10/9/2013
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So, You Are Being Sued!
My Happy Place
My Public
Happy Speaking
Place
Are not in the same time zone
So, You Are Being Sued!(What You Did Not Learn In School)
Karen Blossom PA-C MSPAS
Urgent Care Provider
Malpractice Lawsuit Survivor
10/9/2013
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What Did You Learn In School?
• It is not a matter of if, but when
• A little bit about Medical malpractice
insurance
• That you never want to go there
A Few Fun Facts
• Average duration of a lawsuit: 3.6 years
• Average number of years in practice: 15.1
years
• Average Plaintiff award: $211,000
• Female providers have higher Plaintiff
awards than males
• Physician Assistant’s are sued less
frequently the MD’s and/ or ANP’s
Definition
• Medical malpractice is professional
negligence by act or omission by a health
care provider, in which care provided
deviates from accepted standards of
practice in the medical community and
causes injury or death to the patient.
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Medical Malpractice
• 4 criteria that must be met.
• All must be proven to the extent it is more
likely than not
1. Duty
2. Breech
3. Proximate Cause
4. Damages
Duty
• Provider must have a duty to treat the
patient
• This is established as a result of the
doctor-patient relationship
• Perform to the established standard of
care
Breach
• Care was not in compliance with the good and acceptable medical practice for your specialty
• Failure to meet the standard of care
• The courts determine standard of care through expert testimony
• Guidelines defining expert testimony vary from state to state
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Proximate Care
• A causative element which, in a natural and
continuous sequence, unbroken by an
intervening event, produces injury, without
which the injury would not have occurred
• Your care, either actions or inactions, were
a contributing factor to the ultimate injury
Damages
There are two types of damages: Economic and Non-economic
• Economic damages are monetary
• Lost wages
• Medical bills
• Non-economic damages are subjective
• Pain and suffering
• Loss of companionship
Damages
• Statistically, most providers will experience a bad outcome
• A bad outcome does not mean you committed negligence
• Only a small percentage of providers actually commit legally defined medical malpractice
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Malpractice Insurance: The Basics
• Claims Made: Coverage for claims that arise during
the policy period. If the lawsuit occurs after
employment is terminated you are not covered -
thus the need to “but a tail”
• Tail Coverage: A type of supplemental coverage
available when your claims-made policy is
canceled or non-renewed
• Prior Acts: A type of supplemental coverage that
covers any claims that may arise when your
claims-made policy is cancelled or non-renewed
Malpractice Insurance: The Basics
Occurrence: Covers any lawsuit that may
arise during, and in the future, if the
occurrence was within the policy period
Hammer Clause
• Stipulates that if you choose to not settle
against the advise of your carrier and
attorney, you are liable for the monetary
difference between what the case would
have settled for and the ultimate damage
award, if greater than the proposed
settlement
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Physician Assistant Malpractice Statics
2003-2012
• Nationwide - 1295 PA's were reported as having had payments made by malpractice insurance providers
• 2003-2012: Arizona - 57
(Data from the National Provider Data Bank)
Most Common Non-Physician
Allegations
• Lack of adequate supervision
• Untimely referral to a consultant
• Failure to diagnosis properly
• Inadequate examination
• Negligent misrepresentation
You Have Been Served
• Being “served” may come out of the blue
• Sometimes, there is a harbinger
• Other times, there is a known bad outcome
• Statue of limitations for being served:
• 2 years and 75 days
• Exception pediatric patients
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Reaction To Being Served
Another Possible Reaction
Review Your Malpractice Policy
• What are the coverage limits?
• Will you be assigned a lawyer?
• Can you refuse to settle?
• Is there a “hammer clause”
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• Do not talk to any one (seriously?) except
your lawyer, spouse, supervising Physician
and the therapist you are going to have to
start seeing really soon
• Do not alter or destroy any records
• And, do not
Here Come The Lawyers
Addressing The Complaint
• Review of all available patient records with
you attorney
• Discussions on the merits of the case
• Attorney starts filing motions with the court
• A motion is a legal procedure that brings a
contested matter before the court for a
decision
Discovery
• All parties have an opportunity to
investigate the merits of the other side's
legal and factual position
• Precise factual statement about the facts of
a litigation which can be used at trial as
affirmative evidence
• This includes depositions (oral questions
and verbal responses taken under oath)
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Discovery For The Defendant
• Quiet time
• Not much happening
• Might almost forget it is happening
• EXCEPT FOR THE MAIL!!!!!!
Deposition
• Attorneys for both sides are present and
participate in examination and cross-
examination
• Listen to your lawyer
• Remain calm
• Read it carefully
• Correct any mistakes
• You have the right to be present for any
and/ or all other depositions
Expert Witnesses
• You will be sent copies of all witness testimony for your review and signature
• The plaintiff's expert witnesses will say you did not provide the expected standard of care
• Your expert witnesses will affirm that you did provide the expected standard of care
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More on Expert Witnesses
• Qualifications vary state to state
• Some require active practice in the same specialty
• Others states simply require a license to practice
• Arizona requires they be licensed in the same profession as the defendant and maintain board certification in the same specialty
Offers To Settle
• Offers to settle may be made by the
defendant at any time during the process
• This will most likely be left in the hands of
your attorney and insurance underwriter
• A case may be settled any time up to the
point at which the jury reaches a verdict
A Settlement is
Always a Loss for
the Provider
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Should You Settle?
