1. © 3M 2009. All Rights Reserved. The Legal Ramifications of Errors in Patient Care 3M™ Attest™ Sterile U Web Meeting November 19, 2009

2. 2 © 3M 2009. All Rights Reserved. Welcome  Topic: What’s In Your Closet? The Legal Ramifications of Errors in Patient Care  Speaker: Robert R. Gorbold, Kavanagh Grumley and Gorbold LLC  Facilitator: Tammy Torbert, 3M Sterilization Assurance  Housekeeping – Questions – Mute feature (*7 = unmute; *6 = mute) – “Chat” feature – Technical difficulties – CE Credits – Post session follow-up

3. 3 © 3M 2009. All Rights Reserved. So why are we being sued and why are the lawyers telling us we could lose a lot of money? Nobody told us we were doing anything wrong

4. 4 © 3M 2009. All Rights Reserved. Quality of patient care – the real issue

5. 5 © 3M 2009. All Rights Reserved. Statistics  99,000 people die per year as a result of hospital acquired infections  As of October 2009, medicare and other government programs will not pay for treatment of many HAI because they are considered preventable  If the government won’t pay, soon no one else will either  It makes for easy recovery for Plaintiffs of $$$

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9. 9 Quality of patient care – the real issue  Hospital / clinic policies and procedures  Regulators as a legislative function / response  Negligence / tort liability through the courts

10. 10 © 3M 2009. All Rights Reserved. To Go To Trail or Not Go To Trial… That is the Question  Risk / Benefit analysis  Settlement  Experts are the key

11. 11 © 3M 2009. All Rights Reserved. Basic Civil Procedure Where is the Court House and How Do I Get There?  State law controls  Jury vs. bench trial  Litigation process Summons Complaint Discovery Experts Trial

12. 12 © 3M 2009. All Rights Reserved. Anatomy of a Trial – It’s Not TV  Entire trial is educational process presented in persuasive manner  Plaintiff has burden of proof and goes first  Jury selection – Unpicking the jury  Opening statement – Presenting the whole puzzle picture

13. 13 © 3M 2009. All Rights Reserved. Anatomy of a Trial – It’s Not TV  Presentation of facts at trial  Experts  Closing argument – Painting in the color  Court instructions  Jury deliberations

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15. 15 © 3M 2009. All Rights Reserved. Trial is a two-sided jig saw puzzle  2 different pictures from the same pieces  Pleadings identify the puzzle  Discovery finds and identifies the pieces  Experts give opinions about what the pieces mean and how they should be put together  Lawyers argue why their client’s picture is the right and reasonable one  Jury and judge decide which picture is there and what is more reasonable result  Case is almost never about who is the liar  This is not a criminal case

16. 16 © 3M 2009. All Rights Reserved. Plaintiff’s case – what their puzzle has to include  Burden of proof  Negligence – standard of care  Proximate cause – foreseeable cause  Injury – damages

17. 17 © 3M 2009. All Rights Reserved. Defendant’s Case… Needs to be more than just mud on the plaintiff’s case  It is not enough to simply show that Plaintiff’s case is not good  Must affirmatively show why the defense case is more reasonable

18. 18 © 3M 2009. All Rights Reserved. Two Different Defendants: Individuals and Institutions  Individual Defendant  Institutional Defendant  Respondeat superior liability  Institutional negligence  Experts provide evidence against individual and institutional Defendants and in support of them for the other side

19. 19 © 3M 2009. All Rights Reserved. Standard of care – the measuring stick Legal definition: Standard of care is conduct which a reasonably careful health care professional / hospital / clinic would do or conduct which a reasonably careful health care professional /hospital / clinic would not do under the same or similar circumstances in the same or similar localities as shown by the evidence at trial

20. 20 © 3M 2009. All Rights Reserved. Standard of care – the measuring stick  Same standard applies to hospital or clinic  Is both a quantitative and qualitative standard  Has many facets and sources  Is not black and white or clearly defined since it depends on each case and fact scenario

21. 21 © 3M 2009. All Rights Reserved. Policies and Procedures  Evidence of standard of care  Essential to comply with regulatory and administrative requirements  Implementation – must select appropriate standards and recommendations  Enforcement – must have proper chain of command involvement and oversight

22. 22 © 3M 2009. All Rights Reserved. Standards and Recommendations  Regulatory compliance  Used in expert opinions

23. 23 © 3M 2009. All Rights Reserved. Standard of Care…How the Jury Gets It  Key to trial  Jury bases decision on standard of care to define what facts are important and how they go together in reasonable manner  Presented through expert witnesses  Review all the materials  Present in context of their education, training and experience  Rely on the specific facts of case as developed in discovery  Use testimony to present facts in logical sequence of priority  Demonstrative exhibits

24. 24 © 3M 2009. All Rights Reserved. Experts, Not the Lawyers, Make or Break the Case  Evidence of the standard of care is provided by opinion testimony of experts  Several experts at trial  Liability experts  Causation experts  Damages experts

25. 25 © 3M 2009. All Rights Reserved. Discovery… Finding and Painting the Pieces of the Puzzle  This is the pieces to the puzzle before they get to court  This is where most of the work gets done  Identifies facts and evidence  Limits testimony to specifics given  This is process which determines whether case will be tried or settled  Types of discovery  Interrogatories  Production of documents  Depositions  Subpoenas  Depositions are focus and most work

26. 26 © 3M 2009. All Rights Reserved. Documentation…If it is not charted, it did not happen”  Evidence of treatment  Memory of facts 3 - 7 years later  Computer generated charting  Forms with only check boxes  Verification of testing through combination of chart / records and policies / procedures

27. 27 © 3M 2009. All Rights Reserved. Spoliation of Evidence A claim that can make you liable for someone else’s malpractice

28. 28 © 3M 2009. All Rights Reserved. What is “SPOLIATION” anyway Definition: “Failure to preserve evidence in a situation when there is duty to preserve materials or objects that might be used as evidence, the loss of which foreseably results in the loss of a Plaintiff’s ability to recover damages in an underlying claim.”

29. 29 © 3M 2009. All Rights Reserved. What the Plaintiff has to Prove  Existence of legal duty to preserve evidence  Breach of that duty  Proximate cause  Damages

30. 30 © 3M 2009. All Rights Reserved. “Duty”  Statutes / Regulation  Adverse events  To preserve or not to preserve – How long?

31. 31 © 3M 2009. All Rights Reserved. Proximate Cause  Cause in fact  Legal cause  In spoliation case:  Foreseeable loss of evidence (records or test results) was a cause of loss of ability to prosecute underlying malpractice case

32. 32 © 3M 2009. All Rights Reserved. Damages = $$$  Paying for the other guy’s mistake

33. 33 © 3M 2009. All Rights Reserved. Bad News/Good News  New cause of action  Being used more often  Difficult for Plaintiff to win  Will get easier for Plaintiffs

34. 34 © 3M 2009. All Rights Reserved. Conclusion IT’S NOT ALL BAD NEWS Statistically, we win almost 70% of cases tried