That Will Never Happen To Me F09

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That Will Never Happen To Me F09

  1. 1. Presents That Will Never Happen To Me...Understanding Medical Professional Liability Litigation Through Real Claims & Case Studies A loss prevention program for Physicians and Clinic Managers, Hospital Administrators and Risk Managers, and Other Health Care Professionals Joint Sponsor The University of Kansas School of Medicine-Wichita Division of Postgraduate Education
  2. 2. KaMMCO Resource Guide www.KaMMCO.com - KaMMCO’s new website provides members with access to details about upcoming events, loss prevention guides, practice management information, applications, and much more. KnowledgeSource PRO® - A web-based product to help physicians and staff identify missed revenue opportunities and ensure coding compliance by providing critical regulatory coding and reimbursement guidance. This is offered to members at no charge. Quality Data Check (QDC) - A comprehensive quality and risk management software system for hospitals. This product is offered to members at no charge. Site Visits - Member Service Coordinators are available to discuss questions, concerns, or suggestions as to how KaMMCO may better serve members. Chart Audits - Certified Professional Coders are available to perform coding and documentation assessments. A baseline chart review will assist with preventing, detecting, and correcting coding errors. Practice Management - KaMMCO offers many useful services for physician practices such as operational assessments, risk reviews, comprehensive practice assessments, human resource assessments, and assistance with new practice development. Loss Prevention Guides - KaMMCO provides Loss Prevention Guides for both physicians and hospitals to help members improve patient care and reduce professional liability exposure. These guides include sample forms, information about medical records, assistance with office procedures, and much more. Hospital Preferred Insurance Program - KaMMCO, the Kansas Hospital Association (KHA), and Kansas Health Service Corporation (KHSC) have developed a preferred insurance program for Kansas hospitals. The new preferred insurance program will allow KaMMCO, KHA, and KHSC to work together to provide liability insurance products and risk management services to all KHA and KaMMCO member hospitals. C.A.R.E. Program - A support program for physicians involved in litigation. The program offers a notebook with information about the legal process, educational letters sent during key moments of the litigation experience, access to emotional support, and a venue for physicians to discuss the emotional aspects of being involved in litigation. Fall Loss Prevention Programs - Education programs for physicians and hospitals. Programs are designed to provide important and relevant information to the medical community. Those eligible receive a premium credit and continuing medical education (CME) for attendance. Education Requests - Upon request, KaMMCO staff is available to provide on-site education to members regarding a variety of topics important to physicians, hospitals, medical offices, and staff.
  3. 3. About Our SpeakersCristy Anderson, JD, Claims Manager, Wichita Office, KaMMCOCristy received her undergraduate degree from Wichita State University and her law degree fromWashburn University School of Law in Topeka. Cristy practiced in the areas of medicalprofessional liability defense and workers’ compensation defense among other areas at Hite,Fanning and Honeyman, L.L.P. until assuming her current position with KaMMCO.Cristy is a member of the Kansas Association of Defense Counsel, the Defense Research Institute(DRI), and participates on the Medical-Legal and Civil Practice Committees for the Wichita BarAssociation.David O’Neal, JD, Vice President-Claims & Corporate Counsel, KaMMCODave received his undergraduate degree from the University of Kansas and his law degree fromSouth Texas College of Law in Houston, Texas. Dave practiced in the areas of medicalprofessional liability defense and insurance defense in Houston prior to returning to Kansas in2002. He continued to defend physicians and other medical professionals with the law firm ofGoodell, Stratton, Edmonds and Palmer, L.L.P. in Topeka until assuming his current position withKaMMCO.Dave is the Vice Chair of the Claims Section for the Physician Insurers Association of America(PIAA), and works closely with the Kansas Medical Society (KMS) in monitoring the tortlitigation environment in Kansas. He is a member of the Defense Research Institute (DRI), theKansas Association of Defense Counsel, the Kansas Bar Association, and the Topeka BarAssociation. Speaker and Planning Committee DisclosureNeither speakers nor planning committee members have any financial relationships to disclose. Commercial Support DisclosureThere are no proprietary entities producing health care goods or services (consumed by or used onpatients) supporting this activity. Continuing Medical Education CreditThis activity has been planned and implemented in accordance with the Essential Areas andpolicies of the Accreditation Council for Continuing Medical Education through the jointsponsorship of the University of Kansas School of Medicine-Wichita and KaMMCO. TheUniversity of Kansas School of Medicine-Wichita is accredited by the ACCME to providecontinuing medical education for physicians.The University of Kansas School of Medicine-Wichita designates this educational activity for amaximum of 1.25 AMA PRA Category 1 Credits. Physicians should only claim creditcommensurate with the extent of their participation in the activity. Continuing Nursing Education CreditKaMMCO is approved as a long-term provider of continuing nursing education by the KansasState Board of Nursing. This educational program is approved for 1.50 contact hours applicablefor RN, LPN, or LMHT relicensure. Kansas State Board of Nursing provider number is: LT0232-1238.
