2018 HANDOUT NRDNP 848B Role Practicum FILE ONE OF TWO ...people.musc.edu/~decristc/Malpractice/malpractice... · o Facts alone dictate the outcome of a case: jurors look more at

File One: Legal Factors in Safe Practice & Risk Management Page 1 of 23

Filename: malpractice_part1.pdf Source: Claire DeCristofaro, MD

SAFE PRACTICE...

LOSS PREVENTION...RISK MANAGEMENT...

MEDICAL LIABILITY...

MALPRACTICE !!

Lecturer: Claire DeCristofaro, MD Course Coordinators: Dr. Beth Jensen & Dr. Elizabeth Harmon

2018 HANDOUT

NRDNP 848B Role Practicum

FILE ONE OF TWO: LEGAL FACTORS



Note: Statutes vary widely from state to state. South Carolina is highlighted in this lecture.

FILE ONE: LEGAL FACTORS

LEGAL BASICS: Hippocrates said, "Life is short and the Art long; the occasion fleeting; experiment dangerous, and judgment difficult." Our job is likely to result in mistakes! OVERVIEW – THE LEGAL SYSTEM: • Why a legal system?

o exists to provide redress (damages) to individuals or surviving relations when they believe themselves or loved ones have sustained injury (mostly through negligence)

o Less than 2% of patients who are injured through negligence ever file suit o AND, 4 - 5 times as many patients with injuries but without valid claims file suit

• Purpose of medical malpractice systems: o compensate patients injured during an encounter with a health care provider, usually a doctor,

hospital, or nurse (no other system exists for compensation, except the VAERS vaccine-related injury system)

o deter future medical errors by health care providers (threat of lawsuit) o punish negligent hospitals or physicians (similar to criminal incarceration) o eliminate incompetent and malevolent practitioners (drive them out of the market)

• The Malpractice “Crisis”: o Malpractice crisis has “broken the system” – VARYING solutions:

Some solutions include mandatory arbitration (requires parties to come to mediation in order to avoid costly jury battles) – some state have this.

Also, mediation before a case can be filed. Other solutions include mandatory damage caps and elimination of shared liability,

more. Another example is the venue – where the trial is held – it must be held where the

injury occurred (lawyers can’t “shop around” for a jury friendly to their clients) • Overviews of medical malpractice (tort liability) reforms:

o http://www.atra.org/issues/medical-liability-reform and o http://journalofethics.ama-assn.org/2016/03/pfor6-1603.html

Some South Carolina legislated reforms: • Medical Liability Reform: Noneconomic Damages: S. 83 (2005). Limits noneconomic damages in

medical liability cases to $350,000 per provider, with an overall aggregate limit of $1.05 million. • Joint and Several Liability Reform: Medical Liability: S. 83 (2005). If there are multiple

defendants in a civil action, joint and several liability does not apply to any defendant 50 percent or less responsible for the damages. Comparative fault – if the plaintiff is found to be greater than 50 percent responsible for the total fault, then the plaintiff is completely barred from recovering damages. A defendant found to be less than 50 percent responsible is only responsible for its proportional share of damages based on its percentage of liability.

• Report on effects of SC reforms: https://www.scstatehouse.gov/reports/DeptOfInsurance/2015TortReformReportFINALWithAttachments.pdf

http://www.atra.org/issues/medical-liability-reform

http://journalofethics.ama-assn.org/2016/03/pfor6-1603.html

https://www.scstatehouse.gov/reports/DeptOfInsurance/2015TortReformReportFINALWithAttachments.pdf




Will I get sued? • Chances of being sued for physicians:

o for physicians a 68% chance of one lawsuit in their medical career, a 20% chance of being sued twice… then the percentage diminishes sharply

o although – some “high-risk” specialties (neurosurgery, OB) may have different risks • Chances of being sued for NPs:

o Not as much information about this statistic o However now that NPs have been in practice longer AND most states have full practice

authority, we do have some information: o See: https://www.npjournal.org/article/S1555-4155(15)01110-1/pdf and

https://www.fiercehealthcare.com/finance/malpractice-claims-nurse-practitioners-payouts-are-increasing-opioids

