Avoiding Malpractice Lawsuits and Dealing with Them When They Arise Matthew D. Murphy

GOOD NEWS – YOU ARE TRUSTED GALLUP POLL - LATE 2017 RATED PUBLIC’S TRUST IN 15 PROFESSIONS – HONESTY AND ETHICS NURSES NUMBER 1 (82%) DOCTORS NUMBER 4 (65%) LAWYERS NUMBER 13 (18%)

I’m Really Not That Bad

BAD NEWS 1) YOU ARE TRUSTED - Something Goes Wrong = Patient can be even more angry and feel betrayed 2) MEDICINE AS BIG BUSINESS - Public generally has distrust of big business 3) MEDIA, INTERNET, AND INFORMATION SHARING - Local Media - National Media - USA TODAY Article - Title: Hospitals know how to protect mothers. They just aren’t doing it. “Today, this is the most dangerous place in the developed world to give birth.” - Chat Rooms; Google; WebMD; ETC.

MEDSCAPE MALPRACTICE REPORT 2017 STATISTICS Medscape.com – 4,000 Physicians Across 25+ Specialties Over ½ Had Been Named in a Lawsuit OB/GYN – Tied with Surgeons for Being Sued Most Often Top 2 Reasons for the Lawsuit Failure to Diagnose/Delay in Diagnosis Complications from Treatment/Surgery Hours Spent on Defense 33% = 40+ Hours

TYPES OF LIABILITY CLAIMS 1) TRADITIONAL MALPRACTICE DUTY BREACH OF THE STANDARD OF CARE (NEED EXPERT) NURSING – MONITOR/COMMUNICATE/UPDATE PHYSICIANS – DECISION/TECHNIQUE/MONITOR CAUSATION (NEED EXPERT) W/O EXPERT = MOTION FOR SUMMARY JUDGMENT DAMAGES

TYPES OF LIABILITY CLAIMS CONT. . . 2) LACK OF INFORMED CONSENT WHAT IS IT – SD Pattern Jury Instructions: A physician has the duty to obtain a patient’s informed consent to medical treatment before providing that treatment. Must Disclose: All known material or significant risks as well as reasonably available alternatives.  Must also disclose risks of foregoing the proposed treatment = INFORMED REFUSAL Not Required: Extremely remote risks or those risks known to patient (or average person would be aware of) Not Required: Providing emergency treatment

INFORMED CONSENT CONT. . . . Liable if: an undisclosed risk causes injury and had the risk been disclosed, a reasonable person in the plaintiff’s position would not have agreed to the proposed treatment. NO EXPERT HE SAID/SHE SAID PROBLEMS – POOR CONSENT NO DOCUMENTATION AT ALL “RISKS/BENEFITS” DISCUSSED – NOT GOOD ENOUGH PATIENT NOT SIGN OFF

INFORMED CONSENT CONT. . . . GOOD CONSENT - DOCUMENT SIT DOWN AND DISCUSS WITH PATIENT/FAMILY NOT WHEN PATIENT HAS BEGUN ANESTHESIA TWICE - CLINIC & PRE-PROCEDURE DOCUMENT SPECIFIC RISKS INCLUDING BUT NOT LIMITED TO . . . USE FACILITY’S CONSENT FORMS AND PUT IN YOUR NOTE PHYSICIAN AND PATIENT SIGN

TYPES OF LIABILITY CLAIMS CONT. . . 3) FRAUD/BATTERY UNNECESSARY PROCEDURE FRAUDULENTLY INDUCED CONCEALMENT DO NOT GO BACK AND CHANGE RECORDS AFTER LAWSUIT OR NOTICE OF CLAIM WHEN YOU NEED TO INFORM A PATIENT OF AN ISSUE, DO SO AND DOCUMENT IT EX. KIDNEY CASE 4) IMPROPER CREDENTIALING/HIRING/TRAINING Why?