  4. 4. Program Purpose and ObjectivesThis handout has been developed to assist physicians and other health care professionalsunderstand why some medical professional liability cases are won while others are lost when allagree that the medicine looked good. This program will explore and analyze many of the complexfacets that go into the successful (and sometimes unsuccessful) defense of medical professionalliability claims. Strengths and weaknesses that impact the outcomes of claims in Kansas will beidentified and loss prevention and claims tips will be offered enabling health care professionals tofocus on patient care.The recommendations in this handout are not intended to establish a standard of care, nor are theya substitute for legal advice. The recommendations should be tailored to meet the needs of eachparticular health care setting. Any implementation of these recommendations should be reviewedby appropriate staff and, if necessary, legal counsel. The fact that a health care professional variesfrom these guidelines does not establish that the health care professional failed to meet therequired standard of care. There may be legitimate reasons to choose another course of action.However, consideration of the information in this handout may reduce the risk of facing a lawsuitand the stress that accompanies even a successful defense in court.Following participation in this presentation, the learner will be prepared to:1. Describe loss prevention and claims strategies used in medical professional liability litigation thereby attaining the ability to adopt new strategies for reducing claims.2. Investigate potential allegations made in the delivery of health care that contribute to medical professional liability claims, and apply that information to prevent future claims.3. Identify elements in the delivery of health care that contribute to medical professional liability claims, and modify them to improve the delivery of health care and avoid similar situations.Contents of this handout are produced for the benefit of KaMMCO members and are protected by2009 copyright. No one other than KaMMCO members may reproduce the contents of thishandout without written permission from KaMMCO. Send all communication to KaMMCO,623 S.W. 10th Avenue, Topeka, Kansas 66612.
  5. 5. Table of ContentsIntroduction .................................................................................................... 1 1. Effective Systems ................................................................................. 1 Internal Policies & Procedures ...............................................................................1 Case Study #1 ...........................................................................................................2 Analysis.....................................................................................................................2 Outcome....................................................................................................................2 Points to Remember................................................................................................3 Internal Communications........................................................................................3 Case Study #2 ...........................................................................................................3 Analysis.....................................................................................................................4 Outcome....................................................................................................................4 Points to Remember................................................................................................4 2. Patient Communication ...................................................................... 4 Coordinated Patient Care ........................................................................................5 Case Study #3 ...........................................................................................................5 Analysis.....................................................................................................................5 Outcome....................................................................................................................5 Points to Remember................................................................................................6 3. Patient Care Issues .............................................................................. 6 Informed Consent ....................................................................................................6 Case Study #4 ...........................................................................................................6 Analysis.....................................................................................................................7 Outcome....................................................................................................................7 Points to Remember................................................................................................8 Failure to Diagnose/Treat .......................................................................................8 Case Study #5 ...........................................................................................................8 Analysis.....................................................................................................................9 Outcome....................................................................................................................9 Points to Remember................................................................................................9 4. Litigation Issues ................................................................................... 9 Finger Pointing .......................................................................................................10 Case Study #6 ..........................................................................................................10 Analysis....................................................................................................................10 Outcome...................................................................................................................11 Points to Remember...............................................................................................11
  6. 6. Willingness to Defend Good Care ..........................................................................11 Case Study #7 ..........................................................................................................11 Analysis....................................................................................................................12 Outcome...................................................................................................................13 Points to Remember...............................................................................................14Conclusion ..........................................................................................................................14
