PRESENTATION TOGRAND ROUNDS

SEPTEMBER 30, 2009

Timothy J. Ryan, MBA, JD, FACHE

Senior Vice President/Associate General Counsel

Physician Network Development

And Practice Management

COVER 3 SUBJECTS

1. Describe Medical Malpractice

2. Describe the Anatomy of a Lawsuit

3. Discuss Some Risk Management Basics

MALPRACTICE

Malpractice is a tort of negligence which requires 4 elements:1. Duty2. Breach of Duty3. Damages4. Causation

DUTY

When does Duty commence?

Accepting a person as a patient Undertaking to examine or treat a

patient An agreement to be on-call

DUTY(CONT’D)

What Duty is owed?

Health Care professionals have a duty to exercise the same degree of skillexercised by others in the same profession or specialty of ordinarylearning, judgment or skill under the same or similar circumstances.

BREACH

Established by expert testimony.Expert must specialize in the samespecialty as defendant. “More likelythan not” standard.

DAMAGES

Plaintiff must prove that chance to obtain a better result must be greater than 50%.

A finding of liability does not necessitate damages

Cannot obtain damages for emotional distress without a finding of some objective physical consequence.

ECONOMIC DAMAGES

Lost wages Medical expenses Replacement services Attendant care expenses

NON-ECONOMIC DAMAGES

Denial of social pleasure Pain and suffering Loss of companionship Punitive damages not allowed unless

defendant acted maliciously Since 1994, Michigan has cap on non-

economic damages $400,000 $700,000

Loss of limb Impaired cognition Loss of reproductive capacity

CAUSATION

Plaintiff must establish, through expert testimony, that “but for” defendant’s negligence, plaintiff’s injury would not have occurred.

Opportunity to survive or obtain better result, plaintiff must show there was greater than a 50% chance of survival or better result.

ANATOMY OF A MEDICAL MALPRACTICE LAWSUIT

1. File complaint – must be “reasonably specific”

Must have affidavit of merit signed by an expert

2. Answer complaint Defenses

Denial Statute of Limitations (2 years) Governmental Immunity Comparative Negligence – plaintiff’s failure

to comply, reduces award

DISCOVERY

Medical Records Interrogatories Depositions Requests to Admit Motion Practice

CASE EVALUATION

Trial

MALPRACTICE INSURANCE- GENERALLY

1. Limits• Per claim• Annual aggregate

2. Occurrence vs. Claims Made• Gaps

RISK MANAGEMENT

Four C’s

Compassion

Communication

Competence

Charting

Three A’s

Accessibility

Affability

Ability