u
d
e
r
 
t
h
a
n
 
w
h
a
t
 
y
o
u
n
o
t
e
d
?
Slide Note
Embed
Share

Explore key aspects of medical malpractice, including negligence, duty of care, breach of duty, causation, and injury. Learn how to establish the need for knowledge to prevent errors, reduce risks, and navigate litigation. Discover ways to uphold the standard of care, consider legal responsibilities, and mitigate liabilities in healthcare practice.

  • Medical malpractice
  • Risk reduction
  • Legal elements
  • Healthcare practice
  • Negligence

Uploaded on Jul 31, 2024 | 0 Views


Download Presentation

Please find below an Image/Link to download the presentation.

The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.

E N D

Presentation Transcript


  1. The Provider: Medical Errors, Negligence, Litigation and risk reduction strategies Joel R. Garcia, MD FACC Chief Quality Officer Orlando Health Heart Institute

  2. Disclaimer This lecture does not, in any way, constitute legal advice or the practice of law and is not intended to replace legal counsel. 2

  3. Establishing the Need to Know Knowledge is empowering Move from fear- victim mode -to- proactive- preventive mode 3

  4. Anatomy of a Medical Malpractice Cause of Action A form of negligence Liability exists whether actions were intentional or unintentional Negligence results when the provider s conduct falls below the standard of care established to protect the patient from an unreasonable risk of harm 4

  5. Four Elements We Need to Know 1. Duty 2. Breach of Duty 3. Actual and proximate causation 4. Injury 5

  6. DUTY To provide a standard of care, that other reasonably prudent providers (MD s, NP s., PA s) in the same set of circumstances, would provide 6

  7. DUTY Standard of Care Considerations Medical Act of your State Board of Medicine defining your scope of practice National treatment guidelines Institutional treatment protocol/guidelines Expert testimony 7

  8. BREACH OF DUTY A deviation from the standard of care An expert witness may be deposed As a board certified provider (MD), national standards will be used, in part, as the benchmark of the acceptable standard of care 8

  9. ACTUAL AND PROXIMATE CAUSATION The analysis of the actual causation element involves the but for test But for the provider s action, injury would not have occurred Foreseeability the injuries were the result of the provider's action and the injuries were foreseeable before the injury occurred 9

  10. ACTUAL AND PROXIMATE CAUSATION A patient came to a medical office for a H+P. A NP took the history and noted that there was a remote history of ulcer with no recent complaints. The patient came back later complaining of back pain. A physician read the NP s history and initiated aspirin therapy. The patient developed a GI bleed. The patient sued the NP for failing to diagnose an ulcer and sued the physician for failing to order an endoscopy before starting the patient on aspirin. The court found for the NP and the physician. The court found that the patient had failed to prove a connection between the patient s GI bleed and failure to diagnose the ulcer in order to order an endoscopy earlier. The plaintiff failed to prove actual and proximate causation. 10

  11. HARM Injury must be proven By presentation of: Medical bills Expert testimony Direct evidence of pain and suffering 11

  12. Systematic Approach to Primary Prevention of Malpractice Incorporate a review of the elements of medical malpractice into each encounter Reflexive process of thinking 12

  13. Medical Errors, Negligence, and Litigation I. II. III. IV. Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

  14. Accidental Deaths in the U.S.

  15. Definitions Error Failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e. error of planning) Adverse Event (AE) An injury caused by medical management rather than the underlying condition of the patient Preventable Adverse Event An adverse event attributable to an error

  16. Relationship of Medical Errors to Adverse Events Preventable AEs Medical Errors Accidental errors

  17. Epidemiology of Medical Errors California Medical Insurance Feasibility Study (1974) 20,864 hospital admissions 4.65 injuries per 100 hospitalizations Harvard Medical Practice Study (1984) 30,121 hospital admissions in NY state Reported adverse events (AE s) 3.7% of admissions had an AE

  18. Harvard Medical Practice Study

  19. Quality in Australian Health Care Study Reviewed 14,179 admissions in 1995 16.6% of admissions had an AE s Permanent disability 13.7% Death 4.9% 51% of events preventable Source Wilson, 1995

