Legal Issues in the Legal Issues in the Emergency DepartmentEmergency Department

Dr. Nathan CoxfordDr. Nathan CoxfordCCFP(EM)CCFP(EM)

OutlineOutline

1.1. Litigation in the Canadian ED – Stats, Litigation in the Canadian ED – Stats, ProcessProcess

2.2. Factors that contribute to malpractice Factors that contribute to malpractice litigation – system factors, patient litigation – system factors, patient factors, physician factors.factors, physician factors.

3.3. What can you do to protect yourself?What can you do to protect yourself?

4.4. ““Defensive” MedicineDefensive” Medicine

Options for aggrieved Options for aggrieved patientspatients

• ““Patient safety response”Patient safety response”

• College complaintsCollege complaints

• LitigationLitigation

College complaints – possible College complaints – possible outcomesoutcomes

1.1. Complaint can be dismissedComplaint can be dismissed

2.2. Take a courseTake a course

3.3. Limit licenceLimit licence

The physician may have to pay the The physician may have to pay the costs associated with the costs associated with the investigation.investigation.

Medical malpractice lawsuits - Medical malpractice lawsuits - Canadian StatisticsCanadian Statistics

• 75000 CMPA members75000 CMPA members

• Last year, there were just under 900 Last year, there were just under 900 new legal actions raised – so, 1 new legal actions raised – so, 1 action for every 80 members per action for every 80 members per year.year.

Further…Further…

• 884 medico-legal actions taken884 medico-legal actions taken

• Of those, 88 went to trialOf those, 88 went to trial

• Of those, 13 went in favor of the Of those, 13 went in favor of the plaintifplaintif

Where do we fit in?Where do we fit in?

• Emergency physicians outside of Ontario and Emergency physicians outside of Ontario and Quebec (that’s us) - $2,688 yearlyQuebec (that’s us) - $2,688 yearly

• Comparison:Comparison:

• Ontario/Quebec higher fees (ER $5323, Ontario/Quebec higher fees (ER $5323, $6576)$6576)

• Obstetrics: $15,396Obstetrics: $15,396

• General Surgery: $5496General Surgery: $5496

• Neurosurgery: $11,676Neurosurgery: $11,676

• Family Medicine: $996 (excluding obs, ER)Family Medicine: $996 (excluding obs, ER)

Trend?Trend?

• DecreasingDecreasing

• 35% fewer actions than 10 years ago35% fewer actions than 10 years ago

• However, costs per claim rising – However, costs per claim rising – doubled in that period - $120 000 per doubled in that period - $120 000 per median costmedian cost

• College complaints holding steadier - College complaints holding steadier - 37 per 1000 members37 per 1000 members

Comparison with other Comparison with other countriescountries

• 0.04 claims per 1000 population in 0.04 claims per 1000 population in CanadaCanada

• USA – 0.18USA – 0.18

• UK 0.12 UK 0.12

• Australia 0.12Australia 0.12

ProcessProcess

• 70% favorable outcome for members70% favorable outcome for members

• 30% unfavorable30% unfavorable

• About 10% go to trialAbout 10% go to trial

Medico-legal actionMedico-legal action

• Statement of ClaimStatement of Claim

• Statement of DefenceStatement of Defence

• DiscoveryDiscovery

• Pretrial conferencePretrial conference

• TrialTrial

• AppealAppeal

All of this adds up to a long time… like 5-7 All of this adds up to a long time… like 5-7 years!years!

If you’re on the wrong end of a If you’re on the wrong end of a lawsuit…lawsuit…

• For the most part, the CMPA pays outFor the most part, the CMPA pays out

• The exception to this is punitive The exception to this is punitive payments – these are things that payments – these are things that tend to fall in the gross misconduct tend to fall in the gross misconduct realmrealm

Another possible Another possible exception…exception…• Out of country patients:Out of country patients:

• CMPA coverage generally applies only CMPA coverage generally applies only to actions brought about on Canadian to actions brought about on Canadian soil.soil.

