med mal presentation 7 10-18

7/10/2018 – Chehardy Sherman
Williams – Healthcare Section 1
Louisiana Medical MalpracticeLouisiana Medical Malpractice
Risk Management & Best PracticesRisk Management & Best Practices
Conrad Meyer Esq., MHA FACHEConrad Meyer Esq., MHA FACHE
Sarah J. L. Christakis, Esq., J.D., L.L.M.Sarah J. L. Christakis, Esq., J.D., L.L.M.
Chehardy Sherman, LLPChehardy Sherman, LLP
sjlc@Chehardy.comsjlc@Chehardy.com
cm@chehardy.comcm@chehardy.com
(504) 833-5600(504) 833-5600

La. R.S. 40:1231.1(A)La. R.S. 40:1231.1(A)
 (13) “Malpractice” means any unintentional tort or any breach
of contract based on health care or professional services
rendered, or which should have been rendered, by a health
care provider, to a patient, including failure to render services
timely and the handling of a patient, including loading and
unloading of a patient, and also includes all legal responsibility of
a health care provider arising from acts or omissions during the
procurement of blood or blood components, in the training or
supervision of health care providers, or from defects in blood,
tissue, transplants, drugs, and medicines, or from defects in or
failures of prosthetic devices implanted in or used on or in the
person of a patient.

Patient’s Compensation FundPatient’s Compensation Fund
 Request for MRP must be sent to the Louisiana
Division of Administration within one year from the
date of the alleged malpractice.
 9:5628 – 3 year preemptive period. - One year from
the date of the alleged act, omission, or neglect, or
within one year from the date of discovery of the
alleged act, omission, or neglect; however, even as to
claims filed within one year from the date of such
discovery, in all events such claims shall be filed at the
latest within a period of three years from the date of
the alleged act, omission, or neglect.
 $100 per named defendant
 PCF will send notice to claimant of receipt of claim
within 15 days of receipt.
 Claimant has 45 days from mailing date of notice of
receipt from PCF to pay filing fee.

Prescriptive Periods 1231.1 et.seqPrescriptive Periods 1231.1 et.seq
 The filing of the request for a review of a claim shall suspend the time within which
suit must be instituted, until ninety days following notification, by certified mail to
the claimant or his attorney of the issuance of the opinion by the medical review panel.
(Plus remainder of 1 year date of discovery) – 9:5628.
 An attorney chairman (AC) for the medical review panel shall be appointed within
one year from the date the request for review of the claim was received by the DOA.
 If the board has not received notice of the appointment of an attorney chairman
within nine months from the date the request for review of the claim was filed,
then the board shall send notice to the parties by certified or registered mail that
the claim will be dismissed in ninety days unless an attorney chairman is appointed
within one year from the date the request for review of the claim was filed.
 Life of Panel – 1 year from date of AC appointment

Medical Review PanelMedical Review Panel
 Panel consists of:
 Attorney Chairman (AC) – All parties must agree (and are obligated to pick) or subject to
strike list with LASC
 Plaintiff nominee – sometime by plaintiff counsel or by the AC
 Can be of any specialty if hospital is named – if no hospital can only be specialty of named primary doctors
 Defense nominee – usually by agreement of all defense counsel – focus on specialty target
 Third party nominee – usually by the AC
 Sometimes (rare) have 4 panel members per AC for special circumstances
 The medical review panel is charged with rendering an expert opinion as to
whether the evidence:
 Supports or does not support the conclusion that the defendant or defendants acted or failed
to act within the appropriate standards of care.
 Or – material issue of fact
 Panel – hearing
 Can be asked questions but not deposition – AC Controls
 Sometime have court reporter present – usually by plaintiff counsel

 Preparation for Panel submission:
 Medical Records – Certified copy – ASAP!
 We identify key players from hospital
 Nursing staff
 Lab Techs
 Rad Techs
 RM – Confirm employment and contact information from key players
 Cell phone
 Email
 Address
 Assist Defense Counsel with meetings re: key players
 We request relevant policies/procedures – if alleged by plaintiff in MRP request – what are they and
where?
 Handoff policy
 Monitoring policy
 Supervising policy
 Statements? – always put Atty/client privilege – if obtained in the course of
litigation
7/10/2018 – Chehardy Sherman Williams –
Healthcare Section 6

 Once the panel has been formed, the law states that the panel will expire
within 180 days if a decision has not been rendered by the medical
review panel or if the life of the medical review panel has not been
extended by a court order.
 By agreement of all parties, the use of the medical review panel may be
waived.