  20. To Err is Human IOM releases report To Err is Human (2000) Estimates 44,000 to 98,000 unnecessary deaths each year due to medical error Estimated 1,000,000 excess injuries due to medical error Numbers based on the MPS and extrapolated to the general population

  21. Deaths due to Medical Error 44,000 to 98,000 unnecessary deaths each year More Americans are killed in US hospitals every 6 months than died in the entire Vietnam War Death rate equivalent to three jumbo jet crashed every two days

  22. Where do these numbers come from and why might they be overestimated Methods Physician implicit judgment Causality of death difficult Kappa statistics low Overcoming these shortcomings Utilizing more reviewers Requiring greater agreement Requiring assessment of overall prognosis

  23. Views of the Public on Medical Errors Percentage of adults experiencing an error Medication or medical error 22% Mistake at the physician s office or hospital 10% Wrong medication or dose 16% Source- The Commonwealth Fund, 2001

  24. Views of Practicing Physicians and the Public on Medical Errors Response Physicians (N = 831) Public (N = 1207) P Value All Respondents percent 35 42 <0.001 Error made in own or family member s care Health consequences: (Serious) 18 24 <0.001 Respondents reporting an error 70 81 <0.001 Parties who had a lot of responsibility for the error: (Doctors) Health professional told respondent an error had been made 31 30 <0.001 Possible solutions to the problem of medical errors Increasing lawsuits for malpractice 1 23 <0.001 Hospital reports of serious medical errors should be: Confidential 86 34 <0.001 Made public 14 62 <0.001 Source- Blendon, 2002

  25. Disposition of Claims According to the Rating of the Plaintiff's Injury and Degree of Disability Rating No. of Closed Cases Settled for Plaintiff Mean Settlement $ no (%) Type of injury No adverse event 24 10 (42) 28,760 Adverse event 13 6 (46) 98,192 Negligent adverse event 9 5 (56) 66,944 Disability None 24 10 (42) 28,760 Temporary 14 4 (29) 38,857 Permanent 8 7 (88) 201,250 All claims 46 21 (46) 55,853 Source Brennan, 1996

  26. 1000 All Injuries All Negligent Injuries 280 Files a Claim 36 13% of Negligent Injuries Results in a Claim

  27. Negligent Medical Injuries All Hospitalizations Negligent Injuries (1-2%) Sources- Mills et al. (1977), Brennan et al. (1991), IOM (1999).

  28. Negligent Injuries that Did Not Result in a Claim 27,179 adverse events due to negligence 26,764 with no malpractice claim (98%) 415 malpractice claims (2%) 14,180 with strong evidence of negligence 12,858 with disability 7462 with disability < 6 mo (58%) 5396 with disability 6 mo (42%) Source Localio, 1991

  29. Medical Errors 42% of public report a medical error 66% reported serious consequences such as severe pain, substantial loss of time at work or school, disability or even death Only 6% had sued

  30. Why is medicine so susceptible? Lack of awareness to the problem Culture of Silence Blame and shame mentality System constraints Staffing problems Fatigue Knowledge requirements Communication and continuity of care

  31. The State of Medical Malpractice Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care Source Localio, 1991

  32. Medical Errors, Negligence, and Litigation I. II. III. IV. Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

  33. Reasons Why People Sue Their Doctors Percent Expressing Concern Advised to sue by influential other Needed money Believed there was a cover-up Child would have no future Needed information Wanted revenge, license 32 24 24 23 20 19 Source - Hickson, 1992

  34. Malpractice Risk Malpractice activity is disproportionate among physicians 75% - 85% of awards, settlement costs over a 5- year period made on behalf of 1.8% of internists 6.0% of obstetricians 8.0% of surgeons Source- Sloan, 1989, Bovbjerg, 1994