• Unless… Governing Law and Unless… Governing Law and Jurisdiction Agreement – waiver patient Jurisdiction Agreement – waiver patient signs which states that if they choose signs which states that if they choose to sue you, they will do it in Canada.to sue you, they will do it in Canada.

A little more about the A little more about the CMPACMPA

• Big organizationBig organization

• Hundreds of millions in the bankHundreds of millions in the bank

• If in trouble… call earlyIf in trouble… call early

The Four ElementsThe Four Elements

• Four elements must be established or Four elements must be established or proven for any legal action based upon a proven for any legal action based upon a claim of negligence to be successful:claim of negligence to be successful:

• There must be a duty of care owed toward There must be a duty of care owed toward the patient. the patient.

• There must be a breach of the duty of care. There must be a breach of the duty of care. • The patient must have suffered harm or The patient must have suffered harm or

injury. injury. • The harm or injury must be directly related The harm or injury must be directly related

or caused by the breach of the duty of care.or caused by the breach of the duty of care.

Let’s be reasonableLet’s be reasonable

• ““In determining whether a physician In determining whether a physician has breached a duty of care toward a has breached a duty of care toward a patient, the courts consider the patient, the courts consider the standard of care and skill that might standard of care and skill that might reasonably reasonably have been applied by a have been applied by a colleague in similar circumstances. The colleague in similar circumstances. The appropriate measure is therefore the appropriate measure is therefore the level of reasonableness and not a level of reasonableness and not a standard of perfection.”standard of perfection.”

Two ways of looking at this Two ways of looking at this

•Before:Before: Stopping the legal action Stopping the legal action before it starts.before it starts.

•After: After: Making sure you’re cool if Making sure you’re cool if you get hit with the subpoena.you get hit with the subpoena.

*not mutually exclusive approaches*not mutually exclusive approaches

BeforeBefore

• This is where you want to focus.This is where you want to focus.

• Going through a legal action is not a Going through a legal action is not a pleasant thing:pleasant thing:

TimeTime

EnergyEnergy

EmbarrassmentEmbarrassment

Pertinent FactorsPertinent Factors

• System factorsSystem factors

• Patient factorsPatient factors

• *Physician factors*Physician factors

The ED PatientThe ED Patient

• Endures long waiting timeEndures long waiting time

• Meets you, the health provider, for Meets you, the health provider, for probably the first time (rapport?)probably the first time (rapport?)

• Is tired, acutely sick, in an unfamiliar Is tired, acutely sick, in an unfamiliar environmentenvironment

• Concerned and/or angry familiesConcerned and/or angry families

The System (emergency The System (emergency department)department)

• Stressed, tired medical staffStressed, tired medical staff

• All day, every day (~80% lawsuits over All day, every day (~80% lawsuits over events that occurred during off hours)events that occurred during off hours)

• Noisy environmentNoisy environment

• All sorts of distractionsAll sorts of distractions

The PhysicianThe Physician

• Just a crap shoot, right?Just a crap shoot, right?

• Not exactlyNot exactly

What we have here is a failure What we have here is a failure to communicateto communicate

The literature says…The literature says…

• Positive physician communication Positive physician communication mattersmatters

• Increases patient’s perception of Increases patient’s perception of competence and decreases competence and decreases malpractice claim intentionsmalpractice claim intentions

Remember way back whenRemember way back when

• You took the LMCC?You took the LMCC?

• Did you take it between 1993-1996?Did you take it between 1993-1996?

• Independent predictors of increased Independent predictors of increased risk of complaints to regulatory risk of complaints to regulatory bodies – poor scores on:bodies – poor scores on:

• 1. Clinical decision making1. Clinical decision making

• 2. Patient-physician communication2. Patient-physician communication

Levinson et al.Levinson et al.

