MALPRACTICE. Society for Academic Emergency Medicine Law u Common, Statutory, Administrative u...

MALPRACTICE

Society for Academic Emergency Medicine

Law

Common, Statutory, Administrative Federal & State Civil & Criminal


Law

Common - Judiciary Statutory - Legislature Administrative - Executive


Law

Federal State - Themes with variations


Law

Civil

*Monetary damages

Criminal

*Monetary fines

*Prison


LAWYERS VS DOCTORS

Litigation -- a painful, tiresome experience Injuries are usually severe

*52% anatomic deformity or death *20% emotional impairment

> 70% against ER docs, surgeons, OBGYNs 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,” 1999Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999Hyatt, et al, “A study of medical injury and med mal: An overview,” NEJM, 1989Hyatt, et al, “A study of medical injury and med mal: An overview,” NEJM, 1989


Malpractice

Malpractice occurs when a physician fails to act as a reasonable physician would have acted under the circumstances


Malpractice

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


Malpractice Elements

Duty *derives from the establishment of physician

patient relationship

*duty to provide the standard of care



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



Causation = "proximate cause"(= legal cause) including partial causation



Damages *medical costs and lost wages

*pain and suffering


Why do patients sue?

“Original injury is not enough.” Prime concern: perceived lack of caring Lack of communication, dishonesty, pt

ignored/neurotic Over 1/3 would have opted out of litigation

with explanation, apology

Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999Vincent, Young, Philips, “Why do people sue doctors?” Lancet, 1994Vincent, Young, Philips, “Why do people sue doctors?” Lancet, 1994


ABCD of avoiding malpractice suit

Attitude—defuse patient angers, resentments, fears and anxieties

Balance—understand the patient’s problem complemented by professional caring

Communication with patient and family Documentation


Malpractice Defenses

Good Samaritan Statute of Limitations Local vs National Standards of Care Alternative Treatment-- doctor’s action were entirely

appropriate because the doctor choose between two acceptable courses of recognized treatment.

Clinical innovation--this defense is more likely to succeed in cases where the conventional treatments have been tried and failed

Contributory fault -- patient’s own actions were a contributing cause to the resulting injury


Medical Malpractice Insurance

Name of the Company Name of the insured Limits of Liability

$1, 000,000 per patient$3, 000,000 per aggregate total

Types*Claims made vs Occurrence*Insurance Gaps: Tail vs Nose


Claims-Made

The most common type of professionalThe most common type of professionalliability coverage available, it providesliability coverage available, it providesprotection for claims that occur protection for claims that occur andand are arereported while the policy is in effectreported while the policy is in effect(coverage period)(coverage period)

Claims reported after the policy is discontinueare not covered unless Tail coverage (Reporting Endorsement) or Prior Acts coverage (“Nose”) is purchased


Insurance Gap

When the coverage period of a claims-made policy When the coverage period of a claims-made policy has expired without renewal, claims that have not has expired without renewal, claims that have not yet been made yet been made andand reported to the carrier are not reported to the carrier are not covered, and a physician is uncovered unless…covered, and a physician is uncovered unless…

An extended reporting endorsement (tail coverage) An extended reporting endorsement (tail coverage) is purchased from the former carrieris purchased from the former carrier

Prior acts (nose coverage) is purchased from Prior acts (nose coverage) is purchased from a new carrier a new carrier


Purchase insurance gap when *Switching policy

*Changing claims-made insurance companies

*Retiring

Insurance Gap (cont)


Occurrence Coverage

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 .

There is no need to purchase a tail coverage or prior acts coverage.


Things to know about your malpractice insurance carrier

Are they licensed? Are they financially stable? Are they experienced? Do they have a proven record of physician customer

satisfaction? How do they defend claims?


Litigation Stress

Talk to Colleagues Get professional advice Participate actively in your defense Prepare for either outcome Learn from the experience Take care of yourself


Litigation Stress (cont)

Share your feeling/pains with family & friends for they are blessings for your heart


Questions

Author Credit – Malpractice:

Arthur Derse MD JD & David Cheng MD


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

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