Medical Malpractice Attorney


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Medical Malpractice Attorney

  1. 1. Medical Malpractice Case studies for Advanced Practice Providers Kathy Davis RN, RNP-C, MSN November 11, 2006 Objectives 1. Recognize chief complaints that lead to malpractice 2. Identify approaches to care to minimize liability 3. Discuss malpractice cases involving advanced practice providers Legal consultant Expanded role in nursing Employed in law offices, insurance companies, private practice, risk managers, government agencies Specialties within the specialty Chart review only, testifying experts Expert witness
  2. 2. Malpractice Four legal element Duty-The clinician owed the patient a duty of care The clinician breached the standard of care The patient suffered an injury The patient’s injury was caused by the clinician’s mistake CNA Claims Study Reported and analyzed CNA-insured nurse practitioner claims data from 1994 to 2004 Study was done to identify high risk areas for nurse practitioners and to analyze the overall litigation environment in which NP’s work. There were 718 policies in effect for NP’s in 1993 and 22,311 policies in 2004 841 claims (over 10 year period) 318 cases were eliminated from the study Remaining 523 claims: 113 closed without any payment 122 closed with expense payment only (no indemnity payment)
  3. 3. 288 claims results in indemnity payments. 75% CNA claims involved NP’s in family practice and adult/geriatric specialties Average indemnity payment was $130,000-$170,000 Average adult claim: $135,000 (41 cases) family practice claim: $154,000 (41 cases) pediatric/neonatal claim: $308,000 (7 cases) OB/GYN NP’s (pre-natal and post-natal care): $81,000 (9 cases) nurse anesthetists and midwives not included in this Claims study but may be a future focus Claims by State reported closed with indemnity Florida 87 34 California 48 9 New York 48 5 Massachusetts 29 1
  4. 4. Location of claims Physician offices Clinic setting Emergency departments Hospital claims less frequent but most expensive indemnity paid Most Expensive Injuries Number Average paid Paralysis 1 $750,000 Back injuries 1 $600,000 Dislocation 1 $400,000 Brain damage 6 $377,000 OB/maternal death 1 $300,000 Number Average paid Cancer 10 $235,000 CVA (stroke) 2 $192,000 Neurological deficit/damage 3 $191,000 Death 33 $177,000 Loss of organ or organ function 9 $161,000
  5. 5. Cancer related claims Involved the failure to diagnose, misdiagnose, mistreatment or lack of treatment by the NP Plaintiff alleged their conditions worsened, or their prognosis and or course of treatment were altered due to the NP’s actions or failure to act Case Study Failure to diagnose colon cancer 1986, plaintiff aged 52 with strong family history of colon cancer, seen by NP Rectal exam, stool guiac. Discussed with MD need for barium enema. He suggested colonoscopy (never done) 1992-1996 pt saw NP, rectal exams and stools guiac done 1996- CBC showed anemia, June 1996, colonoscopy showed colon cancer Cecal adenocarcinoma, moderately differentiated, metastatic adenocarcinoma in 3 out of 15 regional lymph nodes Plaintiff argued standard of care demanded complete colorectal screening and that earlier diagnosis and treatment could have been curative
  6. 6. Settlement $950,000 settlement reached in favor of the plaintiff Case in Massachusetts, anonymous vs. anonymous nurse practitioner 82% of claims involved allegations related to: Diagnosis Treatment Medications Diagnosis Failure to diagnose Delay in establishing diagnosis Failure to obtain appropriate tests
  7. 7. Failure to diagnose Top 5 conditions Breast cancer 33.5% Lung cancer 16.9% Myocardial infarction 13.1% Appendicitis 10.3% Colon or rectal cancer 9.7% Red flag complaints Breast lump, nipple discharge, breast rash, enlarged lymph node Chest pain or shoulder pain in a person with a 20+pack year history of smoking Chest, jaw, or neck pain in an adult Lower abdominal pain Breast Cancer Most common cancer in American women Accounts for 31% of cancers in women and 15% of cancer deaths White women are more likely to develop African American women are more likely to die from breast cancer If found early, 5 year survival rates 97%