  7. 7. That Will Never Happen to Me... Understanding Medical Professional Liability Litigation Through Real Claims & Case StudiesIntroductionEvery medical professional liability claim or lawsuit is based on tort law. One author states that,“‘Tort’ is an elusive concept. The word is not used in common speech. Although it describes one ofthe major pigeon-holes of the law, the concept has defied a number of attempts to formulate a usefuldefinition. The dilemma is that any definition that is sufficiently comprehensive to encompass alltorts is so general as to be almost meaningless.” 1 A medical negligence tort is a civil matter asopposed to a criminal matter. The medical professional is the defendant and the patient is theplaintiff. A common element of all torts, medical negligence included, is that “someone hassustained a loss or harm as the result of some act or failure to act by another,” 2 for which the courtwill provide a remedy in the form of damages awarded (money). “Proof of malpractice requires twoevidentiary steps. It requires evidence as to the recognized standards of the medical community inthe particular kind of case, and a showing that the health care provider in question negligentlydeparted from the standard in treating the patient. Three elements must be proven through experttestimony in order for the plaintiff to prevail in a professional liability case: (1) that a duty wasowed by the health care provider to the patient; (2) that the duty was breached; and (3) that a causalconnection existed between the breached duty and the injury sustained by the patient.” 3 Theplaintiff must prove the test, more probably than not (greater than 50%) in order to establishnegligence. The following is a practical application of these legal concepts to actual case studies.1. Effective Systems Offices and hospitals must be run with efficiency and organization to be successful. Policies and procedures are established, either in writing or understood, to handle information and equipment in an effective manner. Health care professionals, whether in a hospital setting, an emergency department, a clinic, a nursing home, or a sole practitioner, are no different. In fact, it is imperative that health care professionals establish an effective and organized system for gathering and disseminating patient information and providing patient care. There are many components to consider in establishing such a system. Some are based on business goals of providing high quality service to patients; some are required by law in regulations such as the Heath Insurance Portability and Accountability Act (HIPAA) or in state statutes; and others are done in an effort to prevent future professional liability claims. Such “loss prevention” precautions can be analyzed through case studies – learning from the mistakes and the good work of others. Internal Policies and Procedures: Not only is it important to have procedures in place for handling toxic and harmful materials, but office and hospital staff, from physicians to receptionists, must follow established procedures diligently.1 Kionka, Edward J., Torts in a Nutshell, §1.1 (4th ed. 2005)2 Id.3 Wozniak v. Lipoff, 242 Kan. 583, 587, 750 P.2d 971 (1988); Pattern Instructions Kansas §123.01 (4th Civil 2008) 1
  8. 8. Case Study #1: A 6-year-old female was seen by an advanced registered nursepractitioner (ARNP) in a clinic for strep tonsillitis. When the child was sent to the lab for astrep test, she placed her hand in what she thought was a bucket of toys (it was actually asharps container which had been placed on the floor next to her chair) and sustained severalpuncture wounds. Earlier in the day, blood had been drawn from an HIV patient. Theincident was reported to the supervising physician who approached the mother andexplained that there had been an HIV positive patient in the lab earlier that day. Afterconsulting her supervising physician, the ARNP consulted a pediatric infectious diseasephysician by phone to determine post-exposure prophylaxis (PEP). The consultingphysician’s secretary called back with a hotline number for the National HIV Aids Consult.The physician on the hotline stated that in unknown needle stick situations, with possibleexposure to HIV, a PEP regimen consisting of Lopinavir-Ritonavir (Kaletra), 3TC (Epivir),AZT (Retrovir), and a complete blood count (CBC) and liver function tests are suggested.The hotline physician inquired as to the status of the known HIV patient whose blood hadbeen drawn earlier in the day. After that information was obtained, the hotline physician wasagain consulted and agreed with the initial PEP regimen. The child followed up in the officewith diarrhea attributed to the HIV medications. Medications were adjusted after thesupervising physician consulted an infectious disease physician and more lab tests wereordered. Six days later, the patient was seen in the emergency room and in the office forgastrointestinal (GI) upset and nausea, again attributed to the medication. The parentsswitched care to another physician in the area.Analysis: Our experts opined that the situation was handled as well as could be expected.All felt the treatment received by the child after the possible exposure was satisfactory. Oneexpert stated that even if the child had been stuck with an HIV positive needle, the risk oftransmission would be .3%. If prophylaxis were added after exposure to an HIV positiveneedle, then the risk would be less than .1% for transmission. Also, all said that if the childtested negative at six months after possible exposure, there was no reason to worry aboutconverting in later years. The hotline physician stated that treatment for 28 days wasoptional, not absolutely necessary, and the medications were not benign in themselves,sometimes causing side effects. The long-term effect of the medications was not known;however, the stomach ache and nausea experienced by the child were not considered seriouscomplications.Keeping in mind the three elements of the test to prove negligence, the system failure ofleaving the sharps container on the floor was clearly below the standard of care, especiallyconsidering minor patients may be in the room. Further, it can probably be assumed thatthere was either a written or understood policy, which was violated by an employee, againstleaving a sharps container within the reach of children. However, the patient was notseverely injured; the patient did not develop HIV; nausea was not a serious complication;and the situation was handled appropriately according to experts. Other factors must beconsidered. This was probably not a good case to present to a jury. It would be a struggle forthe jury to see past a little girl sticking her hand into a container full of potentiallycontaminated HIV needles.Outcome: In addition to the medications, the patient underwent HIV testing initially, onemonth post-exposure, and four months post exposure. All tests were negative, and other labswere okay. The decision was made to offer a small settlement. 2