• Both insurance cost AND malpractice payments for closed claims continues to rise o Payout amounts: Errors in diagnosis > Errors in treatment > Medication errors o Practicing “outside scope of practice” represented only 1% of claims but resulted in the

highest payout amount What about the MONEY? 1. Contingency financing: lawsuits take a long time & are expensive, so lawyers will take a case & tie up time & money ONLY if they perceive a chance to win damages that will also compensate them. 2. Plaintiff's award:

• This is the USUAL arrangement: • the attorney receives 1/3 of the award (unless otherwise specified by contract between the

claimant plaintiff and the attorney) • the monetary award is further reduced by expenses (court costs, expert witness fees,

travel, etc.) • the plaintiff receives the remaining amount after the above reductions

• There are laws in some states that regulate the agreement between the plaintiff and the attorney • Awards for lost wages require payment of income tax; other award amounts do not (tax-free). • Some states require the “periodic payment” of medical malpractice awards

• Designed to payout to the plaintiff over time, so that they are taken care of as compensation for actual damages rather than as a lump sum to involved parties

• Other states do NOT require this periodic payment • The “clock is ticking” from when the action is brought until the judgment is determined – thus

there is often an interest rate applied to any sum of money awarded 3. Monetary Caps on Awards:

• Vary from state to state – some recently instituted as part of “medical malpractice reform” • South Carolina has a cap on non-monetary damages of $350,000

A nice overview of different amounts paid for claims in emergency department lawsuits (by state): http://www.aaem.org/UserFiles/SepOct14MedicalLiability.pdf (Sep. 2014)

https://www.npjournal.org/article/S1555-4155(15)01110-1/pdf



http://www.aaem.org/UserFiles/SepOct14MedicalLiability.pdf



What types of legal cases are these? These are “civil” cases (not “criminal” cases) What is a CIVIL case? Civil liability is for NON-CRIMINAL acts • Torts:

o willful (intentional) acts or negligence. Implies wrongful conduct or negligence (no evil intent). o This is the basis of clinical practice — we have received "consent" to touch another person so

that we are not committing battery. o However, this must be "informed consent" or the consent is without value.

• Negligence: o the basis for most malpractice claims. o concept of "standard of care" that must be determined by prior suits and expert testimony. o These concepts are DEFINED in law, vary by state.

• Contract liability: o no implication of wrongdoing other than failing to meet an obligation. o Malpractice implications: promising an outcome that does not occur. o We are "trying" to cure them, not "guaranteeing" a cure (or other outcome).

Filed claims and court cases:

• Claims and actual injuries (bad patient outcomes) and provider errors:: o 3% of claims had no verifiable medical injuries (the patient was not harmed) o 37% did not involve errors (although there was a poor medical outcome) o 60% involved errors

• Payments for claims: o If the injury was due to errors, 73% of these resulted in payments o 28% of claims not due to errors resulted in payments, and these claims were lower in

monetary amount than those resulting from errors o 16% of claims not due to injuries resulted in payments

• Overhead costs of litigation are 54 cents on the dollar (lawyers, experts, courts) o This is considered an exorbitant overhead cost for most o Most of these overhead costs (78%) were in litigation involving errors

• What does this mean? o “frivolous” lawsuits are not causing the explosion in malpractice costs o Improving the system’s handling of cases involving errors would reduce costs

• Claims making it to trial and outcomes; o 40% are settled out of court, 10% make it to trial. o Of the 10% of claims that ultimately end up in court, physicians are successful 80% of the

time and only 20% of the time do the patients win the court case. Studdert DM, Mello MM, et al. Claims, errors and compensation payments in medical malpractice litigation. N Engl J Med 11 May 2006; 354(19): 2024-33. http://content.nejm.org/cgi/content/abstract/354/19/2024 Mello, MM, Studdert, SM, Kachalia, A. The Medical Liability Climate and Prospects for Reform. JAMA 2014;312(20):2146-2155. doi:10.1001/jama.2014.10705. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/25358122

http://content.nejm.org/cgi/content/abstract/354/19/2024

https://www.ncbi.nlm.nih.gov/pubmed/25358122



How to think about these cases: • Risk management = LOSS PREVENTION:

o process of identifying, evaluating or assuming and acting to prevent, reduce, eliminate or transfer the risk of loss

o MOSTLY means competent clinical care do not exceed scope of practice documentation of same

• Misconceptions about the outcome of legal battles: o Facts alone dictate the outcome of a case: jurors look more at the defendant's credibility &

trustworthiness. o The side with the best expert wins: defendant was there at the time and testimony is more

important to jurors. But, expert witness can help explain technical terms or give information to support the thinking and actions of the defendant.

o The defendant's appearance & demeanor have little bearing on the case: defendant is watched throughout the trial, including taped "discovery" sessions where defendants may mistakenly believe there isn't much seriousness to the proceedings.



