Medical Malpractice: A Medical Malpractice: A Physician’s PerspectivePhysician’s Perspective

Kevin Biese, MDKevin Biese, MDMarch 5March 5thth, 2007, 2007

The Effect of CAPSTONEThe Effect of CAPSTONE

2 Requirements to be Good 2 Requirements to be Good Intern Intern

Try HardTry Hard Be HonestBe Honest

Simple PhraseSimple Phrase““I Don’t Know”I Don’t Know”

SoSoUse Your ResourcesUse Your Resources

Bad NewsBad News You Will get Sued You Will get Sued

1 case per 10 physician years1 case per 10 physician years Some of you during residencySome of you during residency

Over 20% of cases from academic Over 20% of cases from academic centers involve residentscenters involve residents

It happened to meIt happened to me But I still have a jobBut I still have a job

You Are a DoctorYou Are a Doctor Unfortunately, (usually) the law does not Unfortunately, (usually) the law does not

differentiate resident from attendingdifferentiate resident from attending So you are responsible So you are responsible However, you have lots of helpHowever, you have lots of help

AttendingsAttendings ResidentResident NursesNurses BooksBooks UptoDate ……..UptoDate ……..

Communication is KeyCommunication is Key

Does the System Work: Does the System Work: Medical Malpractice GoalsMedical Malpractice Goals

Deter bad careDeter bad care Compensate the victimsCompensate the victims

The Data: Harvard Medical The Data: Harvard Medical Practice StudyPractice Study

Review of 31,429 random patient charts Review of 31,429 random patient charts from 52 NY hospitals from 1984from 52 NY hospitals from 1984

Looked for adverse events (injury caused Looked for adverse events (injury caused by medical management)by medical management) First screen by NP for specific criteria (hospital First screen by NP for specific criteria (hospital

trauma, drug reactions, readmission)trauma, drug reactions, readmission) Next 2 physicians determined if adverse eventNext 2 physicians determined if adverse event Finally physicians determined if negligence had Finally physicians determined if negligence had

caused the adverse eventcaused the adverse event

Harvard Medical Practice Harvard Medical Practice StudyStudy

31,429 insample

7817 positivescreen

1278 adverseevents

306 withnegligence

Harvard Medical Practice Harvard Medical Practice StudyStudy

3.7% hospitalized patients with 3.7% hospitalized patients with adverse eventsadverse events

1% hospitalized patients adverse 1% hospitalized patients adverse events secondary to negligenceevents secondary to negligence

Extrapolation -In NY State in 1984Extrapolation -In NY State in 1984 27,129 Injuries secondary to negligence27,129 Injuries secondary to negligence 6895 Deaths secondary to negligence6895 Deaths secondary to negligence

Part II - Harvard Medical Part II - Harvard Medical Practice Study Practice Study

Examined types of errors and their Examined types of errors and their association with negligenceassociation with negligence Operative (53% of total / 17% negligent)Operative (53% of total / 17% negligent) Drug-related (16% of total / 17% negligent)Drug-related (16% of total / 17% negligent) Diagnostic (7% of total/ 75% negligent) Diagnostic (7% of total/ 75% negligent)

70% of errors in ED associated with 70% of errors in ED associated with negligence (many diagnostic decisions)negligence (many diagnostic decisions)

Part III - Harvard Medical Part III - Harvard Medical Practice StudyPractice Study

Association of adverse events to Association of adverse events to malpractice claimsmalpractice claims

47 cases from 47 cases from original 31,429 patients original 31,429 patients

Part III - Harvard Medical Part III - Harvard Medical Practice StudyPractice Study

GroupGroup Number Number in Samplein Sample

Number Number of Claimsof Claims

No No adverse adverse eventevent

28,63528,635 2626

Unlikely Unlikely Adverse EventAdverse Event 335335 33

Adverse Adverse event; no event; no

negligencenegligence853853 1010

Adverse Adverse event; yes event; yes negligencenegligence

280280 88

Part III - Harvard Medical Part III - Harvard Medical Practice Study: ConclusionsPractice Study: Conclusions

ManyMany more negligent injuries than claims more negligent injuries than claims 98% of negligent injuries do not result in claim98% of negligent injuries do not result in claim Ratio negligence to claims = 7.6 to 1Ratio negligence to claims = 7.6 to 1

Poor correlation between negligent injuries Poor correlation between negligent injuries and claimsand claims

Malpractice GoalsMalpractice Goals Deter bad careDeter bad care Compensate victims Compensate victims

Part IV - Harvard Medical Part IV - Harvard Medical Practice StudyPractice Study

10 yr follow up of malpractice cases10 yr follow up of malpractice cases No adverse events: 10/24 plaintiffNo adverse events: 10/24 plaintiff Adverse event, no negligence: 6/13 plaintiffAdverse event, no negligence: 6/13 plaintiff Adverse event, negligence: 5/9 plaintiffAdverse event, negligence: 5/9 plaintiff Only independent predictor of payment Only independent predictor of payment

was permanent disabilitywas permanent disability No association between adverse event No association between adverse event

(p=0.79) or negligence (p=0.32) and (p=0.79) or negligence (p=0.32) and paymentpayment

ConclusionConclusion We are playing football on the freeway – We are playing football on the freeway –

we get pretty good at it, but you are we get pretty good at it, but you are gonna get hitgonna get hit

It is often not about you – we usually get It is often not about you – we usually get sued for bad outcomes not bad practicesued for bad outcomes not bad practice

But, there are But, there are a lota lot of errors of errors And harm done …And harm done …

What to doWhat to do CommunicateCommunicate Say when you do not knowSay when you do not know Contact hospital legal as situations Contact hospital legal as situations

arisearise Be kindBe kind

What Not to DoWhat Not to Do DO NOTDO NOT

Pass judgment in the chartPass judgment in the chart You will become a plaintiff witnessYou will become a plaintiff witness

Advise a patient to sueAdvise a patient to sue Carelessly EmailCarelessly Email Abandon your patient when something Abandon your patient when something

goes wronggoes wrong Modify the chartModify the chart

Final ThoughtsFinal Thoughts Most of us will get suedMost of us will get sued We get sued for bad outcomes rather We get sued for bad outcomes rather

than bad practicethan bad practice Be honest and willing to Be honest and willing to

acknowledge what you do not knowacknowledge what you do not know Ask for helpAsk for help Be Kind Be Kind