  9. 9. Points to Remember: Make sure there are policies and procedures in place at your clinic or hospital that protect your patients, your staff, and you.Periodically review your policies and procedures, and perform an office assessment toensure that those policies and procedures are being followed. [For a sample of KaMMCO’sLoss Prevention Assessment, go to www.KaMMCO.com, click on the Practice Managementtab, then click on Risk Management; Operational (Systems) Risk; Loss PreventionAssessment.]Internal Communication: It is especially important in a physician’s office, clinic, orhospital that the right hand knows what the left hand is doing. Many clinics and hospitals,small and large, have regular turnover in staff. Developing a system of communication andoffice policies, and educating staff and healthcare professionals about them can potentiallyreduce the risk of litigation. Creating an atmosphere of open communication withguidelines, keeping a neat work area, a consistent filing system, and establishing a workflow and hierarchy for the dissemination of information are methods for preventing claimsrelated to poor internal communication. A regular review of the systems currently in placemay be in order.Case Study #2: A patient called a clinic with complaints of chest and back pain. Hespoke to a receptionist and told her he was coming to the clinic. Before she could transferthe call to the physician assistant (PA), the patient hung up. The patient came into the clinicsoon thereafter, checked in, and waited in the waiting room to be seen. When his name wascalled (approximately 12-16 minutes later), he was unresponsive. Resuscitative measureswere undertaken and he was transferred to the hospital. He was ultimately diagnosed ashaving a myocardial infarction (MI) with anoxic encephalopathy. The PA testified that if thepatient called in complaining of chest pains, sweating, and thought he was having a heartattack, the PA would have expected the receptionist to tell the patient to stay home and theclinic would call 911. The PA indicated that if the patient came to the clinic, he would haveexpected the receptionist to immediately notify him of the patient’s arrival so he couldassess the patient and have the emergency medical technicians (EMTs) come to the clinic ifnecessary.This case took place in a small town clinic where the ambulance service was approximatelytwo blocks away. A defibrillator was part of the ambulance service, so the clinic did notkeep a defibrillator on site. The PA’s understanding was consistent with the officemanager’s understanding of office policy. The phone receptionist had been working at theclinic approximately two weeks and testified she was aware of the same policy. At the timeof the incident, the phone receptionist recognized the patient was in distress when he calledbut she did not call 911 since the patient hung up before she could have the nurse or PA talkto him. She also did not get the correct name on the initial call. She talked to the nursebefore the patient arrived, who speculated (correctly) as to which patient might have calledwith the complaints. The phone receptionist was told to notify the nurse or PA immediatelyupon the patient’s arrival. However, a different receptionist was working at the check-indesk. According to the testimony of the check-in receptionist, the phone receptionist did not 3
  10. 10. advise her to let the nurse or PA know when the patient arrived, nor was she made aware of the phone call. In fact, the check-in receptionist spoke to the patient twice--once to check him in and once to get additional information. During the two conversations, she did not notice signs of distress. The phone receptionist was not aware of the patient’s arrival and, in fact, did not know how long he had been waiting when he was found in his unresponsive state. Obviously, she did not notify the nurse or PA of the patient’s arrival. The check-in receptionist indicated from where she and the patient were seated, she could not see him; but, she did hear, after some time, what sounded liked snoring. She checked on him and surmised he did not look “right” (his false teeth were falling out) so she asked the office manager to check on him. The office manager then contacted the nurse. The clinic records indicate the patient was sitting in the waiting room approximately 15 minutes. Analysis: This case is a good example of how important it is for all staff to be well informed and educated on handling emergencies. The receptionist was the patient’s connection to the physician or PA. Because of the breakdown in communication, the PA never had a chance to help the patient. The clinic had a protocol in place for handling emergent situations, but employees did not follow it. There was a breakdown in communication between the receptionists which proved to be a determining factor in the care provided to the patient. There were mitigating factors present which probably helped in reducing the amount for which the case settled at mediation. Some comparative fault can be placed on the patient for not calling 911 or otherwise communicating his belief at check-in that he was having a heart attack. There was also an argument that, had they known immediately that the patient was there, they would have been able to only act a couple of minutes faster, which may not have affected the outcome of the case. Outcome: The patient is currently living with his sister and brother-in-law. He suffers from memory loss and is easily confused and does not remember any details of the incident. He can no longer work but he can feed, bathe, and clothe himself. His heart muscle suffered very little damage. The plaintiff demanded non-economic damages plus reimbursement for his medical bills and some lodging. Plaintiff did not claim any wage loss, future loss of earnings, future medical expenses, or other items of economic damage. The claim was settled for a reasonable amount. Points to Remember:  Effective communication requires a team approach. Routinely train staff on how to communicate important patient information to the appropriate staff member.  During emergent situations, remain in control and gather all essential information such as the patient’s name and the symptoms they are experiencing.2. Patient Communication Lawyers are known to complain that practicing law would be great but for clients. Health care professionals may feel the same way about patients, at times. Of course, all health care professionals know that if clients and patients did not need them, there would no longer be a need for legal and health care professionals. Helping people is typically the motivation 4