OVERVIEW – WHY DO PEOPLE SUE?? • Poor provider communication & poor provider attitude:

o in some surveys, up to 70% of lawsuits are a result of poor provider communication and attitude. o SEE LATER SECTION ON THE 5 C’s OF PRACTICE.

• Other issues: o financial incentives (what we used to call, in my Tennessee practice, a “Greenback Poultice”) o other providers disparaging care of previous providers (“hanging your colleagues out to dry”) o media play given to malpractice suits

• Can lawsuits be prevented = Loss Prevention: • YES. Recognize these issues and realize that you can prevent lawsuits. • SEE LATER SECTION ON LOSS PREVENTION.

True medical malfeasance: 1% of hospital discharges have legally valid claims (not just "nuisance" suits). Factors promoting lawsuit: need for money is only cited in 1/4 of claims. The other 3/4 cite other reasons:

• Wanting to find out what really happened (it all comes out in court) • Belief that providers had "hidden" things from them • Another subsequent provider stated or implied that care was substandard • Wanting to "punish" the provider for perceived lack of compassion

From your friendly malpractice lawyers: Good internet site with state-specific information from McCullough, Campbell & Lane (Malpractice Attorneys) http://www.mcandl.com/states.html

http://www.mcandl.com/states.html



TOP FIVE REASONS PATIENTS FILE CLAIMS: 1. Failure to diagnose or to make a timely diagnosis:

• top five areas: o cancer o MI o appendicitis o infection o meningitis

• key in this situation is to initially recognize that the individual falls into a risk category and aggressively pursue symptoms or findings.

• recognition that certain tests (e.g. mammogram, stool hemocult, etc.) are just screening tests and should be utilized in that capacity (e.g. not to completely rule out cancer).

2. Treatment related claims:

• commonest: o failure to recognize drug interactions or perform proper monitoring for drug therapy

(coumadin, steroids, digoxin, dilantin). o dependence on addictive substances due to poor followup and re-evaluation.

• thus, prevention includes proper care & CHARTING: o drug allergies on chart o recognition of previous substance abuse o polypharmacy (possibly due to other providers) o documentation of prescription and patient information (including handouts) o telephone prescriptions must be documented, but avoid these if at all possible (especially

for new prescriptions). o MORE on charting in the Second Section (Loss Prevention)

3. Fractures:

• be sure all Xrays are over-read by radiology in a timely manner and original unofficial reading compared with radiology reading.

• Advise that your initial reading may be CHANGED by the official radiologic reading and that they will be contacted if this is different

• make sure you have contact information to reach patient, advise that reading may differ & you may need to reach them.

• advise that any fracture may result in impaired function (not complete return to normal functionality) and that an initial negative Xray may need repeating (not all fractures show up on first film).

4. Unrealistic expectations:

• if surprised regarding final outcome, lawsuit is likely. • don't promise what you can't deliver.



Abandonment & TERMINATING care of a patient – THE DIFFICULT PATIENT:

• you must continue to deliver care for this illness until you are discharged by the patient, or you discharge the patient properly o if you do this improperly, it is abandonment o if you need to end your patient-provider relationship, this is called termination and it must

be done properly o you can certainly try to work with the patient first, setting boundaries, and requesting

changes in their behavior • typically, this is a difficult patient

o if this is a person who falls under disability legislation protection, you may need to consult an attorney to be sure you are not discriminating against them

o you may need to notify the patient’s insurer, especially if they are in an HMO that has assigned them to you or your practice

o a non-hostile, non-punitive certified mail (return receipt) letter is sent, notifying the patient of termination & giving appropriate time to obtain alternate medical care.

o the reason for termination does not have to be given (noncompliance, change in hospital affiliation, change in MCO participation, retirement, moving, etc.)

o Make sure your partners in the practice agree with this – it would be a bad scenario for the patient to continue care at the same practice (you might have to cover your partner in their absence and see this patient again!)