• This may be entirely in the hands of your
malpractice insurance underwriter
• The case may be indefensible
• The award at trial may be more that your
policy covers (putting personal assets at risk)
• The case would be over (but not the fall out)
• 80% of the time juries find for the provider
• Over 90% of medical malpractice lawsuits
settle out of court, and for good reasons:
• Neither side wants to go to court
• It is expensive
• It is time consuming
Should You Settle?
Alternatives To Trial For Resolution
• Negotiation
• Mediation
• Arbitration
• Pretrial Screening Panel
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Negotiation
• Most frequently used
• Two or more parties confer in good faith to settle
• Settling parties have more control than other methods
• More successful if there is emotional distance
• Dispassionate perspective is not common in malpractice cases
Mediation
• Similar to negotiation but, uses a neutral
third party
• Less costly that litigation
• Parties have more control
• No judge to impose the decision
Arbitration
• Parties agree to submit the dispute to an
arbitrator or arbitration panel
• Each side presents evidence and a
determination is made
• Faster, less costly and more private than a
jury trial
• Can be binding but, is sometime open to
appeal
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Pretrial Screening Panel
• Developed specifically for medical
malpractice cases
• Many states have panels that review all
medical malpractice cases for merit before
a suit is filed
• The process is non-binding and the Plaintiff
can still litigate
Trial
So It Is Over!
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The Fallout
National Practitioner Data Base (NPDB)
• A computerized information system that
contains records of malpractice claims,
privileges actions, and other disciplinary
actions. It was created to ensure that
incompetent health care professionals do
not move from one state to another
NPDB• A federal data bank created to serve as a repository of
information about health care providers in the United
States
• The Medicare and Medicaid Patient and Program
Protection Act of 1987 led to the creation of the NPDB, a
data tracking system designed to protect program
beneficiaries from unfit health care practitioners. The
NPDB was implemented September 1990, and requires
reporting of adverse licensure, hospital privilege and
professional society actions against physicians and dentists
related to quality of care. In addition, the NPDB tracks
malpractice payments made for all health care practitioners
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What Does That Mean?
• Typically when a provider applies for malpractice insurance, hospital privileges and insurance credentialing, some further explanation will be required to explain the “YES” answer to the “Have you ever” question
• It is best to divulge that you have been reported to the NPDB before you are asked
Those “Have You Ever” Questions
• Have you ever been named in a
malpractice lawsuit?
• Have you be convicted of a felony?
• Are you an ax murderer?
No, We Are Not Finished Yet
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Medical Board Investigation
• The report to the NPDB subsequently provokes
an investigation by the Arizona State Board of
Medical Examiners (more mail box trauma)
• This may take several months at which time you
will be asked to interview or it will be dismissed
• If you are asked to interview there may be an
“adverse action”, which is again reported to the
NPDB
Adverse Action
• An action taken against a practitioner's clinical privileges or medical staff membership in a health care entity
-OR-
• A licensure disciplinary action, which reduces, restricts, suspends, revokes or denies clinical privileges or membership in a health care entity
Coping
• Remember, you will survive
• Establish a support system (that therapist
mentioned earlier)
• Maintain a positive attitude
• Do not self medicate
• Be physically active
• Keep breathing
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Summary
?Questions?
Bibliography
• Edvard Munch (Norwegian, 1863-1944). The Scream. Pastel on board, 1895. © 2012 The Munch Museum/The Munch-Ellingsen Group/Artists Rights Society (ARS), New York.
• Brenner, I. R. (2010) All about Experts, in How to Survive a Medical Malpractice Lawsuit: The Physician's Road Map for Success, John Wiley & Sons, Ltd, Chichester, West Sussex, UK. doi: 10.1002/9781119967323
• http://www.npdb-hipdb.hrsa.gov/ National Practitioner Data Bank assessed 9/10/2013
• http://www.angelfire.com/tx/yuccaflat/atomic-photos.html accessed 9/16/2013
• http://www.istockphoto.com/stock-illustration-16095023-bluebird-crashing-laptop.php?st=52b050b
• http://www.istockphoto.com/stock-illustration-25388355-walking-emoticon.php?st=f405ecf
• http://www.gbmedlaw.com/Stages_of_a_Case.html
• http://www.lawfirms.com/resources/medical-malpractice/medical-negligence-lawsuits/length-process.htm
• http://www.practicelink.com/magazine/featured/surviving-the-malpractice-storm-2/
• http://www.physicianlitigationstress.org/
• Medical Malpractice: How To Prevent and Survive a Suit edited by Richard J. Nasca md, Lee A. Whitehurst, md, jd, Louise B. Andrew, md, jd, facep, ...www.pohly.com/books/medicalmalpracticehow.html
• http://jucm.com/magazine/issues/2013/0913/