  11. 11. behind such a career choice. Though the patient is one of many to the health careprofessional, the patient views the health care professional as the one holding the answers totheir urgent concerns. Patients assume communication from the health care professional willbe effective and efficient.Coordinated Patient Care: Adequate medical care often includes referrals tospecialists. Although the “captain of the ship” theory is no longer the standard in manystates, multiple health care professionals must communicate with each other to providecomprehensive care to the patient. Without a captain, the entire crew is responsible formaking sure important information gets to the patient. Often, there is a primary carephysician (PCP) making the referrals who coordinates the patient’s care with specialists.Each health care professional is focusing on their piece of the puzzle; however, if the team isnot communicating with one another, tests can get lost or forgotten and importantinformation is never passed on to the patient.Case Study #3: A patient’s PCP referred her to a surgeon for a hysterectomy. Thesurgeon did a routine pre-op chest x-ray and an abnormality (lung lesion) was found. Theradiology report stated “bi-apical soft tissue mass with central cavitations of the right upperlobe is seen and may represent granulomas.” The radiologist recommended that outsidefilms be compared to determine and evaluate the chronicity of the lung apical mass. If noprior films were available, a follow-up chest CT was indicated. Both the PCP and thesurgeon received a copy of the radiology report, but neither physician discussed it with thepatient or followed up on the abnormal film. The following day, the surgeon, with theassistance of the PCP, performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy on the patient. She was discharged from the hospital six days later. Thesurgeon provided postoperative care for two months. The PCP and ARNP also saw thispatient one month and three months after the surgery. Eighteen months after the surgery, thepatient was diagnosed with Stage 4 non-small cell carcinoma of both lungs. She died fourmonths after being diagnosed.Analysis: The delay in diagnosis of the patient’s non-small cell carcinoma for 20 monthsdecreased her chance of survival. It is probable that if diagnosed when the cancer was StageI, the patient’s five-year survival rate would have been between 60-70%. This result clearlyexhibits a deviation that caused or contributed to an injury (the causation element of theanalysis). The experts predicted that the delay caused substantially more damage than thepatient would have suffered had the test results been conveyed sooner. The PCP stated shedid not order the films so she did not read the report (she did initial the report). The surgeonfelt that although he ordered the report, it is the PCP’s responsibility to follow up on it. ThePCP said she generally has so much paperwork, she could not possibly be expected to readeverything so she never reads reports for tests ordered by other providers.Outcome: The case settled at mediation for a sizeable amount, with the surgeonapportioned two-thirds of the amount and the PCP apportioned the other one-third. 5
  12. 12. Points to Remember:  When physician-to-physician communication lacks critical data, the one who suffers the most is the patient.  Develop a structured communication protocol that enables you to discuss the situation, background, assessment, and any recommendations based on test results.  The failure to record and follow up on test results could lead to increased risk exposure.  Never sign off on anything without having carefully read it.3. Patient Care Issues A physician once summed up appropriate patient care: “Patients do not expect their physicians to be perfect – but when the chips are down, they expect them to be available, concerned, present, and honest. Hint: In the patient’s eyes, if you are not present, you don’t care.” Medical professionals are caregivers. Beyond the incredible amount of expertise, experience, and knowledge they possess, physicians want to make the patients feel better. Sometimes, however, issues arise when medical professionals focus on the science (trying to solve the patient’s medical problem) and forget about the art (and heart) of practicing medicine. Informed Consent: The law dictates that patients must be informed of the risks and benefits of a procedure before undergoing surgery. The legal wording found on the average consent form signed by the patient prior to the procedure can be difficult to fully comprehend if the patient is in a state of shock or nervous anticipation. Yet, patients and their families are asked to sign the form to acknowledge they have been told about the risks of the procedure and that they understand and accept them. It is beneficial for the physician to take the time to sit down with the patient and “interpret” this information for them. The physician should seek out questions from the patient and make sure they understand the risks and benefits of the procedure. The “Informed Consent” concept is that the patient will learn enough from his or her physician to make an informed decision. Case Study #4: After a renal cyst was confirmed by CT scan, the PCP sent this 39-year- old female to a specialist for a consultation. At that time, the patient was not experiencing any pain associated with the cyst. A renal scan the following month showed good kidney function. The specialist decided not to remove the cyst, due to its location (intra-renal), the likelihood that the cyst would reoccur, and potential complications associated with the patient’s obesity. A year later, the patient returned to the specialist, at which time a CT scan revealed three kidney stones. She was started on Urocit K (potassium citrate), with orders to return in one year. The patient did not return to the specialist until three years later. At that time, she remained asymptomatic. A CT scan revealed that the renal cyst had enlarged, that the three kidney stones were still present, and a liver hemangioma had grown slightly. Urocit K was re-started. 6
  13. 13. Ultimately, the specialist determined that an operative laparoscopy was indicated to removethe renal cyst. Two months later, the patient was admitted to the hospital to undergo threeprocedures to be conducted during the same overall surgery. First, the defendant, Surgeon 1,and Surgeon 2 did a laparoscopic ablation of the cyst. Second, Surgeon 2 performed acholecystectomy. Third, Surgeon 3 finished with a laparoscopic, vaginal assistedhysterectomy. The procedures appeared to be without complications, and the patient wasadmitted to the hospital for an anticipated one-week recovery period.During the next few days, the patient ran a fever, spiking to 103 degrees on the third daypost-surgery. Also on that date, a CT revealed a moderate amount of free air in the pelvis.X-rays and a CT scan taken one week after the surgery revealed an increase in the amount offree air beneath the diaphragm and bilateral pleural thickening. The patient experiencedworsening abdominal pain and cessation of bowel movements. An infectious diseasespecialist was consulted and his impression was acute renal insufficiency, hypoxia, urinarytract infection (UTI), and possible intra-abdominal infection. The next day, a generalsurgeon performed a diagnostic laparoscopy, converted to an exploratory laparotomy, whichrevealed a perforation in the colon with leakage of bowel contents. The patient was given acolostomy and loop ileostomy (which remained for six months).Due to the large amount of infection and