Post MRP SuitPost MRP Suit
 The patient then has 90 days + remainder of 1 year date of discovery to
institute a lawsuit in State district court or the case will be barred by the
statute of limitations. - Examples
 Date of Alleged Malpractice (AOM)– 1/1/10 – date of discovery (DOD) 1/1/12
 MRP Request must be received by DOA before 1/1/13 (1 year from DOD)
 Date for MRP request – 12/1/12 – 30 days before 1 year date of discovery
 Date of MRP opinion received by Plaintiff – 1/1/15
 Post panel Suit must be filed within – 90 days (by statute) + 30 days (remainder of 1 year) = 120 days from 1/1/15
 Date of AOM - 1/1/10 – DOD – 6/1/12
 MRP Request must be received by DOA before 1/1/13 (6 months from DOD – See 3 year preemption)
 Date for MRP request – 12/1/12 – 30 days before 6 month – 3 year peremption period ends
 Date of MRP opinion received by Plaintiff – 1/1/15
 Post panel Suit must be filed within – 90 days (by statute) + 30 days (remainder of 1 year) = 120 days from 1/1/15
 Good Prescription Analysis tool

Post Trial or SettlementPost Trial or Settlement
 Another complex issue that often faces medical malpractice litigants is the
involvement of the PCF, which may become a party to the litigation once
there has been a judgment of liability or a settlement. Under the MMA,
a plaintiff’s damages in excess of $100,000 may be recovered from the
PCF, but any such damages may not exceed $500,000.
 Once a healthcare provider has admitted liability up to the statutory
maximum of $100,000, the PCF cannot contest liability when there is a
binding settlement for $100,000 by the healthcare provider, either before or
after trial. At that point, the only remaining issue is the damages, if any, owed
by the PCF. However, the court must approve the settlement, and the
PCF must be given notice and an opportunity to object to the
settlement.

Three Components to Malpractice SuitsThree Components to Malpractice Suits
• CommunicationCommunication
• OutcomeOutcome
• DocumentationDocumentation
 Bad Communication + Bad OutcomeBad Communication + Bad Outcome
= Malpractice Suit= Malpractice Suit
 Good Communication + Good or Bad OutcomeGood Communication + Good or Bad Outcome
= Usually no suit= Usually no suit

CommunicationCommunication
– exchange of information –– exchange of information –
 Story (“History”)Story (“History”)
 FamilyFamily
 NonverbalNonverbal
 VerbalVerbal
 AtmosphereAtmosphere

DocumentationDocumentation
 Hx addresses chief complaintHx addresses chief complaint
 Include pertinent negativesInclude pertinent negatives
 High risk Dx excludedHigh risk Dx excluded
 Repeat ExamRepeat Exam
 Time and notes about consults conversationTime and notes about consults conversation
 Make sure patient understands the surgery and allMake sure patient understands the surgery and all
known potential complications!known potential complications!
 Repeat abnormal vital signsRepeat abnormal vital signs
 Discharge InstructionsDischarge Instructions

Discharge InstructionsDischarge Instructions
 Short and clear, written in standard EnglishShort and clear, written in standard English
 Give them clear instructions- follow-up, painGive them clear instructions- follow-up, pain
management, potential bleeding/constipation, etc.management, potential bleeding/constipation, etc.
 Close the ring - FinaleClose the ring - Finale

Top 10 reasons for malpractice claimsTop 10 reasons for malpractice claims
1.1. Errors in diagnosisErrors in diagnosis
2.2. No medical misadventure - The doctor was named in a lawsuit, but thereNo medical misadventure - The doctor was named in a lawsuit, but there
was no allegation of inappropriate medical conduct on his partwas no allegation of inappropriate medical conduct on his part
3.3. Improper performanceImproper performance
4.4. Failure to supervise or monitor caseFailure to supervise or monitor case
5.5. Medication errorsMedication errors
6.6. Not performed - The physician allegedly failed to perform an indicatedNot performed - The physician allegedly failed to perform an indicated
treatment or procedure, and that failure was the main reason for thetreatment or procedure, and that failure was the main reason for the
malpractice action.malpractice action.
7.7. Failure/delay in referral or consultationFailure/delay in referral or consultation
8.8. Performed when not indicated or contraindicatedPerformed when not indicated or contraindicated
9.9. Failure to recognize a complication of treatmentFailure to recognize a complication of treatment
10.10. Delay in performanceDelay in performance