• Good article and even a flow sheet on this situation from the AAFP o ARTICLE with sample letter to discharge a difficult patient:

http://www.aafp.org/fpm/20050900/34term.html#box_a o FLOWCHART ON MANAGING DIFFICULT PATIENT AND TERMINATION:

http://www.aafp.org/fpm/2005/0900/fpm20050900p34-rt1.pdf BOTH OF THESE ARTICLES ABOVE ARE WELL WORTH PRINTING OUT… CLINICAL PRACTICE RESOURCES: • the AAFP has a good webpage with clinical practice tools at:

http://www.aafp.org/online/en/home/publications/journals/fpm/fpmtoolbox.html#i (some are free, some require AAFP membership)

• Nurses Service Organization (NSO) (providers of malpractice insurance): https://www.nso.com/Learning/Individual (look for “Articles”)

WHAT TO LOOK FOR IN A NEW PRACTICE & INTERVIEW TECHNIQUES: http://www.aafp.org/fpm/2001/0100/p38.html#box_a

http://www.aafp.org/fpm/20050900/34term.html#box_a

http://www.aafp.org/fpm/2005/0900/fpm20050900p34-rt1.pdf

http://www.aafp.org/online/en/home/publications/journals/fpm/fpmtoolbox.html#i

https://www.nso.com/Learning/Individual

http://www.aafp.org/fpm/2001/0100/p38.html#box_a



WHAT TO DO IF AN ATTORNEY CALLS ASKING TO DISCUSS A CASE? • Hang up the phone and contact your malpractice carrier NOW – call first, then follow their

instructions. • Put the original chart in a secure (locked & fireproof) location. • Do NOT release the ORIGINAL chart to anyone (you can send a “true” copy for legal purposes

if you get sued). • Grant no interviews, unless authorized by your insurer with attorney present. • Talk to NO ONE except your spouse (spouse cannot testify against you in court) • Do not call the plaintiff, OR the attorney. Do NOT write an explanatory letter, or discuss the case

with anyone except your spouse or insurance claims adjustor. You can be asked with whom you've talked, and they can be deposed at the trial.

• Make a copy of the original chart, and put the COPY out in the chart rack • Be RESPECTFUL of the plaintiff's lawyer and the entire process, even if you believe this is a

malicious or “nuisance” lawsuit. Start being respectful from the very beginning. WHAT TO DO IF AN ATTORNEY OFFICE SENDS A RECORD REQUEST? • Before releasing any records, find out why they want them:

• could be that the patient is using medical records to establish a health history for a lawsuit that has nothing to do with you

• could be that you will be asked to testify on BEHALF of the patient – someone else being sued?

• could be that YOU are being sued – this is an “intent to sue” request • If this is an intent to sue request – FAX the attorney request IMMEDIATELY to your malpractice

insurance carrier • your policy probably has a clause requiring notification within a set time period • be SURE you hear BACK from them – if not, call and verify receipt and ask for a written

receipt of notification • Proceed with CAUTION in releasing records; patient written authorization must accompany request. • Be mindful of new HIPAA regulations on privacy of medical data. • Advise your insurance carrier immediately; your legal defense starts NOW. • If you receive a "reservation of rights" letter, this means that there is a conflict between you & the

insurer, such that the insurance company feels the policy does not cover the claim in question. This could be for many reasons, including the type of claim (e.g. assault & battery, criminal activity). Get your own lawyer NOW.



SOME LEGAL DEFINITIONS: 1. Standard of Care:

• has evolved from the local standard to a current national standard of care, within your specialty or professional certification.

• includes the level of care that would be exercised by competent practitioners in the defendant's field of medicine.

• does NOT imply "perfection" and may require expert testimony to define. 2. Negligence & Standard of Care: in order to establish a legal case of negligence, the injured party must establish:

a) a duty to exercise care (occurs when you undertake to treat) b) the applicable standard of care (evolving concept, see below) c) a breach of the standard of care (plaintiff must prove this) d) a causal relationship between the breach of duty and the injury to the claimant. (you may

have made a mistake, provable, but it had no relation to final outcome) An attorney should NOT even accept a case unless the above criteria are met. The attorney may request records to determine this. Unless substantial evidence exists to support the above criteria, there IS NO CASE.



