The Anatomy

of a Claim

2016 Loss Prevention

Seminar for Physicians

Mallory Earley

Risk Resource Advisor

ProAssurance

Toll Free: 1-844-223-9648

Direct: 205-802-4789

mearley@proassurance.com

PRESENTER

Disclosure

ProAssurance is committed to providing CME

activities that are fair, balanced and free of bias.

The planners and presenter(s)/authors(s) of this

CME activity have disclosed no conflict of

interest relative to this educational activity.

Disclaimer

Information in this presentation is neither an

official statement of position nor should it be

considered professional legal advice to

individuals or organizations.

Learning Objectives

Participation in this seminar will better enable participants to:

• Understand the litigation process for allegations of

medical malpractice by examining closed claims;

• Recognize how expert witnesses are used for and against

physicians and their effect on defense strategies; and

• Identify how effective communication and

documentation reduce healthcare liability claims.

INTRODUCTION

Medscape Malpractice Report 2015

• Medscape surveyed nearly 4000 physicians

Results:

– If/why they were sued

– How the lawsuit affected their career

– How to reduce the number of lawsuits

– Long term effects both emotional and financial

Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=1 December 9, 2015. Accessed February 26, 2016.

Have You Ever Been Named in a

Malpractice Suit?

0%

10%

20%

30%

40%

50%

Yes; one of many partiesnamed Yes; only person named

47%

12%

Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=2 December 9, 2015. Accessed February 26, 2016.

0%

20%

40%

60%

80%

Yes, I wassurprised No, I suspected

that there mightbe a lawsuit

No, I wasabsolutely

expecting it

70%

27%

3%

Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=15 December 9, 2015. Accessed February 26, 2016.

Were You Surprised to be Sued?

How Often Does Malpractice Threat

Influence Thinking or Action?

0% 20% 40%

Always, with every patient

Almost all the time

Occasionally -- mostly if I'm unsure of mydiagnosis, or I have a combative patient

Rarely; not unless something goes wrongwith a patient or there is a "trigger event"

Never

18%

36%

26%

19%

1%

14%

26%

34%

24%

2% Never namedin lawsuit

Named inlawsuit

Peckham C. Medscape malpractice report 2015: Why most doctors get sued. Medscape Web site. http://www.medscape.com/features/slideshow/public/malpractice-report-2015#page=7 December 9, 2015. Accessed February 26, 2016.

ELEMENTS &

STANDARD OF CARE

Elements of Malpractice

1. Duty • Prove physician patient relationship

2. Breach of duty • Standard of Care is how you determine this/injury

3. Proximate cause • Breach has to be related to/cause of injury, and

4. Damages • Good outcome – no damages - no claim

Alabama Standard of Care

In any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.

Ala. Code 6-5-548(a)

THE ANATOMY OF A CLAIM

The Anatomy of a Claim

• Injury/reporting

• Venue

• Pleadings

• Discovery

• Motions

• Trial

• Appeal

INJURY/REPORTING

Reporting

• When to report

– When policy requires

– Unexpected outcomes

– Deposition request or medical record request in a

professional liability case

– “You hurt me, give me money”

CASE STUDY

Case Study: Facts

• 71-YOM presented to Dr. General Surgeon on referral

from PCP – hernia in old robotic prostatectomy incision

• March 4: Dr. General Surgeon performed hernia repair,

Dr. Partner assisted; discharged March 6 w/ JP drain

• March 9: readmitted to hospital with nausea, vomiting,

and distended abdomen

• Dr. General Surgeon noted patient last reported bowel

movement on March 7

• Films are ordered; IV ½ normal saline at 125 cc/hr; CBC;

chem profile

Results & Impression

• WBC: 18.6 (4-10.8) • Creatinine 1.4 (.7-1.2) • Glomerular filtration estimate 51

(>90) • Potassium 3.1 (3.0-5.2)

Case Study: Facts

• Plan: watch patient, give fluids, let clinical

picture develop to determine if ileus or small

bowel obstruction.

• Pt had a bowel movement that evening.