edema, an abdominal wound vacuum was placedwith the abdomen left open, and antibiotics were begun. The patient was transferred to theintensive care unit (ICU) where she remained for four weeks. The patient was discharged 44days later with the wound vac still in place. Eight subsequent procedures were required tore-open the abdomen, replace the wound vac, irrigate the abdominal cavity, and/orplace/tighten a Whitman patch.Analysis: The patient originally asserted various claims of negligence against thedefendant physician, but, due to the singular criticism in plaintiff expert’s report, the caseboiled down to one of a claimed lack of informed consent. Fortunately, the defendantphysician engaged in conservative treatment of the patient. Knowing that surgery would bedifficult for her, he monitored her condition over several years. During that time, thephysician had several discussions with her about the possibility of surgery and the risks andbenefits of the surgery. The fact that they chose not to do surgery for quite some time was agood indication that the patient was aware of the risks and was choosing, at least during thattime, not to risk surgery. It was only when the physician and the patient decided togetherthat the risk of not doing surgery was going to be greater than the risk of surgery that thedecision was made to go forward. This is a great example of working with a patient to makean informed decision. Even with a very unfortunate outcome for the patient, the physician’scare could be defended at trial.Outcome: The decision was made to take this case to trial based on the excellent careprovided by all involved even though the course for the patient was difficult andunfortunate. It was decided to stipulate to damages of $880,857.90 (medical expenses of$362,137.90, wage loss of $18,720, pain and suffering capped damages of $250,000 and lossof spousal support damages of $250,000) to try to keep out the horrendously bad factsconcerning patient’s recovery. By stipulating to damages, the patient was not allowed topresent any evidence to the jury pertaining to her difficult course and recovery. Rather, thepatient could only present evidence on the liability issue of informed consent. Evidence was 7
  14. 14. presented about the defendant physician’s discussions with the patient and she testifiedregarding her understanding of the risks. The case was presented to a jury and a defenseverdict was returned in two hours. The patient appealed, claiming jury instruction errors.She ultimately lost her appeal.Points to Remember: Informed consent is a process, not merely a piece of paper. This is an opportunity to educate your patient. Be advised that patient comprehension may be a barrier to informed consent. Always document that you explained surgery performance, benefits, expectations, risks, and other related information to the patient.Failure to Diagnose/Treat: The issue of failure to diagnose is a recurring subject ofprofessional liability claims. Patients expect physicians and other health care professionalsto be all-knowing, symptoms are not always clear predictors of the ultimate problem, andpatients have a difficult time accepting the sudden loss of a loved one. The culmination ofemotions and anger over the loss often leads patients and their families down the path ofblame. The physician is the most logical and lucrative target.Case Study #5: An emergency room (ER) physician saw this 40-year-old male patient inthe ER with complaints of chest pain. The pain was sharp and burning in his mid-chest areaand, at the time, was waxing and waning. The patient rated the pain as 4 on a scale of 1-10 atthe time. He told the ER physician that he had no significant past medical history and wastaking no medications. Review of systems was negative. The patient admitted to smokingtwo packs of cigarettes a day, occasional use of alcohol, and a distant history of cocaine use.He also related that he drank 1-2 pots of dark coffee per day. He did not see a localphysician. Physical exam was essentially normal, although blood pressure was noted to be148/90. Heart rate was regular with no murmur. Lungs were clear. No EKG was performed.However, the physician noted that the patient was on cardiac monitoring while in the ER,and there was no evidence of arrhythmias, ST elevation, or depression on the monitor.The ER physician empirically treated the patient with a GI cocktail, which completelyresolved his pain within five minutes. The physician diagnosed esophagitis andgastroesophageal reflux disease and discharged the patient from the ER with dietarymodifications and instructions to take Previcid 30 milligrams two times daily for eightweeks. The physician also instructed him to contact the ER if his symptoms worsened,provided the patient with a referral to a PCP, and instructed him to follow up within 2-3days.Shortly thereafter, the patient was returned to the ER by ambulance after having been foundunconscious at his home. The same ER physician again assumed his care. According to thepatient’s girlfriend, who had accompanied him on the prior ER visit, his chest pain began torecur approximately ten minutes after they arrived home. She left the room briefly and thenreturned to find him lying on the floor with no respirations. He was resuscitated in the ER. 8
  15. 15. He was flown to another facility where he was diagnosed with a 99% occlusion of the proximal left anterior descending (LAD). He never regained consciousness and died. Analysis: Our attorney consulted an expert to review the facts and provide an opinion of the medical care provided. He opined that the ER physician fell into the trap in which many physicians fall – that of believing the patient too much. The expert said the ER physician appeared to have been unduly influenced by the patient’s own minimization of his symptoms of epigastric pain and his lighthearted attitude in the ER. This led the ER physician away from a diagnosis of potential cardiac pain, which resulted in his decision that an electrocardiogram (EKG) was not necessary. The expert stated that, in this day and age, if a patient complains of chest or epigastric pain in the ER, an EKG is part of the routine workup. He also felt that had an EKG been done, it would have been abnormal and prompted an immediate admission to the hospital. The expert placed some blame on the patient for not sharing very pertinent information such as prior episodes of chest pain, including chest pain on exertion. In fact, the patient specifically denied those things when asked. He also agreed that it was questionable whether the patient would have survived his MI, even if it had occurred in the hospital. Nonetheless, he stated that the patient would probably have been admitted anyway, his denials notwithstanding, and that the hospital would have been the better place to be when he had his cardiac arrest later that morning. There are mitigating factors mentioned above; however, the ER physician provided substandard care in failing to perform an EKG, in dismissing the patient prematurely, and in misdiagnosing the problem. Although he did not cause the patient to have a heart attack, this is a case where causation is the failure to prevent the damage. Outcome: This case settled at mediation for an amount within the physician’s primary insurance limit. Points to Remember:  Some patients are not always completely honest. Follow your training and experience in assessing the condition and in deciding on a course of treatment.  