3. Informed Consent: consent is only valid if informed. Includes consent to procedures, testing (e.g. HIV), drug therapy, use of medical devices.

• Ethical responsibilities: (where informed consent originated — ethics) o Autonomy: right to self-determination (withhold or withdraw consent). o Beneficence: duty to do good & help others. o Nonmalfeasance: obligation not to inflict harm. o Justice: patient deserves to be treated fairly. o Fidelity: provider will keep the implied promise of acting in the best interest of the

patient. • Diagnosis: clearly defined. • General nature of procedure: Describe the actual procedure. Diagnosis must support need

for the procedure. Explain why procedure is needed, what will be accomplished by the procedure, & probability of success if the procedure is performed.

• Material risks involved in procedure: possible complications, alternative treatments. Use language that a "reasonable person" would understand.

• Probability of success associated with procedure. • Prognosis if procedure is not carried out. • Existence of any alternatives to the procedure. • Witness. Not required, but helpful (institution may require). • Emergency situations. Start treatment and other staffers should try to contact the family. • Who gives consent? Juries are practical about the need to have surrogates give consent

when urgent care is needed. Get a close relative, such as spouse, parent, child or other adult blood relative or relative by marriage. If there is a guardian, or attorney-in-fact (durable power of healthcare attorney), this individual may give consent.

4. Consent for minors:

• Emancipation: Married minors are emancipated. Minor parents may consent to health services for their child. In South Carolina, a minor 16 y/o or over may consent to health services other than operations. If essential to preserve the life, limb or eyesight, the procedure may be performed (consider an additional consulting physician).

• Ward of the court: A child can be made a ward of the court if parents refuse treatment that is designed to preserve the life, limb or eyesight of the child.

5. Religious objections:

• provider must follow religious beliefs of patient, including patient's prior instructions. • these may NOT be ignored, even if patient is unable to give consent at the current time.



6. Duty to warn: • Infectious disease: warning a patient with an infectious illness about the potential for

spreading illness through specific identifiable risk behaviors (chart that warning has been given, if given an information form include in the chart).

• Not driving: warning about not driving due to medical impairment. Includes poorly controlled epilepsy, sensory loss (poor vision or hearing), dementia, other medical condition that would endanger himself & others should he drive. In South Carolina, provider is only ethically bound to report; but in other states (e.g. TN), legally bound to report this to state motor vehicle dept.

• • usually requires "expert testimony," unless proof is enough to convince a reasonable person

without any special medical knowledge. 7. Burden of Proof: plaintiff must provide evidence towards a verdict. 8. Proximate Cause:

• the plaintiff must show that he has sustained damages, and that these damages are a direct result of actions or negligence on the part of the treating provider.

• this legal connection is called proximate cause — the thing which brings about the injuries complained of (the "but for" argument).

• often a very fuzzy concept in actual legal cases. • usually requires "expert testimony," unless proof is enough to convince a reasonable person

without any special medical knowledge.



9. Types of lawsuits seeking damages: • Wrongful death: loss of normal life expectancy from overt act or negligence (usually failure to

diagnose). • Wrongful life: successful suits brought against providers who extended life with heroic

measures, ignoring advance directives (e.g. someone already terminal). o What is NOT wrongful life: NOT the case for birth of normal, healthy infant (tubal

ligation recanalized & woman got pregnant) — this is held to be uniformly a joyful occurrence for which plaintiff should be grateful.

• Loss of Chance: o This is a newer type of way to determine and calculate damages o Previously, traditional litigation required proof of more than 50% negligence causing the

patient’s death – and then damages are calculated based on the life expectancy of the individual from the point of premature death

o Now, many states are using “loss of chance” – meaning that the delayed/incorrect diagnosis or incorrect treatment resulted in the patient NEVER being able to recover even if someone else took over the case

o Calculations of damages are “proportional” Example: patient had a 45% chance of survival at time provider should have

diagnosed the cancer; by the time the cancer was accurately diagnosed, the chances of survival dropped to 20%; the difference of 25% is multiplied by the amount that would have been awarded for the patient’s full life expectancy

See more on DAMAGES below 10. Multiple Suits: one act can give rise to more than one claim (e.g. wrongful death plus survival statute.