Most Frequent Source of ClaimsMost Frequent Source of Claims
 Wound ComplicationsWound Complications
 Extremity fx and complicationsExtremity fx and complications
 Myocardial infarction (Myocardial infarction (1/31/3 of all $ awarded against ER-of all $ awarded against ER-
MD)MD)
 AppendicitisAppendicitis
 Head TraumaHead Trauma
 Aortic aneurysm/dissectionAortic aneurysm/dissection
 Medication ErrorsMedication Errors

RED FLAGSRED FLAGS
 Time of careTime of care
 Change of shiftChange of shift
 Unscheduled return visitUnscheduled return visit
 Language problemsLanguage problems
 Uncooperative or anxious ptUncooperative or anxious pt
 Compromised pt (diabetes, alcoholics,Compromised pt (diabetes, alcoholics,
anticoagulants)anticoagulants)

How do we prevent lawsuitsHow do we prevent lawsuits
 Tracking and follow-up: Don't neglect eitherTracking and follow-up: Don't neglect either
 Establish Tracking or Follow-up proceduresEstablish Tracking or Follow-up procedures
 Labs and X-raysLabs and X-rays
 The physician reviews reports before they go into the chart.The physician reviews reports before they go into the chart.
 Patients are told to come in for follow-up visits.Patients are told to come in for follow-up visits.
 Return pt. phone calls!Return pt. phone calls!
 Juries appreciate and understand that doctors haveJuries appreciate and understand that doctors have
noncompliant patients. What juries struggle to understand—noncompliant patients. What juries struggle to understand—
and to forgive—is a perceived lack of effort on theand to forgive—is a perceived lack of effort on the
physician's part to manage information on a timely basis andphysician's part to manage information on a timely basis and
follow up with the patient.follow up with the patient. A practice that doesn't have aA practice that doesn't have a
suitable system can get itself into an indefensible position!suitable system can get itself into an indefensible position!

How do we prevent lawsuits cont.How do we prevent lawsuits cont.
 Putting it in writing: The importance of documentationPutting it in writing: The importance of documentation
 Keep careful, complete records.Keep careful, complete records.
 The problem might involve the record's content or legibility, orThe problem might involve the record's content or legibility, or
whether the practice keeps track of things like patients' medicationwhether the practice keeps track of things like patients' medication
history and allergieshistory and allergies
 The medical record provide the most striking evidence that there wasThe medical record provide the most striking evidence that there was
no medical negligence!no medical negligence!
 As lawyers, we need to use the medical record to show that theAs lawyers, we need to use the medical record to show that the
doctor we're defending got the appropriate history, ordered thedoctor we're defending got the appropriate history, ordered the
appropriate tests, and told the patient that he or she needed to beappropriate tests, and told the patient that he or she needed to be
seen againseen again
 The record should also indicate that the doctor instructed the patientThe record should also indicate that the doctor instructed the patient
about any changes in symptoms that might suggest a more seriousabout any changes in symptoms that might suggest a more serious
problemproblem
 No right or wrong way to document –No right or wrong way to document – but be consistent!but be consistent!
 Errors in documentation – simply cross out and re-write – Don’tErrors in documentation – simply cross out and re-write – Don’t
White out!White out!

 Keeping in touch: Communicate with patientsKeeping in touch: Communicate with patients
 In many malpractice claims, either the doctor failed to tell the patientIn many malpractice claims, either the doctor failed to tell the patient
something, the doctor's instructions were misunderstood, or thesomething, the doctor's instructions were misunderstood, or the
doctor failed to pass along important information to a referraldoctor failed to pass along important information to a referral
physician.physician.
 In an adverse event, first the patient experiences surprise, thenIn an adverse event, first the patient experiences surprise, then
disappointment, and finally anger.disappointment, and finally anger.
 Most physicians who have a disappointed patient, a treatment failure,Most physicians who have a disappointed patient, a treatment failure,
or a complication naturally tend to avoid the patient. That's a bigor a complication naturally tend to avoid the patient. That's a big
mistake.mistake.
 Perceived arrogance or disinterest on the doctor's part is a key reasonPerceived arrogance or disinterest on the doctor's part is a key reason
a disappointed patient turns angry and visits a lawyera disappointed patient turns angry and visits a lawyer
 Many times, patients just want empathyMany times, patients just want empathy, and to know that what, and to know that what
happened to them won't happen to someone elsehappened to them won't happen to someone else

