Medical Malpractice: A Physician’s Perspective Kevin Biese, MD March 5 th, 2007

The Effect of CAPSTONE

2 Requirements to be Good Intern 2 Requirements to be Good Intern Try Hard Try Hard Be Honest Be Honest

Simple Phrase “I Don’t Know” So Use Your Resources

Bad News You Will get Sued You Will get Sued 1 case per 10 physician years 1 case per 10 physician years Some of you during residency Some of you during residency Over 20% of cases from academic centers involve residents Over 20% of cases from academic centers involve residents It happened to me It happened to me But I still have a job But I still have a job

You Are a Doctor Unfortunately, (usually) the law does not differentiate resident from attending Unfortunately, (usually) the law does not differentiate resident from attending So you are responsible So you are responsible However, you have lots of help However, you have lots of help Attendings Attendings Resident Resident Nurses Nurses Books Books UptoDate …….. UptoDate ……..

Communication is Key

Does the System Work: Medical Malpractice Goals Deter bad care Deter bad care Compensate the victims Compensate the victims

The Data: Harvard Medical Practice Study Review of 31,429 random patient charts from 52 NY hospitals from 1984 Review of 31,429 random patient charts from 52 NY hospitals from 1984 Looked for adverse events (injury caused by medical management) Looked for adverse events (injury caused by medical management) First screen by NP for specific criteria (hospital trauma, drug reactions, readmission) First screen by NP for specific criteria (hospital trauma, drug reactions, readmission) Next 2 physicians determined if adverse event Next 2 physicians determined if adverse event Finally physicians determined if negligence had caused the adverse event Finally physicians determined if negligence had caused the adverse event

Harvard Medical Practice Study 31,429 in sample 7817 positive screen 1278 adverse events 306 with negligence

Harvard Medical Practice Study 3.7% hospitalized patients with adverse events 3.7% hospitalized patients with adverse events 1% hospitalized patients adverse events secondary to negligence 1% hospitalized patients adverse events secondary to negligence Extrapolation -In NY State in 1984 Extrapolation -In NY State in ,129 Injuries secondary to negligence 27,129 Injuries secondary to negligence 6895 Deaths secondary to negligence 6895 Deaths secondary to negligence

Part II - Harvard Medical Practice Study Examined types of errors and their association with negligence Examined types of errors and their association with negligence Operative (53% of total / 17% negligent) Operative (53% of total / 17% negligent) Drug-related (16% of total / 17% negligent) Drug-related (16% of total / 17% negligent) Diagnostic (7% of total/ 75% negligent) Diagnostic (7% of total/ 75% negligent) 70% of errors in ED associated with negligence (many diagnostic decisions) 70% of errors in ED associated with negligence (many diagnostic decisions)

Part III - Harvard Medical Practice Study Association of adverse events to malpractice claims Association of adverse events to malpractice claims 47 cases from 47 cases from original 31,429 patients original 31,429 patients

Part III - Harvard Medical Practice Study Group Number in Sample Number of Claims No adverse event 28,63526 Unlikely Adverse Event 3353 Adverse event; no negligence Adverse event; yes negligence 2808

Part III - Harvard Medical Practice Study: Conclusions Many more negligent injuries than claims Many more negligent injuries than claims 98% of negligent injuries do not result in claim 98% of negligent injuries do not result in claim Ratio negligence to claims = 7.6 to 1 Ratio negligence to claims = 7.6 to 1 Poor correlation between negligent injuries and claims Poor correlation between negligent injuries and claims Malpractice Goals Malpractice Goals Deter bad care Deter bad care Compensate victims Compensate victims

Part IV - Harvard Medical Practice Study 10 yr follow up of malpractice cases 10 yr follow up of malpractice cases No adverse events: 10/24 plaintiff No adverse events: 10/24 plaintiff Adverse event, no negligence: 6/13 plaintiff Adverse event, no negligence: 6/13 plaintiff Adverse event, negligence: 5/9 plaintiff Adverse event, negligence: 5/9 plaintiff Only independent predictor of payment was permanent disability Only independent predictor of payment was permanent disability No association between adverse event (p=0.79) or negligence (p=0.32) and payment No association between adverse event (p=0.79) or negligence (p=0.32) and payment

Conclusion We are playing football on the freeway – we get pretty good at it, but you are gonna get hit We are playing football on the freeway – we get pretty good at it, but you are gonna get hit It is often not about you – we usually get sued for bad outcomes not bad practice It is often not about you – we usually get sued for bad outcomes not bad practice But, there are a lot of errors But, there are a lot of errors And harm done … And harm done …

What to do Communicate Communicate Say when you do not know Say when you do not know Contact hospital legal as situations arise Contact hospital legal as situations arise Be kind Be kind

What Not to Do DO NOT DO NOT Pass judgment in the chart Pass judgment in the chart You will become a plaintiff witness You will become a plaintiff witness Advise a patient to sue Advise a patient to sue Carelessly Carelessly Abandon your patient when something goes wrong Abandon your patient when something goes wrong Modify the chart Modify the chart

Final Thoughts Most of us will get sued Most of us will get sued We get sued for bad outcomes rather than bad practice We get sued for bad outcomes rather than bad practice Be honest and willing to acknowledge what you do not know Be honest and willing to acknowledge what you do not know Ask for help Ask for help Be Kind Be Kind