• Survival statute: personal representative recovers damages to which the deceased would have been entitled had he lived. Awards go to the decedent's estate.

• Wrongful death statute: pecuniary damages the survivor suffers due to loss of the deceased (e.g. spousal companionship, wages, etc.).



11. Damages: plaintiff must show proof of injuries sustained. • may use evidence of prior good health or functionality as compared to post-treatment

condition. • financial compensation linked to functionality, assumed lifespan remaining and amount of

income this individual could generate. • actual damages include: past and future physical pain & suffering, past and future mental

pain & suffering, disfigurement, medical expenses, loss of employment benefits other than wages, lost wages from work, impairment of the ability to earn or to work in the future, loss of a normal life expectancy.

• The official statutory South Carolina definitions are:

'Damages' means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, another theory of damages, including, but not limited to, fear of loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. Damages does not include punitive damages.

'Fault' means an act or omission of a person which is a proximate cause of injury or death to another person, damages to property, tangible or intangible, or economic injury including, but not limited to, negligence, malpractice, strict liability, absolute liability, or failure to warn. Fault does not include a tort resulting from an act or omission committed with a specific intent to cause injury or damage to another or to property.

'Person' means an individual, corporation, company, association, firm, partnership, society, joint stock company, or other entity, including a governmental entity or unincorporated association of persons.

• South Carolina code of laws: http://www.scstatehouse.gov/code/statmast.php • South Carolina medical malpractice: http://www.scstatehouse.gov/code/t15c079.php • South Carolina – monetary judgments for noneconomic damages:

http://www.scstatehouse.gov/code/t15c032.php • South Carolina – limitations on civil actions: http://www.scstatehouse.gov/code/t15c003.php

http://www.scstatehouse.gov/code/statmast.php

http://www.scstatehouse.gov/code/t15c079.php





12. Non-Medical Liability: these are intentional torts.

• Battery: infliction of unlawful, unauthorized violence on the person of another, irrespective of its degree. Example: patient consents for one procedure, but another procedure is performed.

• Tort of Outrage: intentional infliction of mental distress, intolerable in a civilized community ("outrageous" behavior).

• Premises Liability: the patient is an invitee onto your premises. You must consider age, general condition of patient and provide adequate facilities. Example: no large mirrors, use handrails on walls, no loose carpet or slippery waxed floors.

13. Shared liability (for other provider's actions):

• Shared Office Space & Partners: you are responsible for your partner's actions. Sometimes this means just sharing office space: if the jury believes that a "reasonable person" would think a partnership existed an "ostensible partnership." Sometimes notices are placed on patient information sheets, disclaiming partnership relationships with others in the same office suite or building. Or explanations regarding "call coverage" may be made to patients.

• Referrals: in South Carolina, you are not liable for the actions of another provider after you have referred the case for clinical management. This also applies to consultations and practice coverage (temporary substitute providers).

• New changes in SC law: the “joint and several liability” (“shared liability”) no longer applies in this state.

14. Provider duty to others (people who aren't your patient):

• normally, the provider's duty is only to the actual patient. • in most states, if a patient is found to have an infectious disease, the clinician must warn the

patient and also "identifiable persons at risk." • example would be a patient with TB, warning immediate household contacts.

15. Failure to adequately control pain: state legislation that provides either penalties or corrective action for providers NOT prescribing adequate pain medication. This legislation is called IPTA (Intractable Pain Treatment Acts) and includes: • Protection for provider: safe harbor for those writing large amounts of prescriptions for pain as

long as complying with accepted standards of pain management. • Guidelines: immunity from discipline for prescribing of large amounts of narcotics

1) patient must not have a chemical dependency 2) patient is not using drugs for non-therapeutic purposes 3) provider must keep appropriate records 4) provider must refrain from writing false prescriptions 5) prescribe in a manner consistent with state & federal laws 6) do not divert drugs for own use.



