Legal Issues in the Emergency Department

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

2. Outline • Litigation in the Canadian ED – Stats, Process • Factors that contribute to malpractice litigation – system factors, patient factors, physician factors. • What can you do to protect yourself? • “Defensive” Medicine

3. Options for aggrieved patients • “Patient safety response” • College complaints • Litigation

4. 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.

5. 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.

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

7. Where do we fit in? • Emergency physicians outside of Ontario and Quebec (that’s 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)

8. 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

9. Comparison with other countries • 0.04 claims per 1000 population in Canada • USA – 0.18 • UK 0.12 • Australia 0.12

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

11. 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!

12. If you’re 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

13. 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.

14. A little more about the CMPA • Big organization • Hundreds of millions in the bank • If in trouble… call early

15. 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.

16. Let’s 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.”

17. Two ways of looking at this • Before: Stopping the legal action before it starts. • After: Making sure you’re cool if you get hit with the subpoena. *not mutually exclusive approaches

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

19. Pertinent Factors • System factors • Patient factors • *Physician factors

20. 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

21. 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

22. The Physician • Just a crap shoot, right? • Not exactly

23. What we have here is a failure to communicate

24. The literature says… • Positive physician communication matters • Increases patient’s perception of competence and decreases malpractice claim intentions

25. 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

26. 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.

27. Disclosure • We all believe in it (in theory) • We don’t all do it (in practice) • Patients want not just disclosure – genuine apology! • If no harm, do you still tell?

28. 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.

29. 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

30. Tips(Courtesy of the CMPA)

31. 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?

32. If you haven’t got something nice to say, don’t say anything at all. • Avoid subjective and disparaging comments relating to the care provided by colleagues and other health care professionals • Why? • If there’s a lawsuit, you might get dragged into it too • You might not know the whole story

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

34. 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

35. 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.

36. 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.)

37. Responsibility of supervising physicians • Is the task appropriate to delegate to an individual with the trainee’s 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?

38. 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.

39. 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.

40. 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.

41. Defensive medicine cont’d • Duty to: • The patient • Society • Yourself (the responsible physician)

42. Summary • Chances of getting sued are actually pretty low (but it’s 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 you’re a competent MD • Be a decent human being – treat your patients with respect, honesty, humour.

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

44. Let’s imagine 35 year old woman with a headache. Gets these headaches on a regular basis, has been to multiple doctors, they’ve 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.

45. 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.

46. 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?

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

48. 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.