Do not always assume that the most likely diagnosis is the correct one. Oftentimes, it is the least likely diagnosis that can be catastrophic if missed.4. Litigation Issues There is more to taking a case to trial than defending good medicine. The legal side of the case presents different challenges in presenting a successful case to the jury—a world in which most physicians are unfamiliar. There are numerous issues that arise during the course of a lawsuit that could impact the defensibility of the case, many outside the control of defense counsel. Issues such as venue, judge, jury, opposing counsel, and statutory and procedural constraints are types of legal issues that are difficult to control and which could have a significant impact on the case. Others, however, can be controlled by the defendant and counsel. 9
  16. 16. Finger Pointing: Finger pointing is a troublesome and common litigation issue. It isnatural to think you did nothing wrong and to blame others for the problem. A successfullegal defense focuses on defending the care of each individual provider without crossing theblame barrier. This takes self control and trust in legal advice that sometimes feels counter-intuitive.Case Study #6: A 57-year-old male patient saw his PCP for swelling, tightness and painin his left leg. The next day, a chest x-ray was taken and read by Radiologist 1. Hisimpression was “No acute abnormality demonstrated.” Ten days later, the patient had anemergent fasciotomy and evacuation of a hematoma of the left leg, and aspirated uponextubation. The patient saw his PCP for follow up one month after the procedure. A chest x-ray was read by Radiologist 2 with an impression of “normal with development of linearatelectasis in the right perihilar region.” Two months post-surgery, the patient underwent achest x-ray read by Radiologist 3, which found there was mild prominence to the leftsuprahilar region similar to films taken one month post surgery, but no change. Radiologist3 suggested a comparison with old films to re-evaluate the region or, if no old films wereavailable, a CT would be helpful to help exclude a mass. The PCP compared this film toprevious films, but did not order a CT scan.The PCP saw the patient four months post-surgery and another x-ray was taken. Radiologist4 stated that “the left suprahilar fullness appears very similar to the (two months post-surgery) exam and chest stable since (two months post-surgery) exam.” The PCP saw thepatient at five months post-surgery, eleven months post-surgery, and one year after thesurgery, and no films were taken.The patients next visit was fourteen months post surgery where he was seen by a physicianassistant (PA) for cough and chest congestion which had persisted for two and a halfmonths. The PA ordered a chest x-ray. That film was read by Radiologist 5 who stated therewas a "suspicious left suprahilar mass or infiltrate.” He suggested a CT scan for evaluation.The patient had a CT scan which identified a lobulated mass along the mediastinum and leftupper lobe pleural surface. The mass was identified as adenocarcinoma. The patient wasdiagnosed with poorly differentiated, Stage II-B cancer and died fourteen months later.Analysis: This is an interesting case on many levels. The patient was fairly young, made agood living for his family and had small children which made damages high. The fact thatall of the radiologists were partners created a unique dynamic. For the most part, the defenseattorneys felt they could zealously defend their clients without placing blame on the otherdefendants. However, Radiologist 3 and his attorney struggled with this task. If thephysicians blamed each other, they would end up presenting evidence that would normallybe presented and have to be proven by the plaintiff. It is a self-destructive cycle andgenerally does not benefit the defense team. There are situations where comparative faultcannot be avoided. Radiologist 3 and his attorney felt this was one of those situations. Therewas information in a screening panel decision indirectly implicating the other physicians. Anagreement not to compare fault by Radiologist 3 would mean foregoing the chance topresent the screening panel decision to the jury--a benefit they were not readily willing togive up, especially since the panel decision also contained opinions favorable to Radiologist3. Part of the solution in this case was for all of the parties to work together on acollaborative approach to trial. 10
  17. 17. Outcome: The PCP settled with the patient for a substantial amount. Radiologist 5 wasnot named in the lawsuit. It was decided that Radiologists 1, 2, 3, and 4 would defend theircare at trial. Radiologist 3, who did report the problem to the PCP, felt he did nothingwrong. He also felt the problem was present in previous films reviewed by his partners, butthey missed it. To complicate matters, his attorney requested a concurrent screening panelaction which resulted in a positive opinion in favor of the care provided by Radiologist 3.On the first day of trial before the official proceedings began, plaintiff offered to dismissRadiologists 1 and 2 if Radiologists 3 and 4 would not compare fault with them.Radiologists 3 and 4 were reluctant to give up their right to compare fault but ultimatelyagreed. The trial went forward against Radiologists 3 and 4 and resulted in a defense verdictin favor of both health care professionals.Points to Remember: Focus your efforts on defending your care, not criticizing the care of others. Trust and follow the advice of your attorney and defense team throughout the litigation process.Willingness to Defend Good Care: In many cases, a decision is made to defend themedical care provided by the physician through trial. Sometimes, when such a decision ismade, the insured defendant is dismissed from the case prior to the trial date, either tosimplify a case against another defendant or because a settlement was received and theplaintiff may feel a trial against the remaining defendant would be futile. In an efficientlyrun case, it would take about two years for the attorney to prepare a case for trial. Somecases, for various reasons, drag on for years. The bottom line is that a case cannot be takento trial without a defendant. Seeing a case through to trial takes stamina, attention, nerves ofsteel, an understanding and supportive family or support system, patience, confidence (butnot arrogance), willingness to follow advice that may seem counter-intuitive, andwillingness to leave your medical practice during the full course of the trial. No easy task.Case Study #7: A pregnant 17-year-old female patient received a free genderdetermination sonogram. As per the hospital’s policy on free gender determinationsonograms, no report was made. The sonogram technician was not able to determine thegender of the baby. The sonogram demonstrated a fetal developmental defect calledgastroschisis. The technician notified the patient’s PCP that there was an abnormality. ThePCP attempted to contact the patient eleven times during the week following the abnormalfinding. Finally, an office staff member was able to leave a message with an individualthought to be the father-to-be, telling the patient to call the physician. The patient nevercalled in and “no-showed” for her appointment scheduled eleven days after the sonogram.She did not present to the physician again until approximately two months later.During the nearly two-month time span between the sonogram and the next appointment, thephysician forgot about the abnormal sonogram and did not discuss the finding with thepatient. The child was born by Cesarean section due to maternal chorioamnionitis at 37weeks’ gestation. The child was transported to a tertiary care facility under the treatment of 11