 Medication errors: What patients don't know can hurt themMedication errors: What patients don't know can hurt them
 Doctors should tell clinical staff that as part of the intake process, they need toDoctors should tell clinical staff that as part of the intake process, they need to
ask what medications patients are taking, including over-the-counter and herbalask what medications patients are taking, including over-the-counter and herbal
remedies, and what medications they've had problems with.remedies, and what medications they've had problems with.
 Recommend asking patients to bring all their medications to the office so the staffRecommend asking patients to bring all their medications to the office so the staff
can actually see what they're taking.can actually see what they're taking.
 With the huge increase in the number of drugs available, adverse drug reactionsWith the huge increase in the number of drugs available, adverse drug reactions
and interactions have become a major malpractice snare.and interactions have become a major malpractice snare.
 Physicians should meet with pharmaceutical representatives so they have a clearPhysicians should meet with pharmaceutical representatives so they have a clear
idea how to use new medications.idea how to use new medications.
 Prescriptions should be written clearly and avoid abbreviations that can bePrescriptions should be written clearly and avoid abbreviations that can be
misunderstood!misunderstood!
 Refilling prescriptions in perpetuity without seeing the patient invites troubleRefilling prescriptions in perpetuity without seeing the patient invites trouble

Risk Management and Med/MalRisk Management and Med/Mal
 Quality of CareQuality of Care
 EMTALAEMTALA
 Claims DevelopmentClaims Development
 Physicians at Teaching HospitalsPhysicians at Teaching Hospitals

Quality of CareQuality of Care
 Unnecessary or substandard items/services mayUnnecessary or substandard items/services may
be excluded from participation in federal healthbe excluded from participation in federal health
care programs- must be “medical necessity”care programs- must be “medical necessity”
 Assessing quality of care is also imperative forAssessing quality of care is also imperative for
patient safetypatient safety..
 Prevent falls by assessing ground conditions; ensurePrevent falls by assessing ground conditions; ensure
bedrails and toilet grab bars are secure.bedrails and toilet grab bars are secure.
 All practitioners and medical staff must beAll practitioners and medical staff must be
qualified and competent!qualified and competent!

EMTALAEMTALA
 Aka the “anti-dumping” statute.Aka the “anti-dumping” statute.
 Potential exclusion from Medicare and potentialPotential exclusion from Medicare and potential
med/mal issues!med/mal issues!
 Failure to provide on-call specialist.Failure to provide on-call specialist.
 Failure to provide adequate screening.Failure to provide adequate screening.
 Failure to arrange appropriate patient transfer.Failure to arrange appropriate patient transfer.

Claims DevelopmentClaims Development
 Preparation and submission of claims orPreparation and submission of claims or
requests for payment from federal healthcarerequests for payment from federal healthcare
programs- a major risk area!programs- a major risk area!
 All claims must be managed properly to preventAll claims must be managed properly to prevent
improper/inaccurate billing and coding.improper/inaccurate billing and coding.
 This will help potential med/mal issues relatingThis will help potential med/mal issues relating
to admissions (failure to diagnose) and dischargeto admissions (failure to diagnose) and discharge
(track and follow-up on post-operative or(track and follow-up on post-operative or
missed appointments, etc.).missed appointments, etc.).

Physicians at Teaching HospitalsPhysicians at Teaching Hospitals
 CMS regulations require all claimsCMS regulations require all claims
for physicians services provided byfor physicians services provided by
residents/interns accurately reflectresidents/interns accurately reflect
the level of service provided to thethe level of service provided to the
patient.patient.
 Make sure all claims for thesesMake sure all claims for theses
services were properly supervisedservices were properly supervised
by an attending physician!by an attending physician!
 Med/Mal issues often arise whereMed/Mal issues often arise where
residents and attending physiciansresidents and attending physicians
were jointly treating the patient.were jointly treating the patient.
 Make sure residents are gettingMake sure residents are getting
adequate sleep.adequate sleep.

Questions or Comments Please contact:Questions or Comments Please contact:
Conrad Meyer Esq., MHA FACHEConrad Meyer Esq., MHA FACHE
Sarah J. L. Christakis, Esq., J.D., L.L.MSarah J. L. Christakis, Esq., J.D., L.L.M
Chehardy Sherman, LLPChehardy Sherman, LLP
cm@chehardy.comcm@chehardy.com
(504) 830-4141(504) 830-4141

med mal presentation 7 10-18

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