10/9/2013

1

So, You Are Being Sued!

My Happy Place

My Public

Happy Speaking

Place

Are not in the same time zone

So, You Are Being Sued!(What You Did Not Learn In School)

Karen Blossom PA-C MSPAS

Urgent Care Provider

Malpractice Lawsuit Survivor

10/9/2013

2

What Did You Learn In School?

• It is not a matter of if, but when

• A little bit about Medical malpractice

insurance

• That you never want to go there

A Few Fun Facts

• Average duration of a lawsuit: 3.6 years

• Average number of years in practice: 15.1

years

• Average Plaintiff award: $211,000

• Female providers have higher Plaintiff

awards than males

• Physician Assistant’s are sued less

frequently the MD’s and/ or ANP’s

Definition

• Medical malpractice is professional

negligence by act or omission by a health

care provider, in which care provided

deviates from accepted standards of

practice in the medical community and

causes injury or death to the patient.

10/9/2013

3

Medical Malpractice

• 4 criteria that must be met.

• All must be proven to the extent it is more

likely than not

1. Duty

2. Breech

3. Proximate Cause

4. Damages

Duty

• Provider must have a duty to treat the

patient

• This is established as a result of the

doctor-patient relationship

• Perform to the established standard of

care

Breach

• Care was not in compliance with the good and acceptable medical practice for your specialty

• Failure to meet the standard of care

• The courts determine standard of care through expert testimony

• Guidelines defining expert testimony vary from state to state

10/9/2013

4

Proximate Care

• A causative element which, in a natural and

continuous sequence, unbroken by an

intervening event, produces injury, without

which the injury would not have occurred

• Your care, either actions or inactions, were

a contributing factor to the ultimate injury

Damages

There are two types of damages: Economic and Non-economic

• Economic damages are monetary

• Lost wages

• Medical bills

• Non-economic damages are subjective

• Pain and suffering

• Loss of companionship

Damages

• Statistically, most providers will experience a bad outcome

• A bad outcome does not mean you committed negligence

• Only a small percentage of providers actually commit legally defined medical malpractice

10/9/2013

5

Malpractice Insurance: The Basics

• Claims Made: Coverage for claims that arise during

the policy period. If the lawsuit occurs after

employment is terminated you are not covered -

thus the need to “but a tail”

• Tail Coverage: A type of supplemental coverage

available when your claims-made policy is

canceled or non-renewed

• Prior Acts: A type of supplemental coverage that

covers any claims that may arise when your

claims-made policy is cancelled or non-renewed

Malpractice Insurance: The Basics

Occurrence: Covers any lawsuit that may

arise during, and in the future, if the

occurrence was within the policy period

Hammer Clause

• Stipulates that if you choose to not settle

against the advise of your carrier and

attorney, you are liable for the monetary

difference between what the case would

have settled for and the ultimate damage

award, if greater than the proposed

settlement

10/9/2013

6

Physician Assistant Malpractice Statics

2003-2012

• Nationwide - 1295 PA's were reported as having had payments made by malpractice insurance providers

• 2003-2012: Arizona - 57

(Data from the National Provider Data Bank)

Most Common Non-Physician

Allegations

• Lack of adequate supervision

• Untimely referral to a consultant

• Failure to diagnosis properly

• Inadequate examination

• Negligent misrepresentation

You Have Been Served

• Being “served” may come out of the blue

• Sometimes, there is a harbinger

• Other times, there is a known bad outcome

• Statue of limitations for being served:

• 2 years and 75 days

• Exception pediatric patients

10/9/2013

7

Reaction To Being Served

Another Possible Reaction

Review Your Malpractice Policy

• What are the coverage limits?

• Will you be assigned a lawyer?

• Can you refuse to settle?