• Significant differences in communication Significant differences in communication behaviors of no-claims and claims physicians behaviors of no-claims and claims physicians were identified: were identified:

• No claims physicians used more statements of No claims physicians used more statements of orientation (educating patients about what to orientation (educating patients about what to expect and the flow of a visit)expect and the flow of a visit)

• Laughed and used humor moreLaughed and used humor more• More facilitation - soliciting patients' opinions, More facilitation - soliciting patients' opinions,

checking understanding, and encouraging checking understanding, and encouraging patients to ask questions.patients to ask questions.

• A little extra time makes a difference.A little extra time makes a difference.

DisclosureDisclosure

• We all believe in it (in theory)We all believe in it (in theory)

• We don’t all do it (in practice)We don’t all do it (in practice)

• Patients want not just disclosure – Patients want not just disclosure – genuine apology!genuine apology!

• If no harm, do you still tell?If no harm, do you still tell?

Is it all about the Is it all about the Benjamins?Benjamins?

• Patients taking legal action wanted:Patients taking legal action wanted:

• Greater honestyGreater honesty

• Appreciation of the severity of the Appreciation of the severity of the trauma they had sufferedtrauma they had suffered

• Assurances that lessons had been Assurances that lessons had been learned from their experienceslearned from their experiences

• Moore et al.Moore et al.

If it does go to courtIf it does go to court

• Some evidence that the actual Some evidence that the actual amount of the settlement or award amount of the settlement or award has more to do with the severity of has more to do with the severity of the injury than with the degree of the injury than with the degree of negligence.negligence.

• Brennan – NEJM Brennan – NEJM

TipsTips(Courtesy of the CMPA)(Courtesy of the CMPA)

ConsentConsent

TRULY get informed consent:TRULY get informed consent:- Common adverse effectsCommon adverse effects- Uncommon but serious adverse effectsUncommon but serious adverse effects- Consent must be:Consent must be:- Informed. Voluntary. From a patient with Informed. Voluntary. From a patient with

capacity.capacity.- What will you be judged on? Would a What will you be judged on? Would a

reasonable person have declined the reasonable person have declined the procedure had they known the risks?procedure had they known the risks?

If you haven’t got something If you haven’t got something nice to say, don’t say anything nice to say, don’t say anything at all.at all.• Avoid subjective and disparaging Avoid subjective and disparaging

comments relating to the care comments relating to the care provided by colleagues and other provided by colleagues and other health care professionalshealth care professionals

• Why?Why?• If there’s a lawsuit, you might get If there’s a lawsuit, you might get

dragged into it toodragged into it too• You might not know the whole storyYou might not know the whole story

DocumentationDocumentation

• Three keys to good documentation:Three keys to good documentation:• AccurateAccurate• ObjectiveObjective• LegibleLegibleBe clear. Be clear. Particularly Particularly when you’re when you’re

unsure of the diagnosis. Give clear unsure of the diagnosis. Give clear discharge instructions – make sure you discharge instructions – make sure you speak with the patient and put it on speak with the patient and put it on the chart.the chart.

Problem areasProblem areas

• Most litigation centers around Most litigation centers around diagnosisdiagnosis

• Red flag - repeat customersRed flag - repeat customers

• Handover – lots of mistakes made Handover – lots of mistakes made here – person who ordered the tests here – person who ordered the tests most responsible!most responsible!

• Communication between ER doc and Communication between ER doc and the consultant - documentthe consultant - document

RadiologyRadiology

• Common area of concernCommon area of concern

• Order the right test, take the time to Order the right test, take the time to look through it, call the radiologist if look through it, call the radiologist if unsureunsure

• ?System in place to manage ?System in place to manage discordant radiologic diagnoses discordant radiologic diagnoses between ER doc and radiologist between ER doc and radiologist – – Espinosa et al.Espinosa et al.

What about us (your friendly What about us (your friendly neighbourhood resident?) neighbourhood resident?)

• Fear of litigation in relationship to Fear of litigation in relationship to teaching behaviours may lead to less teaching behaviours may lead to less autonomy, less procedures, more autonomy, less procedures, more staff notes.staff notes.

• (Reed et al.)(Reed et al.)

