Litigation & Medicine... Why We Win or Lose a Case Presented by Catherine Walberg, JD Vice President & General Counsel KaMMCO

Claims by the Numbers

Claim Frequency Claims filed by year per 100 insureds Year # Insureds3,6553,6803,7413,7103,7363,6613,1832,626 Claims filed

Claim Frequency Claims Inventory (Open Claims) Year Year End Total (last 8 years) Year th Qtr3 rd Qtr2 nd Qtr1 st Qtr4 th Qtr3 rd Qtr2 nd Qtr1 st Qtr End of Qtr Total (last 8 quarters)

$121, $127, $141, $106, $109, $106, $100, $129, $117, $103, Average Paid Indemnity on Claims Closed by Year (only includes claims which had an indemnity payment) $141,684.52$106,594.83$109,167.99$106,594.83$100,845.79$129,805.70$117,463.30$103,631.67$114,651.32$142,021.35

$121, $127, $141, $106, $109, $106, $100, $129, $117, $103, Average Paid Expenses on Claims Closed by Year $19,697.09$16,971.20$17,565.10$10,408.89$20, ,329.72$18,313.67$17, ,414.20$25,793.84

$121, $127, $141, $106, $109, $106, $100, $129, $117, $103, Percent of Claims Closed with Indemnity Payment %25.89%25.25%13.77%11.11%16.71%15.65%22.13%18.93%23.58% 31/12829/11241/16323/16721/18961/36557/36481/36660/31754/232

$121, $127, $141, $106, $109, $106, $100, $129, $117, $103, Average Number of Months to Close by Year

KaMMCO Plan Trial Results (By Year) KaMMCOPlanTotal WinsLossesMistrialsWin %WinsLossesMistrialsWin %WinsLossesMistrialsWin % % n/a0100% %31075%122086% % % %11050%82080% %11050%81089% %000n/a72078% %000n/a125071% %000n/a83073% %000n/a62075% %000n/a52071% %100100%91090% %31075%52071% %31075%187072% %000n/a143182% %400100%161094% %42067%215181% %300100%171094% %300100%244186% TOTALS %288078% %

Case Studies

Case #1 – “Remembering Your Rationale”  Facts Obese patient. Surgery over a decade ago. Severe back pain. Informed consent discussion with patient occurred; delivered pamphlets.

Case #1 – “Remembering Your Rationale”  Facts Plaintiff opted for decompression of L-3 and L-4. During surgery, defendant physician had to manipulate the nerve roots. Defendant physician anticipated the plaintiff would have some nerve damage as a result of the surgery.

Case #1 – “Remembering Your Rationale”  Facts Post-surgery, the plaintiff suffered right leg numbness and weakness from neurologist. Defendant physician obtained a consult. Consulting physician did thorough history and exam which was well documented. He agreed physical therapy was appropriate.

Case #1 – “Remembering Your Rationale”  Facts One month later, two hematomas were discovered and evacuated. Consistency of the hematomas indicated they had been there for an extended period of time. Plaintiff continued to suffer from right leg weakness, and eventually leg paralysis until unrelated death two years later.

Case #1 – “Remembering Your Rationale” Initial Assessment  Strengths Good informed consent before surgery. Good operative note done timely.  Weaknesses Plaintiff had significant postoperative deficits. Plaintiff’s experts were critical of the fact that no MRI was done as part of the postoperative evaluation.

Case #1 – “Remembering Your Rationale”  Outcome – Defense verdict.

Case #1 – “Remembering Your Rationale” Why We Won/Why We Lost  Defendant Credibility Awoke with compromised movement, suggesting nerve damage. Not a sudden dramatic loss of function that would have indicated hematoma. Drains had been installed, yet no blood/fluid accumulation. Reasonable to believe surgically induced root trauma—a known complication.

Case #1 – “Remembering Your Rationale” Why We Won/Why We Lost (Cont.)  Documentation Timely; detailed: “Patient’s past medical history included a barely recalled surgical procedure on the lumbar spine 30 years ago where a cyst was excised. This had extensive consequences regarding her present problems....