• March 10: Pt still nauseated; Zofran 4 mg IV

prn

• March 11: nausea, vomiting improved, no

Zofran

Case Study: Facts

• March 11: Dr. General Surgeon developed

kidney stones

• March 12: Dr. Partner performed exam, noted

abdomen “moderately” distended, Pt eating ice

chips, no bowel movement, flatus, or emesis

• March 12: Ordered films; different radiologist

read

Results

Dr. Partner Reads Films am on 3/13

Case Study: Facts

• March 13: Dr. Partner saw Pt next afternoon

• Spot of distention confined to area of prior

hernia incision (new finding)

• Soft, squishy, thought to be seroma; assumed

JP drain clogged

• Attempted to open seroma at bedside

• Liquid stool poured out

• Pt’s family still in room

Case Study: Facts

• March 13: Emergency surgery

• Anesthesia score rated a 3E

• Just before anesthesia, Pt vomited and there was

“questionable aspiration”

• NG tube placed, approx. 3,000 cc gastric

contents returned

• Recurrent hernia repaired; small hole in small

bowel repaired

• Taken to recovery in stable condition on

ventilator due to aspiration

Case Study: Facts

• Blood pressure and urine output decreased

• Creatinine 3.4 (.7-1.2)

• Glomerular filtration estimate 19 (>90)

• Started drips, but became anuric w/ severely

labile blood pressures

• DNR - died March 14

WHAT HAPPENS NOW?

Why are we talking about this?

VENUE

Venue

• Type of court

– State vs. Federal

– Professional Liability – mostly like in state court

• Judge

• Jury pool

PLEADINGS

Complaint

• Allegations of violation of standard of care

• May involve multiple claims against multiple

defendants, and may have specific claims per

defendant

• Must be filed within applicable statute of

limitations

• Allegations use legal, rather than clinical terms

Case Study: Complaint

• Negligently cared for, treated the patient;

• Failed to diagnose and treat small bowel obstruction;

• Failed to interpret x-rays accurately or order CT of abdomen;

• Failed to order/perform insertion of an NG tube;

• Negligently opened the patient’s incision at bedside and “stabbed” the bowel

Case Study: Complaint

Answer

• Response to complaint allegations

• Each defendant must respond

• General denial vs. specific denial

• Affirmative defenses – Statute of Limitations

Case Study: Answer

Specific Denial

General Denial

Case Study: Affirmative Defense

DISCOVERY

Discovery

• Discovery Requests

– Requests for Production for Parties

– Subpoenas for Non-parties

– Requests for Admission

– Interrogatories

– Depositions

• Parties and non-parties

• Fact witnesses and expert witnesses

Requests for Production

• Limited time to respond

• Production of chart

• Requests may include inspection of devices

• Only apply to parties

Case Study: Request for Production

Subpoenas

• Apply to Non-Parties

• Requests for documents

• Regulated by HIPAA

Medical Record & Documentation

Documentation Issues in Case Study

– Documentation by Exception

– Order of events

– Location of Record Entries

– Late Entry

Case Study: Documentation Issues

• Video: Allison Adams 3 - documentation by

exception

Documentation By Exception

Case Study: Documentation

3/13 Pt with stool coming from wound

incision opened at bedside and

Bowel has herniated under incision

Needs exploration / closure - discussed with family and

patient

Case Study: Documentation Issues

• Video: Allison Adams 4 - order of events

Order of Events

Case Study: Documentation Issues

• Video Allison Adams – 5 Ins and Outs

Location of Record Entries

Case Study: Documentation

Case Study: Documentation Issues

• Video: Allison Adams 6 - late entry

Late Entry

Interrogatories

• Limited time to respond

• Written questions for parties

• Wide range of questions

• Attorney may offer objections

• Answers may be used to “impeach” testimony

Case Study: Interrogatories

Request for Admissions

• Limited time to respond

• Parties required to admit or deny the truth of

statements

• Anything not answered is deemed admitted

after time limitations expire

Case Study: Request for Admissions

Depositions

• Recorded sworn testimony prior to trial

• Witnesses may provide deposition testimony

or trial testimony or both

• Witnesses include the following:

– Parties

– Fact witnesses

– Expert witnesses

Party as a Witness

• Plaintiff and defendant will usually testify in

deposition and trial

• Any inconsistencies in depo vs. trial testimony

affect credibility

Case Study: Defendant’s Deposition

• Video: Allison Adams 7 – defendants depo

Plaintiff Attorney Cross Examination

Reptile Theory

Reptilian: primitive and survival instincts

Reptile Theory

• A process that takes place throughout litigation

• Seen most in deposition, voir dire, and opening statements

• Shifts focus from injury of Plaintiff to general public

• Scares the primitive part of juror’s brains and utilizes their fears especially regarding safety

• Gut reaction: leads to tendency to give damages based on violation of broader perception of safety

Reptile Theory

• Shifts perspective from injured Pt to defendant’s conduct

• Move jurors into “survival mode”

• Safety rule + Danger = $$$

• Safety rule must: – Protect people in a wide number of situations

– Must be in clear English

– Say what the person must do

– Easy to follow

– To not agree would be careless or stupid

Reptile Theory

• Safety rule example:

– “Safety is always a top priority, right?”