  18. 18. a pediatric surgeon to repair the bowel. However, since all but approximately three inches ofbowel was dead, the surgeon closed the wound and informed the parents there was nothinghe could do. The child died after living in hospice care at home for approximately threeweeks. The patient alleged that the PCP fell below the standard of care and was negligent inthe care provided.Analysis: While the standard of care does require a physician to inform a patient of anabnormal sonogram, the patient also has a responsibility to actively participate in her care.Being available by phone for reports from the physician, returning phone calls, and keepingappointments are all part of a patient’s responsibility. The physician’s willingness in thiscase to stand behind the care provided and remain committed to his own defense was greatlytested by the inordinate length of time his case took.Below is an abbreviated timeline of the case:February 2002 The baby was born and died three weeks later.December 2003 The patient filed suit against the physician and the clinic.August 2004 The initial scheduling order was finalized and trial was scheduled for May 2005.March 2005 A Motion for Summary Judgment was filed and granted on behalf of the clinic for lack of expert testimony criticizing the actions of the clinic.April 2005 A Motion for Summary Judgment was filed on behalf of the physician.May 2005 The trial was continued.May 2005 The court granted the physician’s Motion for Summary Judgment dismissing the physician from the case.May 2005 The plaintiff filed a timely appeal to the Kansas Court of Appeals, seeking relief from the Motion for Summary Judgment granted on behalf of the physician.March 2006 The plaintiff’s appellate brief was filed.June 2006 The physician’s appellate brief was filed.September 2006 The plaintiff filed a reply brief.March 2007 Oral Arguments were heard by the Kansas Court of Appeals.April 2007 The plaintiff’s appeal was denied by the Kansas Court of Appeals. 12
  19. 19. May 2007 The plaintiff filed with the Kansas Supreme Court a Petition for Review of the opinion of the Kansas Court of Appeals.October 2007 The plaintiff’s Petition for Review by the Kansas Supreme Court was granted.October/November The parties filed briefs with the Kansas Supreme Court.2007January 2008 Oral Arguments were heard by the Kansas Supreme Court.May 2008 The Supreme Court reversed the Summary Judgment granted by the district court and remanded the case back to where it started, in state district court.July 2008 The plaintiff filed an identical case in federal court based on diversity jurisdiction (mom moved to Oklahoma).July 2008 The plaintiff filed a Motion to Dismiss the state district court case without prejudice.July 2008 Trial was scheduled in federal court for January 2009.August 2008 The state district court denied plaintiff’s motion to dismiss without prejudice.October 2008 The plaintiff filed a Petition for Writ of Mandamus with the Kansas Supreme Court seeking review of the district court’s decision to deny the motion to dismiss.December 2008 The plaintiff filed a Motion to Stay the trial in district court pending ruling from the Kansas Supreme Court.December 2008 The plaintiff filed a Motion for Expedited Ruling with the Kansas Supreme Court and a Motion to Continue Trial with the district court.January 2009 The district court continued the trial to July 2009.January 2009 The Supreme Court denied plaintiff’s Petition for Writ of Mandamus.January 2009 The plaintiff voluntarily dismissed the federal court case.July 2009 The case went to jury in district court.Outcome: The physician finally went to trial on this case five years and seven monthsafter the claim was first filed. The result was a defense verdict in favor of the physician after 13
  20. 20. a six-day trial and one hour of deliberations. The physician and his family showed admirable perseverance and stamina in seeing the case through many years of legal gyrations. Points to Remember:  Professional liability cases tend to be complex, time-consuming, and emotionally draining.  Be patient during the litigation process.  Be committed to defending good medicine and defensible care.  Ask questions and seek answers if there are case complications or occurrences you do not understand.ConclusionThe materials presented highlight cases which represent some recurring claims issues.Hopefully, through this approach, it is evident that virtually all health care professionals may beinvolved in a medical professional liability claim at some point in their career. Even the mostcareful practitioner is susceptible. Prudent policies and procedures and effective communicationwith the patient and other health care professionals can help prevent potential claims. However,in the event a claim or lawsuit cannot be avoided, willing and active participation in the claimsor litigation process can be an integral part of a positive outcome. 14
  21. 21. NOTES
  22. 22. Supported by Bennett Bodine & Waters, P.A. Clark Mize & Linville, Chtd. Cooper & Lee, L.L.C. Foulston Siefkin LLP Gilliland & Hayes, P.A. Goodell, Stratton, Edmonds & Palmer, L.L.P. Hinkle Elkouri Law Firm, L.L.C. Hite, Fanning & Honeyman, L.L.P. Holbrook & Osborn, P.A. Horn Aylward & Bandy, LLC Hudson & Mullies, LLC Klenda, Mitchell, Austerman & Zuercher, L.L.C. Logan Logan & Watson, L.C. Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. Polsinelli Shughart, PC Sanders Warren & Russell, LLP Shaffer Lombardo Shurin, PC Woodard, Hernandez, Roth & Day, L.L.C. Wright Law Office Chtd. Sponsored by and The University of Kansas School of Medicine-Wichita Division of Postgraduate Education KaMMCO Offices Topeka Wichita Hays Kansas City623 SW 10th Ave. #2 Brittany Place 1010 Downing 6950 Squibb Rd.Topeka, KS 66612 1938 N. Woodlawn Suite 60 Suite 440 785.232.2224 Suite 300 Hays, KS 67601 Mission, KS 66202 800.232.2259 Wichita, KS 67208 785.625.8251 913.384.8991785.232.4704 (Fax) 316.681.8119 800.293.2363 800.779.8201 800.207.3073 785.625.8234 (Fax) 913.384.2296 (Fax) 316.681.7497 (Fax) www.KaMMCO.com

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