MALPRACTICE

Society for Academic Emergency Medicine Law u Common, Statutory, Administrative u Federal & State u Civil & Criminal

Society for Academic Emergency Medicine Law u Common - Judiciary u Statutory - Legislature u Administrative - Executive

Society for Academic Emergency Medicine Law u Federal u State - Themes with variations

Society for Academic Emergency Medicine Law u Civil *Monetary damages u Criminal *Monetary fines *Prison

Society for Academic Emergency Medicine LAWYERS VS DOCTORS u Litigation -- a painful, tiresome experience u Injuries are usually severe *52% anatomic deformity or death *20% emotional impairment u > 70% against ER docs, surgeons, OBGYNs u Only 1.5% harmed by medical Tx actually file suit *Even in the “litigious” US, chance of a doctor being sued after negligent event is only 1 in 50 Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999 Hyatt, et al, “A study of medical injury and med mal: An overview,” NEJM, 1989

Society for Academic Emergency Medicine Malpractice Malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances

Society for Academic Emergency Medicine Malpractice u Duty + Breach + Causation + Damages =Liability *Duty—physician owes duty to patient *Breach—deviation from standard of care *Causation—patient must sustain injury *Damages—physician’s actions are cause of the injury

Society for Academic Emergency Medicine Malpractice Elements u Duty *derives from the establishment of physician patient relationship *duty to provide the standard of care

Society for Academic Emergency Medicine Malpractice Elements u Breach = deviation from standard of care = "average prudent practitioner" established by any of the following: *expert testimony *industrial standards *common knowledge or "res ipsa loquitur" is the thing speaks for itself *judicial determination

Society for Academic Emergency Medicine Malpractice Elements u Causation = "proximate cause"(= legal cause) including partial causation

Society for Academic Emergency Medicine Malpractice Elements u Damages *medical costs and lost wages *pain and suffering

Society for Academic Emergency Medicine Why do patients sue? u “Original injury is not enough.” u Prime concern: perceived lack of caring u Lack of communication, dishonesty, pt ignored/neurotic u Over 1/3 would have opted out of litigation with explanation, apology Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999 Vincent, Young, Philips, “Why do people sue doctors?” Lancet, 1994

Society for Academic Emergency Medicine ABCD of avoiding malpractice suit u Attitude—defuse patient angers, resentments, fears and anxieties u Balance—understand the patient’s problem complemented by professional caring u Communication with patient and family u Documentation

Society for Academic Emergency Medicine Malpractice Defenses u Good Samaritan u Statute of Limitations u Local vs National Standards of Care u Alternative Treatment-- doctor’s action were entirely appropriate because the doctor choose between two acceptable courses of recognized treatment. u Clinical innovation--this defense is more likely to succeed in cases where the conventional treatments have been tried and failed u Contributory fault -- patient’s own actions were a contributing cause to the resulting injury

Society for Academic Emergency Medicine Medical Malpractice Insurance u Name of the Company u Name of the insured u Limits of Liability $1, 000,000 per patient $3, 000,000 per aggregate total u Types *Claims made vs Occurrence *Insurance Gaps: Tail vs Nose

Society for Academic Emergency Medicine Claims-Made  The most common type of professional liability coverage available, it provides protection for claims that occur and are reported while the policy is in effect (coverage period)  Claims reported after the policy is discontinue are not covered unless Tail coverage (Reporting Endorsement) or Prior Acts coverage (“Nose”) is purchased

Society for Academic Emergency Medicine Insurance Gap When the coverage period of a claims-made policy has expired without renewal, claims that have not yet been made and reported to the carrier are not covered, and a physician is uncovered unless… An extended reporting endorsement (tail coverage) is purchased from the former carrier An extended reporting endorsement (tail coverage) is purchased from the former carrier Prior acts (nose coverage) is purchased from a new carrier Prior acts (nose coverage) is purchased from a new carrier

Society for Academic Emergency Medicine u Purchase insurance gap when *Switching policy *Changing claims-made insurance companies *Retiring Insurance Gap (cont)

Society for Academic Emergency Medicine Occurrence Coverage u A type of malpractice policy which provides ongoing insurance protection for covered events which occur within the policy period, even if they are reported after the policy expires. u There is no need to purchase a tail coverage or prior acts coverage.

Society for Academic Emergency Medicine Things to know about your malpractice insurance carrier u Are they licensed? u Are they financially stable? u Are they experienced? u Do they have a proven record of physician customer satisfaction? u How do they defend claims?

Society for Academic Emergency Medicine Litigation Stress u Talk to Colleagues u Get professional advice u Participate actively in your defense u Prepare for either outcome u Learn from the experience u Take care of yourself

Society for Academic Emergency Medicine Litigation Stress (cont) u Share your feeling/pains with family & friends for they are blessings for your heart

Society for Academic Emergency Medicine Questions Author Credit – Malpractice: Arthur Derse MD JD & David Cheng MD

Society for Academic Emergency Medicine Postresidency Tools of the Trade CD 1) Career Planning – Garmel 2) Careers in Academic EM – Sokolove 3) Private Practice Career Options - Holliman 4) Fellowship/EM Organizations – Coates/Cheng 5) CV – Garmel 6) Interviewing – Garmel 7) Contracts for Emergency Physicians – Franks 8) Salary & Benefits – Hevia 9) Malpractice – Derse/Cheng 10) Clinical Teaching in the ED – Wald 11) Teaching Tips – Ankel 12) Mentoring - Ramundo 13) Negotiation – Ramundo 14) ABEM Certifications – Cheng 15) Patient Satisfaction – Cheng 16) Billing, Coding & Documenting – Cheng/Hall 17) Financial Planning – Hevia 18) Time Management – Promes 19) Balancing Work & Family – Promes & Datner 20) Physician Wellness & Burnout – Conrad /Wadman 21) Professionalism – Fredrick 22) Cases for professionalism & ethics – SAEM 23) Medical Directorship – Proctor 24) Academic Career Guide Chapter 1-8 – Nottingham 25) Academic career Guide Chapter 9-16 – Noeller