  35. Malpractice Activity and Patient Complaints Physician Characteristic Total Physicians (N = 645) Surgeons (N = 219) Mean Number of Complaints No lawsuits (N = 102) 6.1 1 lawsuit (N = 82) 16.7 2 or more lawsuits (N = 35) 35.1 Non-surgeons (N = 426) No lawsuits (N = 361) 4.7 1 lawsuit (N = 57) 9.2 2 or more lawsuits (N = 8) 4.6 Source Hickson, 2002

  36. Nine Percent of Physicians Account for Fifty Percent of the Complaints % of Complaints 100 90 80 70 60 50 40 30 20 10 0 30 40 50 60 70 80 90 100 % of Physicians Source Hickson, 2002

  37. Communication and Malpractice Claims Primary Care Physicians (n = 59) Variable No Claims (n = 29) Claims (n = 30) P- Value Visit length, min 18.3 15.0 < 0.05 No. of utterances per 15-min visit: Content Asks questions- medical 18.3 16.9 NS Gives information medical 28.5 26.3 NS Process: Facilitation (Physician) 19.4 11.9 < 0.05 Orientation (Physician) 14.5 11.2 < 0.05 Affect Laughs (Physician) 4.8 3.4 < 0.05 Laughs (Patients) 7.8 7.5 NS Source Levinson, 1997

  38. Communication and Malpractice Claims Prior Malpractice Claims Group Category of complaint, % No Claims High Frequency P - value Physician-patient communication 8.2 27.6 0.01 Would not talk 6.7 23.5 0.01 Did not listen 1.9 7.1 0.01 Humanity of a physician 4.8 17.4 0.01 Yelled 4.8 9.2 0.15 No concern for me as a person 1.4 8.7 0.01 Source Hickson, 1994

  39. Medical Errors, Negligence, and Litigation I. II. III. IV. Medical Errors Relationship of Medical Errors to Negligence Why do People Sue their Doctors? Potential Solutions to the Problem of Medical Errors

  40. Malpractice as a Barrier to Safety Physicians overestimate the risk of being sued Less likely to report errors as a result

  41. Other Potential Solutions Learn lessons from other industries Aviation, Military, Nuclear Power Development of IT infrastructures POE, Communication Less reliance on memory Restriction on working hours AAMC proposed guidelines (80 hour week) Greater staffing to patient ratios Improved nursing jobs Organizational Culture

  42. Physicians and nurses need to accept the notion that error is an inevitable accompaniment of the human condition, even among conscientious professionals with high standards. Errors must be accepted as evidence of system flaws not character flaws. Leape, 1994

  43. Common Sense Risk Reduction Strategies

  44. Hot Spots for Negligence (Rule Out The Worst Diagnosis Early ) Example: 1. Middle-aged man experienced chest pain at work 2. NP evaluated and conferred with physician 3. Providers diagnosed muscle spasm and gave Valium Rx 4. Went to ER was given codeine 5. The next day went to the ER and after EKG performed, was diagnosed with MI 6. Plaintiff sued for lost wages and won against Providers 45

  45. CONSIDERATIONS Follow established national guidelines as well as the policy and procedures of the organization in which you are practicing Remember the phrase, Ordinary reasonable care Would a reasonable practitioner in your situation make the same decisions? 46

  46. COMMUNICATION CONSIDERATIONS Electronic communications are discoverable (E-Mail, etc.) May be used to demonstrate admission of an error May be used to demonstrate a pattern of mistakes that have been admitted 47

  47. Risk Management Strategies A Thorough Timely Medical Record The Witness Whose Memory Never Fades

  48. Defense Strategy Comparative Negligence Modified Comparative Fault 50% rule: An injured party can only recover if it is determined that his or her fault is 49% or less. Thus, no recovery if the Plaintiff is 50% or more at fault (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia) 49

  49. Defense Strategy Comparative Negligence Modified Comparative fault 51% rule: The injured party must be 50% or less at fault to recover damages. Thus no recovery if the Plaintiff is 51% or greater, at fault Ohio and Pennsylvania follows this rule of law How might you incorporate this rule of law in your daily clinical practice as a defensive strategy? 50

More Related Content

giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#giItT1WQy@!-/#