Responsibility of supervising Responsibility of supervising physiciansphysicians

• Is the task appropriate to delegate to an Is the task appropriate to delegate to an individual with the trainee’s level of individual with the trainee’s level of training? training?

• Does this specific trainee have the Does this specific trainee have the required knowledge, skill and experience required knowledge, skill and experience to perform the task? to perform the task?

• What degree of supervision is required? What degree of supervision is required?

• Has the patient been informed of the Has the patient been informed of the educational status of the trainee? educational status of the trainee?

Responsibility of traineesResponsibility of trainees

• Recognize the limits of their knowledge. Recognize the limits of their knowledge.

• Exercise caution and consider their Exercise caution and consider their inexperience. inexperience.

• Notify their supervisors of their knowledge, Notify their supervisors of their knowledge, skill and experience with the delegated task. skill and experience with the delegated task.

• Keep the supervisor informed of their actions. Keep the supervisor informed of their actions.

• Inform patients of their status as medical Inform patients of their status as medical trainees. trainees.

Dealing with UncertaintyDealing with Uncertainty

• The Low Probability – High Morbidity The Low Probability – High Morbidity ConditionCondition

• How far do you go? Must have an How far do you go? Must have an acceptable miss rate, but where we acceptable miss rate, but where we draw that line is variabledraw that line is variable

• Schriger et al.Schriger et al.

Defensive MedicineDefensive Medicine

• Malpractice fear - significant variability Malpractice fear - significant variability in ED decision makingin ED decision making

• Associated with increased Associated with increased hospitalization (9%) of low risk hospitalization (9%) of low risk patients and increased use of patients and increased use of diagnostic testsdiagnostic tests

Katz et al.Katz et al.

Defensive medicine cont’dDefensive medicine cont’d

• Duty to:Duty to:

• The patientThe patient

• SocietySociety

• Yourself (the responsible physician)Yourself (the responsible physician)

SummarySummary

• Chances of getting sued are actually Chances of getting sued are actually pretty low (but it’s not something you pretty low (but it’s not something you want to go through).want to go through).

• The sage advice of a trainee with limited The sage advice of a trainee with limited clinical and no litigation experience:clinical and no litigation experience:

• Be a competent doctor. Make sure your Be a competent doctor. Make sure your records show that you’re a competent MDrecords show that you’re a competent MD

• Be a decent human being – treat your Be a decent human being – treat your patients with respect, honesty, humour. patients with respect, honesty, humour.

For more informationFor more information

• CMPA road show October 28CMPA road show October 28thth here in here in Cowtown.Cowtown.

• CAEP with CMPA before the family CAEP with CMPA before the family medicine forum.medicine forum.

• Ross Beringer, ER doc, speaking.Ross Beringer, ER doc, speaking.

Let’s imagineLet’s imagine

35 year old woman with a headache. 35 year old woman with a headache. Gets these headaches on a regular Gets these headaches on a regular basis, has been to multiple doctors, basis, has been to multiple doctors, they’ve all told her that these are they’ve all told her that these are migraines. Neurological exam is migraines. Neurological exam is normal, no alarm features.normal, no alarm features.

She wants a CT scan.She wants a CT scan.She casually mentions to her nurse She casually mentions to her nurse

that her husband is a lawyer.that her husband is a lawyer.

CMPA case studiesCMPA case studies

• 58 year old obese man with back 58 year old obese man with back pain of 4 days duration, radiating to pain of 4 days duration, radiating to both lower quadrants. No physical both lower quadrants. No physical findings aside from mildly elevated findings aside from mildly elevated blood pressure. Normal AXR and blood pressure. Normal AXR and CBC.CBC.

Case study 2Case study 2

• 35 year old guy with fever, peri-35 year old guy with fever, peri-umbilical, flank pain, severe.umbilical, flank pain, severe.