– “Any level of danger is never appropriate,

correct?”

– “Reducing risk is always a top priority, wouldn’t

you agree?”

– “Wouldn’t it have been safer if “X” had

happened?”

Defendant’s Deposition

Patient Partner

Patient

How to Combat Reptile Theory?

• Dispel the physiological basis for effectiveness

• Suggesting threat and not real danger cannot

awaken reptilian response in juror

• No longer fight or flight – process information

• Prepare and defend against these allegations

especially in deposition

Fact Witnesses

• Fact witnesses

– Patient

– Family members/care givers

– Other treating clinicians

• Subsequent treating physicians

• Nurses, AHPs, medical assistants

Case Study: Fact Witness Example

Partner

Niece’s deposition

Case Study: Fact Witness Example

Patient

Partner

her

Niece’s deposition

Niece’s deposition

Case Study: Fact Witness

• Allison Adams 8 – Clean up full

Focus Group’s Reaction

• Video of focus group: 9 – Clean up captioned

Wife’s deposition

Expert Witnesses

• Connection to standard of care

• Qualifications

• May have deposition and trial involvement

• Both sides use experts

• Expensive

• Importance of credibility

Case Study: Plaintiff’s Expert Depo

• Video of Plaintiff’s expert depo – 12 - Roberts

residency

Case Study: Plaintiff Expert

• Dr. General Surgeon discharged Pt too early

• Dr. General Surgeon did not properly resuscitate the patient

• Pt’s re-hydration was not adequate or aggressive enough to produce urine output

• Pt was hydrated with wrong fluids (should have been normal saline w/ K-Cl added, not ½ normal saline)

• Should have placed an NG tube upon readmission

• Should have ordered gastrografin study or CT of abdomen/pelvis

Case Study: Defense Expert

• Decision to place NG tube is a judgment call when finding of small-bowel obstruction versus ileus

• Decision to order CT or small-bowel follow-through also a judgment call

• Pt’s BUN, creatinine, and WBC counts creeping up were likely due to dehydration

• Draining suspected seroma at bedside appropriate

MOTIONS

Summary Judgment

• Narrative summary of undisputed material facts

• Supported by specific reference to pleadings, portions of discovery materials, and affidavits.

• No genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

• May be rendered on liability alone, leaving damages

TRIAL

Trial

• Jury selection

• Opening statements

• Plaintiff’s case

• Defendant’s case

• Closing arguments

• Deliberations/Verdict

Jury Selection

• Number of potential jurors varies

• Voir dire process

– Potential jurors may fill out questionnaire

– Attorneys may ask questions

– Strikes

– “For cause”

Opening Statements

• Preview of allegations/defenses

• Plaintiff goes first

– Burden of proof

• Defendant goes second

• Plaintiff may have option for second opening

Presentation of

Plaintiff’s/Defendant’s Case

Witness testimony

– Direct Examination

– Cross Examination

Presentation of

Plaintiff’s/Defendant’s Case

Exhibits

– Must be admitted

– May require foundation testimony

Case Study: Use of Exhibits

• Video: Allison Adams 16 – discredit animation

showing animation

Plaintiff’s Exhibit

Closing Arguments

• Summary of case

• May refer to admitted evidence

• Plaintiff goes first, and may have opportunity

after defendant’s argument

Jury Deliberation

• Jury Charge

• No time limits

• May ask questions of judge

• Deliberations are secret, but jurors may agree

to interviews after rendering verdict

Case Study: Verdict

• Video: Allison Adams 19 – verdict

Focus Group’s Reaction to Verdict

• Video: Focus group – 20 – FG Verdict

captioned 2

APPEALS

Appeals

• Not every verdict gets appealed

• Basis for appeal is legal, not clinical

• Appellate courts only consider information

from the trial court record

• No witnesses, just written briefs and attorney

arguments

Final Thoughts

• Video: Allison Adams 21 – being nice helps

Thank you for attending this

program.

Please complete your program

evaluation.