HEALTH CARE RISK MANAGEMENT Suzette Goucher, J.D., R.N.

 Prior to a Notice of Claim / Notice or Intent  Provider Resilience Support  Avoid costs and stresses of litigation  We can facilitate interactions with families  We also work with attorneys if you are ever subpoenaed or asked for a deposition

 Take care of the patient  Discuss with the patient and family as soon as possible. Open and honest communication has been key to the decline in medical malpractice claims  Document objectively without placing blame  Ensure there is careful documentation in the medical record about the event and the effect upon the patient

 Risk Management is notified of and investigates F. G. and H. events F. HARM – Temporary Intervention Needed G. HARM – Permanent H. DEATH

 Unanticipated, negative outcomes  Neurological injury  Medication errors  Falls  Maternal/fetal injury or death  Implant device failures  Serious patient injury  Patient or family threaten to sue

◦ First, talk to the family. Our experience shows disclosure is best accomplished by the Attending physician, or the physician with the best relationship with the patient  “I am so sorry you or your loved one was harmed.”  “We weren’t expecting this to happen.”  “We are going to look into what happened.”  Avoid speculation and misstatements.  For instance do not say “It was anesthesia’s fault” or “It was the wrong drug”. ◦ Second, participate in investigation with Risk Management. ◦ Third, follow up with the patient/family. Call Risk Management if you need help with the process

 Failure to diagnose  Failure to refer  Procedure complications  Failure to obtain informed consent  Inadequate communication  Inadequate history and physical  Patient dissatisfaction with outcome/unrealistic expectations

Interns and residents are named in about 30% of the Notices of Intent/Notices of Claim filed against the University each year.

1)Duty Doctor had a responsibility for the patient and in specific cases the duty can extend to a non-patient 2)Breach Did not meet the standard of care 3)Causation Breach caused an adverse event 4)Damages The Patient actually suffered damages

 Notice of Claim/Notice of Intent  Pre-litigation Panel  Complaint  Discovery  Trial

 In Writing  Nature and Purpose of the proposed Procedure  Discussion of Risks, Benefits, potential Complications & Alternatives  Who will perform the procedure  Opportunity to ask & have all questions answered  Emergency Exception

 University Health Care Maintains an SIR Trust with excess liability coverage.  No policy number  $1 million/claim and $3 million aggregate  Tail Coverage is provided  Dates of coverage is for the period of your residency/fellowship.  NOI/Prelit/Complaint/Status  Claims are settled on behalf of the University and not you individually.

 Utah Tort Law – State laws govern medical malpractice ◦ Statute of Limitations – 2 years after discovery of legal malpractice ◦ Damage Caps – $450,000 for non-economic (pain and suffering) damages ◦ Damage Cap - does NOT apply to wrongful death cases ◦ Limits on non-patient cause of action ◦ Periodic Payments – insurance can make payments over extended time ◦ Attorney Fee Limits – limit on the total amount an attorney can claim ◦ Joint-and-several Liability Rule – defendants are liable for the proportion in which they contributed to the malpractice ◦ Prelitigation Screening – all cases are prescreened to determine if case has merit ◦ Certificate of Merit Requirement – medical professional must provide certificate verifying claim has merit Utah Malpractice Laws

 Smaller paid claims are down  Percentage of claims above $1 million and percentage of claims of $5 million have both increased over time  Litigation costs have remained the same

Complex care and higher risk High cost providing medical care over a child’s lifetime

 Communication Problems ◦ Informed Consent ◦ Care Transitions ◦ Discharge Instructions ◦ Provider Discord

Open and honest communication has been key to the decline in medical malpractice claims

When asked if anything could have been done to avert legal action, 37% said an explanation and apology would have made a difference. In another study, 24% said they filed when “they realized the physician had failed to be completely honest with them about what happened, allowed them to believe things that were not true, or intentionally misled them.”

 Inaccurate or inconsistent documentation creates questions of fact the jury will decide  Sloppy notes = sloppy care  Assume records will be read by a jury or family  Just state facts about the care without editorializing  Don’t bare soul or admit liability  If you mention a problem in progress notes, make certain that orders reflect/address concern

 Don’t use the medical record as a battleground to settle grudges with other staff members.  The professionalism of the staff should be reflected throughout the medical record documentation.  Do chart complications objectively without assessing fault  Do chart awareness & involvement of physician or other health care provider

Educate providers Guide the process Assist with fact finding Determine liability Walk through the process Provide support to providers Work with patients and their families Work to resolve cases before families hire an attorney Depositions Subpoenas

RISK MANAGEMENT CONTACT:  (801)  RL6  PAGE US ON SMART WEB OR CALL HOSPITAL OPERATOR - AVAILABLE 24/7