Case #1 – “Remembering Your Rationale” Why We Won/Why We Lost (Cont.)  Documentation “L-4 lamina was virtually impossible to separate from the dura. The dura and periosteum seemed to be an absolute confluent structure with no evidence of ligamentous tissue consisting of ligamentum flavum within the canal. Neither was there any epidural fat. It appeared as if the patient had a previous laminectomy for this excision and resulting bone growth has led to reconnection of the lamina and complete dense adhesions of the dura directly to the bone....

Case #1 – “Remembering Your Rationale” Why We Won/Why We Lost (Cont.)  Documentation “Nerve root inspection yielded normal nerve roots, but a great deal of nerve root manipulation was necessary in order to mobilize the dura and produce a closure of the dura.”

Case #1 – “Remembering Your Rationale” Why We Won/Why We Lost  Informed Consent Extended discussion/pamphlets.  Timely Handling of Complication Consult; post-operative problems promptly and thoroughly investigated and documented.

Case #2 – “He Said, She Said”  Facts Plaintiff admitted to hospital with early labor. Delivery of fetal head occurred spontaneously without episiotomy. When difficulty was encountered with delivery of the shoulders, shoulder dystocia was diagnosed. The delivery was complicated and protracted. Fetal Apgar scores were Infant diagnosed with Erb’s palsy.

Case #2 – “He Said, She Said”  Facts According to the defendant physician’s delivery note:  “[w]e had to give traction, and eventually the anterior shoulder emerged. Then, we delivered the posterior shoulder. Once the posterior shoulder was delivered, the anterior shoulder was delivered; and the baby’s umbilical cord was clamped and cut.”

Case #2 – “He Said, She Said” Initial Assessment  Strengths Poor compliance by patient.  Weaknesses Poor documentation. Family members’ testimony.

Case #2 – “He Said, She Said”  Settled.

Case #2 – “He Said, She Said” Why We Won/Why We Lost  Doctor had no recollection of event.  Documentation. No record of:  Direction to patient to reposition legs.  McRoberts maneuver;  Woods maneuver; or,  Application of suprapubic pressure. Defense experts could not determine techniques used to assist delivery.

Case #2 – “He Said, She Said” Why We Won/Why We Lost  Dr. claimed he did all these techniques, but no record:  His nurse said he never uses suprapubic pressure.  Dr. denied use of forceps.

Case #2 – “He Said, She Said” Why We Won/Why We Lost  Plaintiff’s Position: Family said:  He used forceps.  Lots of force.  Pulled baby’s head “many times” and last pull moved mom on table.

Case #2 – “He Said, She Said” Why We Won/Why We Lost  Plaintiff’s Position: Family said:  Never told mom to move legs.  Never pressed on abdomen.  Dr. looked “perplexed.”

Case #2 – “He Said, She Said” Why We Won/Why We Lost  Plaintiff’s Position: Plaintiff’s expert:  Injury consistent with forceps use. Subsequent treater:  Baby’s nerves “completely torn in two—the worst injury he’d ever seen to brachial plexus.”

Case #2 – “He Said, She Said” What Helps Us Defend You:  Timely recognition of complication and attentiveness to reasonable resolution of complication.  Frequent, express communication with other physicians and staff.

Case #2 – “He Said, She Said” What Helps Us Defend You:  Documentation explaining what you did and why, including options considered— especially in high-risk cases or situations.  Having an informed consent discussion with the patient and documenting the same.

Case #2 – “He Said, She Said” What Helps Us Defend You:  Avoiding critical or careless remarks or documentation about your peers or staff.  Sticking together during litigation (joint defense).

Case #2 – “He Said, She Said” What Helps Us Defend You:  Remembering throughout litigation that you are a good doctor, ARNP, or physician assistant who is well trained and who makes reasonable decisions in the face of incomplete information and rushed timelines.

Questions & Answers