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 (cont’d) • 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., Black’s Law Dictionary, 6th ed, p. 959

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. Paul’s 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 (cont’d) • 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

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 Physician’s 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 2004;350:283-292

16. Case Study Troyen A. Brennan et al; Annals of Internal Medicine; 2003 • Ms. T presents w/ 3 d fever, N/V • T:38.3, 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 @ 15L→ sats now 91% • Dr H paged & arrived in minutes

17. Case study (cont’d) • 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 (cont’d) • 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 (cont’d) 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. H’s 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 Plaintiff’s 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 • Plaintiff’s 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 (cont’d) • Defendant’s attorney after a long pretrial period of fact finding, expert witness reviews & depositions finds his client’s 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 (cont’d) • Factors that Dr H’s attorney considered: a) How likely is the jury to favor the physician? b) If the jury found Dr H guilty, what would Ms T’s damages amount to (economic & non economic) ? c) What is his gut instinct about the case’s 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 & attorney’s 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 Zealand’s 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 Zealand’s no fault system (cont’d) • 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

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 1996;335:1963-1967

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 1996;335:1963-1967

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 (cont’d) • 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 physician’s 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 (cont’d) • Federal government’s 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 don’t talk to a pt, he’ll talk to a lawyer) • Check lab & imaging reports, ensure they are read and followed up • If there is an error don’t 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 state’s 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 don’t support this. MDs are reluctant about disclosure & so there is underreporting & lack of communication about errors

40. Conclusion (cont’d) • 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