  8. 8. Myocardial Infarction MI is the leading cause of death in the United States One third of individuals who have a MI do not survive Listen to the story…history, history, history Case study #1 Case study #2 Rules Know red flag complaint and conditions Rule out the worst things first Know the risk factors that call for screening tests Following up on diagnostic tests and referrals Revisit an unsolved problem until it is resolved Rules Prescribing musts: Have office systems and policies for follow up Audit charts for mistakes or omissions Treat every medical opinion that you give as if it were given during an office visit Have specific follow up activities for tests or procedures
  9. 9. Treatment Failure to treat symptoms in accordance with established standards Failure to obtain consultation Improper management Delay in treatment or care Improper treatment Medication Failure to properly discontinue medication Administering wrong medicine Incompatibility/contraindicated Cost of malpractice Costs about $100-250,00 to defend a case Depends on number of experts, may be 6 experts on each side Causation, damages expert Rehabilitation expert, life care planner About 85% of cases are settled out of court
  10. 10. Case studies Almost every nursing paper, and publication, whether specific for NP, PA, Midwives or CRNA has legal advice and case studies NSO on line has a case of the month Kaiser Permanente Self insured for medical malpractice In-house legal team at region Kaiser lawyers also contract out to defense law firms Every facility has a risk manager Ombudsman KP program based on National Naval Medical Center Program in Maryland Different from member services or risk manager Informal process used Shift from adversarial to early collaboration KP to date – over 9,000 cases with positive provider and member response
  11. 11. Ombudsman Impartial third party Resolves healthcare conflicts at the earliest possible time as close to the event as possible Clarifies perceptions, frames issues Helps create options & assist in reaching sustainable & mutually satisfactory solutions Addresses communication issues, may include: Unexpected outcomes/deaths Medical errors Possible systems/practice issues Communication problems Lack of information What do patients and families want? An honest explanation Sincere acknowledgement, sometimes comes in the form of an apology Fix of the problem/system so “it doesn’t happen to anyone else.”
  12. 12. Communication Musts Provider and patient develop a partnership with shared decision making Effective communication is essential both before and after disappointing outcomes Loss of trust & emotional distress may occur when accompanied by perceived professional indifference Conclusions Know what you know, know what you don’t know Use your critical thinking skills Listen, listen, slow down, listen Treat every patient as if they were your own family Use your mentors, consult with specialists Conclusions Continue to improve your communication skills Network with other providers within your facility, community and the state Ask your mentor to look at the patient with you…I need some help here; Can you look at this patient with me; I’m not sure what’s going on
  13. 13. Conclusions If no mentor available, find one Call the MOD, ER doctor or a specialist Keep your skills sharp, read, go to conferences Document, document, document Know where to go for help if you are named in a law suit Conclusions Be prepared Relax, work hard Balance your family, friends, and career Have fun at a challenging and rewarding profession Bibliography Bogart, J. (ed.). (1998). Legal Nurse Consulting: Principles and Practice. American Association of Legal Nurse Consultants. Buppert, C., (2004). Avoiding Malpractice. Annapolis, MD: Law Office of Carolyn Buppert. Buppert, C., (2004). Nurse Practitioner’s Business Practice and Legal Guide. Sudbury, MA: Jones and Bartlett Publishers, Inc. Nurse’s Legal Handbook. (1999). Springhouse, PA: Springhouse. Nurse Practitioner Claim Study: An analysis of Claims with Risk Management Recommendations. (1994-2004). CNA Health Pro; NSO (Nurses Service Organization).
  14. 14. Nurse Practitioner’s Legal Reference. (2001). Springhouse, PA: Springhouse. Poynter, D. (2005). The Expert Witness Handbook: Tips and Techniques for the Litigation Consultant. Santa Barbara, Ca: Para Publishing. NSO (Nurses Service Organization). The American Journal for Nurse Practitioners: The Pearson Report. (2006). (Vol. 10 No. 1). California pp. 40-42.