16. Expert Witnesses: • Both the standard of care and the breach of standard is usually determined by expert testimony

(unless the matter is of common knowledge to a layperson). • Differing from state to state

o Some states require the expert to be a specialist in that area, other states do not o Would always have to prove sufficient knowledge and training for the specialty of the

defendant. o There have been cases of orthopedists being barred from providing expert testimony

against podiatrists since they are not in that specialty area • Expert testifies NOT a matter of preference of treatment, but a departure from acceptable medial

standards, as followed by ordinary, prudent practitioners in the defendant's field of practice. • South Carolina: expert witnesses are now specified by criteria in statutory law as follows in

SECTION 15-36-100 at http://www.scstatehouse.gov/code/t15c036.php (A) As used in this section, 'expert witness' means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:

(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and

(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or

(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;

(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or

(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion;

(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert's credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert's credentials pursuant to subsection (E).




17. STATUTORY IMMUNITY:

• Good Samaritan Laws: o this is limited immunity for emergency care. o It must be free (no charge). o It must be without gross negligence of wanton or willful misconduct. o You are supposed to get permission from the injured party before proceeding.

• Sovereign Immunity: varies by state o In most states, the state/county/city claims sovereign immunity o Statutes limit the states liability and the liability of its employees o If these laws are in place, an employee can't be sued if working for a government entity o Sometimes this extends to a charitable entity (as long as the only compensation was salary paid

by the government or the charitable entity) • Special in South Carolina: can't be sued if working for a government entity, or for a

charitable entity (as long as the only compensation was salary paid by the government or the charitable entity)

• Reporting Immunity:

o Reporting physical disability that disqualifies a pilot (immune from liability) • Peer Review Documents:

o Confidential and not admissible as evidence as public documents



18. Possible Legal DEFENSES of the DEFENDANT (this means YOU): • General denial — places burden on plaintiff to prove damages, proximate cause, & breach of

standard of care. (“I didn’t do it!”) • Comparative (contributory) negligence: the plaintiff may recover damages even if he was negligent

in following medical advice, as long as his negligence is not greater than that of the defendant (WHO HAS MORE NEGLIGENCE – you or the patient?)

• Assumption of risk: plaintiff signed consent acknowledging risk and agreed to proceed with treatment as outlined despite these risks.

• Statute of Limitations (adult plaintiffs): o For South Carolina, malpractice suit must be brought within 3 years from the date of

"treatment, omission, or operation giving rise to the cause of action or 3 years from the date of discovery or when it reasonably ought to have been discovered, not to exceed 6 years from the date of occurrence." This includes a "discovery period" during which records and depositions are obtained to determine the viability of a suit or possibility of wrongdoing. Discovery period starts to run when a person of common knowledge and experience would notice that the facts & circumstances of an injury would result in a possible claim against the defendant. See: http://www.scstatehouse.gov/code/t15c003.php

• Statute of Limitations (minor plaintiffs): o For South Carolina, if injured party is < 18 y/o at time of malpractice, minor has 7 more years

unless during that time he becomes 18 y/o, after which he has 1 additional year to file (age 19 y/o). (Example: child 2 y/o has 3 years + 7 years = can file until age 12 y/o). Can file claim as adults even if their parents are dead. If complete records & information are not obtained during discovery, the statutory period continues to be in force (you can still be sued if you held back information during the original discovery period). See: http://www.scstatehouse.gov/code/t15c003.php

• Product liability: blame the product (gauze pad, cardiac stent) • The Discovery Period:

o The "discovery period" is a timeframe during which records and depositions are obtained to determine the viability of a suit or possibility of wrongdoing.

o Definition: Discovery period starts to run when a person of common knowledge and experience would notice that the facts & circumstances of an injury would result in a possible claim against the defendant.

19. Countersuit & Frivolous Lawsuits:

• provider may countersue if he perceives malicious prosecution. • this means you've been sued without probable cause (you would probably get a summary

judgment to dismiss in this case), there was malice in instituting proceedings, and again must prove injury or damage.