TOOLS DEFENDANTS HAVE PRE-SUIT 2 YEAR STATUTE OF REPOSE CONTINUING TREATMENT? FRAUD CASES? DURING THE LAWSUIT PHYSICIAN/PATIENT PRIVILEGE PEER REVIEW PROTECTION OTHER PROCEDURAL/DISCOVERY RULES EXPERT REQUIREMENTS ADVERSE RESULT DAMAGES CAPS QUANTIFIABLE (UNLIMITED) VS. NON-QUANTIFIABLE ($500K)

LITIGATION PROCESS 1) Service of a Complaint A. Inform insurance company, employer and risk manager immediately B. Don’t talk C. Don’t write anything down unless directed to do so by your lawyer D. Don’t change chart – Deletion or Addition – AUDIT TRAIL E. Don’t get rid of anything potentially relevant F. No recorded statement G. Prepare to meet lawyer 1. Read chart 2. Offer insights 3. Provide medical research/literature 4. Ask questions 5. Help defend your case

LITIGATION PROCESS CONTINUED 2) DISCOVERY, INCLUDING DEPOSITIONS – Meet with your Attorney to Prepare MEDSCAPE MALPRACTICE REPORT

LITIGATION PROCESS CONTINUED 3) EXPERT DISCLOSURES - Plaintiff: 1) Standard of care expert 2) Causation expert 3) Life care planner 4) Economist - Defendant(s) – IF POSSIBLE: 3) Life care planner (maybe) 4) Economist (maybe)

LITIGATION PROCESS CONTINUED 4) Motion for Summary Judgment & Daubert Motion - Usually only possible if Plaintiff does not have an expert 5) Trial - Less than 2% 6) Do’s and Dont’s a. Don’t throw stones b. No, we will not sue the plaintiff c. No, we will not sue their lawyer d. No, we will not sue the other doctors e. No, we will not sue the judge LITIGATION IS A MARATHON

WHY ARE YOU GETTING SUED? 1) Bad Outcome 2) Collection of Bills 3) Anger at Provider – Patients may feel the provider: a. Had No time b. Did Not care c. Did Not explain d. Was Not “sorry” e. Was Arrogant f. Avera Uses AIDET – acknowledge, introduce, duration, explain, thank - Every employee; Every time they walk into a room 4) Guilt

MOST EFFECTIVE WAYS TO DISCOURAGE/DEFEND MEDSCAPE – Better Communication/rapport with patients Patients lack medical knowledge so they use quality of physician interaction as primary means to define the quality of their care 1. Take time to visit 2. Listen 3. Eye contact 4. Not rushed, avoid distractions 5. Invite spouse/family 6. If bad outcome, talk

STRONGEST DEFENSE DOCUMENTATION B. Juries/Judges Trust It A. Most Reliable Source of Information B. Juries/Judges Trust It C. Memory Not Good Enough D. “If not charted, did not happen”

DOCUMENTATION CONT. . . Good Documentation 1. New patients complete health history form/medication list 2. Allergies/Reactions 3. Factual – Accurate 4. Complete 5. Timely a. Time and Date b. Sign 6. Legible 7. Note no shows/cancellations/non-compliance 8. Notify/Note labs, diagnostic tests, good or bad 9. Follow up Appointment 10. BAD OUTCOME – DO NOT SPECULATE

INTERNAL QUALITY INVESTIGATIONS AND ISSUES WITH CO-WORKERS FOLLOW YOUR FACILITY’S INTERNAL PROCESSES FOR: A. ADVERSE OUTCOME INVESTIGATIONS/ROOT CAUSE ANALYSIS - Can be protected by peer review statutes if we can show the proper statutes and internal policies were followed B. PROBLEMS YOU SEE WITH OTHER PROVIDERS - Follow your internal reporting processes. See Policies and/or Bylaws. - Protects: a. You b. Patients - Improves patient care c. Your facility d. At-issue provider

Top 5 Avoidable HIPAA Mistakes 1) Lost or Stolen Devices. Theft of PHI is one of the most common occurrences that results in HIPAA fines and continues to be a major problem for health care providers. 2) Social Media/Gossip. Posting patient photos or otherwise discussing patients on social media or in social settings, even without mention of a patient’s name, is a likely HIPAA violation. 3) Chart-peeking. Employees get curious and access patient records at which they have no reason to look. This is a HIPAA violation. 4) Mishandling of Medical Records. An all too common occurrence where an employee misplaces or leaves a physical medical record of a patient in the wrong location for anyone to pick up and review. 5) Off-site Access to Patient Data. Use of home computers or mobile devices to view and/or transmit medical data runs increased risk of HIPAA violations. Oftentimes a home computer does not possess the same level of security as a computer within the health care provider’s firewall.

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