• Gunk in urineGunk in urine• Ultrasound normalUltrasound normal• Sent home with Abx. for Sent home with Abx. for

pyelonephritis.pyelonephritis.• Comes back next week with a Comes back next week with a

perforated appendix. Messy, long ICU perforated appendix. Messy, long ICU stay afterward. What went wrong?stay afterward. What went wrong?

ReferencesReferences

1.1. Reducing Legal Risk by Practicing Patient Centered Medicine. Forster, et Reducing Legal Risk by Practicing Patient Centered Medicine. Forster, et al. Archives of Internal Medicine 2002al. Archives of Internal Medicine 2002

2.2. Reducing errors made by emergency physicians in interpreting Reducing errors made by emergency physicians in interpreting radiographs : a longitudinal study. Espinosa et al. BMJ 2000.radiographs : a longitudinal study. Espinosa et al. BMJ 2000.

3.3. Relation between negligent adverse events and the outcomes of medical Relation between negligent adverse events and the outcomes of medical malpractice litigation. Brennan et al. NEJM Dec 1996.malpractice litigation. Brennan et al. NEJM Dec 1996.

4.4. Monetary and nonmonetary accountability following adverse medical Monetary and nonmonetary accountability following adverse medical events: options for Canadian patients. Gray, Beilty – CMAJ Oct 2006events: options for Canadian patients. Gray, Beilty – CMAJ Oct 2006

5.5. Medical malpractice: the effect of doctor-patient relations on medical Medical malpractice: the effect of doctor-patient relations on medical patient perceptions and malpractice intentions. Moore et al. West patient perceptions and malpractice intentions. Moore et al. West Journal of Medicine – Oct 2000Journal of Medicine – Oct 2000

6.6. Epidemiology of medical error – BMJ March 2000Epidemiology of medical error – BMJ March 20007.7. Myth: Medical Malpractice lawsuits plague Canada. Canadian Health Myth: Medical Malpractice lawsuits plague Canada. Canadian Health

Services Research Foundation: MythbustersServices Research Foundation: Mythbusters8.8. Emergency Physicians’ Fear of Malpractice in Evaluating Patients with Emergency Physicians’ Fear of Malpractice in Evaluating Patients with

Possible Acute Cardiac Ischemia. Katz et al. Annals of Emergency Possible Acute Cardiac Ischemia. Katz et al. Annals of Emergency Medicine. Dec 2005Medicine. Dec 2005

More ReferencesMore References

9.Decisions, Decisions: Emergency Physician Evaluations of Low 9.Decisions, Decisions: Emergency Physician Evaluations of Low Probability – High Morbidity Conditions. Schriger et al. Annals of Probability – High Morbidity Conditions. Schriger et al. Annals of Emergency Medicine Dec 2005.Emergency Medicine Dec 2005.

10. Standards for clinical evaluation and documentation by the 10. Standards for clinical evaluation and documentation by the emergency medicine provider. Selbst. Pediatric Radiology 2008.emergency medicine provider. Selbst. Pediatric Radiology 2008.

11. Content analysis of patient complaints. Montini, Noble, Stelfox. 11. Content analysis of patient complaints. Montini, Noble, Stelfox. International Journal for Quality in Health Care 2008.International Journal for Quality in Health Care 2008.

12. CMPA Annual Report 2008.12. CMPA Annual Report 2008.13. Physician Scores on a National Clinical Skills Examination as 13. Physician Scores on a National Clinical Skills Examination as

Predictors of Complaints to Medical Regulatory Authorities. Predictors of Complaints to Medical Regulatory Authorities. Tamblyn et al. JAMA Sept 2007.Tamblyn et al. JAMA Sept 2007.

14. Disclosing medical errors to patients – status report 2007. 14. Disclosing medical errors to patients – status report 2007. Levinson. CMAJ July 2007Levinson. CMAJ July 2007

15. Do Fears of Malpractice Litigation Influence Teaching Behaviors? 15. Do Fears of Malpractice Litigation Influence Teaching Behaviors? Reed et al. Teaching and Learning in Medicine July 2008.Reed et al. Teaching and Learning in Medicine July 2008.