• very hard to do this, usually not successful





20. Electronic Medical Records (EMR): • Patient access to EMR (also called electronic health records, EHR) is the next “push” • Both the providers AND the patients will have access – record will be as accurate as possible • Note that this means the patient will be automatically READING everything you write in “real time”

(i.e. as soon as you write it) 21. Personal Health Records (PHR): • patient maintaining health records that are accessible to the patient and anyone else the patient

authorizes • Types:

o internet based o on persona computer (PC) o on portable device o medical record storage

• issues are PRIVACY o HIPAA compliant? does NOT guarantee privacy o HIPAA covered – DOES guarantee privacy (entities that must comply with HIPAA regulations)

• Medicare (CMS) is piloting PHRs in many states • Dept. of Health & Human Services (DHHS) information for professionals on the HIPAA privacy law

and records privacy correlates: https://www.hhs.gov/hipaa/for-professionals/index.html and https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/healthit/phrs.pdf

https://www.hhs.gov/hipaa/for-professionals/index.html

https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/special/healthit/phrs.pdf



TRADITIONAL TYPES OF TORT REFORM: From: Mello, MM, Studdert, SM, Kachalia, A. The Medical Liability Climate and Prospects for Reform. JAMA 2014;312(20):2146-2155. doi:10.1001/jama.2014.10705. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/25358122




NONTRADITIONAL TYPES OF TORT REFORM: From: Mello, MM, Studdert, SM, Kachalia, A. The Medical Liability Climate and Prospects for Reform. JAMA 2014;312(20):2146-2155. doi:10.1001/jama.2014.10705. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/25358122




DO TORT REFORMS AFFECT STANDARD OF CARE OR LIABILITY LAWSUITS?

• Mixed results in the literature • See AMA report (2016): http://journalofethics.ama-assn.org/2016/03/pfor6-1603.html • Report on effects of SC reforms (2015):


• Some studies show no change in practice patterns (Waxman, et al, The Effect of Malpractice Reform on Emergency Department Care, N Engl J Med 2014;371:1518-25. Retrieved from http://www.nejm.org/doi/full/10.1056/NEJMsa1313308

• Others do show improvement in both patient outcomes and medical liability actions o AHRQ has had numerous pilot/demonstration studies o See main page: http://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-

resources/resources/liability/

Project Main Focus Selected Preliminary Results Ascension Health Prevent Harm

Through Best Practices

The project reported a 48% drop in birth injuries caused by difficulties in delivery due to the baby's shoulder becoming lodged behind the mother's pubic bone, a 49% increase in the reporting of serious safety events, and a 57% reduction in the rate of actual and potential obstetric malpractice claims.

Fairview Health Services

Prevent Harm Through Best

Practices

The average number of adverse events per 10,000 infant deliveries in participating hospitals was 556 in the first quarter of 2008, and fell to 471 in the fourth quarter of 2012. By contrast, in the comparison hospitals, the figures were 500 and 487, respectively.

New York State Unified Court System

Alternative Methods of Dispute Resolution

The project resulted in a 50% or greater reduction in average time to resolve malpractice claims when compared to a historical baseline for New York City. Claims were resolved in a median of 370 days across courts in Manhattan, Brooklyn, and the Bronx, compared to a historical median of 718 days, 952 days, and 1,266 days, respectively.

University of Illinois at Chicago

Improve Communication

In earlier work, the UIC medical center showed notable improvements in malpractice outcomes and adverse event reporting (including reductions of approximately 50% in both the number of claims and the costs per claim, and an 82% increase in incident reporting). Similar trends were observed at select replication sites, although the impact was not as large.

University of Texas Improve Communication

Based on 62 interviews conducted using a debriefing method developed through the grant, the results suggest that patients and their families can be key observers to an adverse event that happens to them and could provide critical insights about what took place that are not otherwise known to those analyzing the event.

Massachusetts State Department of Health


Primary care practices provided positive feedback to exit interviews, focusing largely on the value of interventions such as receiving coaching advice and participating in a learning network

http://journalofethics.ama-assn.org/2016/03/pfor6-1603.html



http://www.nejm.org/doi/full/10.1056/NEJMsa1313308

http://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/liability/

http://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/liability/



of other primary care practices. Potential adverse events in practices that implemented the intervention declined by almost 70% after participation in the project.

University of Washington


Successful implementation and sustainment of a communication and resolution program is dependent on many factors, and will not be possible without an executive leadership commitment in an organization. This project encountered challenges operating this program outside of a self-insured hospital system, i.e., where two or more insurers were involved. Several preconditions were suggested to overcome this challenge that were not present at the test sites.