• Is there a “hammer clause”

10/9/2013

8

• Do not talk to any one (seriously?) except

your lawyer, spouse, supervising Physician

and the therapist you are going to have to

start seeing really soon

• Do not alter or destroy any records

• And, do not

Here Come The Lawyers

Addressing The Complaint

• Review of all available patient records with

you attorney

• Discussions on the merits of the case

• Attorney starts filing motions with the court

• A motion is a legal procedure that brings a

contested matter before the court for a

decision

Discovery

• All parties have an opportunity to

investigate the merits of the other side's

legal and factual position

• Precise factual statement about the facts of

a litigation which can be used at trial as

affirmative evidence

• This includes depositions (oral questions

and verbal responses taken under oath)

10/9/2013

9

Discovery For The Defendant

• Quiet time

• Not much happening

• Might almost forget it is happening

• EXCEPT FOR THE MAIL!!!!!!

Deposition

• Attorneys for both sides are present and

participate in examination and cross-

examination

• Listen to your lawyer

• Remain calm

• Read it carefully

• Correct any mistakes

• You have the right to be present for any

and/ or all other depositions

Expert Witnesses

• You will be sent copies of all witness testimony for your review and signature

• The plaintiff's expert witnesses will say you did not provide the expected standard of care

• Your expert witnesses will affirm that you did provide the expected standard of care

10/9/2013

10

More on Expert Witnesses

• Qualifications vary state to state

• Some require active practice in the same specialty

• Others states simply require a license to practice

• Arizona requires they be licensed in the same profession as the defendant and maintain board certification in the same specialty

Offers To Settle

• Offers to settle may be made by the

defendant at any time during the process

• This will most likely be left in the hands of

your attorney and insurance underwriter

• A case may be settled any time up to the

point at which the jury reaches a verdict

A Settlement is

Always a Loss for

the Provider

10/9/2013

11

Should You Settle?

• This may be entirely in the hands of your

malpractice insurance underwriter

• The case may be indefensible

• The award at trial may be more that your

policy covers (putting personal assets at risk)

• The case would be over (but not the fall out)

• 80% of the time juries find for the provider

• Over 90% of medical malpractice lawsuits

settle out of court, and for good reasons:

• Neither side wants to go to court

• It is expensive

• It is time consuming

Should You Settle?

Alternatives To Trial For Resolution

• Negotiation

• Mediation

• Arbitration

• Pretrial Screening Panel

10/9/2013

12

Negotiation

• Most frequently used

• Two or more parties confer in good faith to settle

• Settling parties have more control than other methods

• More successful if there is emotional distance

• Dispassionate perspective is not common in malpractice cases

Mediation

• Similar to negotiation but, uses a neutral

third party

• Less costly that litigation

• Parties have more control

• No judge to impose the decision

Arbitration

• Parties agree to submit the dispute to an

arbitrator or arbitration panel

• Each side presents evidence and a

determination is made

• Faster, less costly and more private than a

jury trial

• Can be binding but, is sometime open to

appeal

10/9/2013

13

Pretrial Screening Panel

• Developed specifically for medical

malpractice cases

• Many states have panels that review all

medical malpractice cases for merit before

a suit is filed

• The process is non-binding and the Plaintiff

can still litigate

Trial

So It Is Over!

10/9/2013

14

The Fallout

National Practitioner Data Base (NPDB)

• A computerized information system that

contains records of malpractice claims,

privileges actions, and other disciplinary

actions. It was created to ensure that

incompetent health care professionals do

not move from one state to another

NPDB• A federal data bank created to serve as a repository of

information about health care providers in the United

States

• The Medicare and Medicaid Patient and Program

Protection Act of 1987 led to the creation of the NPDB, a

data tracking system designed to protect program

beneficiaries from unfit health care practitioners. The

NPDB was implemented September 1990, and requires

reporting of adverse licensure, hospital privilege and

professional society actions against physicians and dentists

related to quality of care. In addition, the NPDB tracks

malpractice payments made for all health care practitioners

10/9/2013

15

What Does That Mean?

• Typically when a provider applies for malpractice insurance, hospital privileges and insurance credentialing, some further explanation will be required to explain the “YES” answer to the “Have you ever” question

• It is best to divulge that you have been reported to the NPDB before you are asked

Those “Have You Ever” Questions

• Have you ever been named in a

malpractice lawsuit?

• Have you be convicted of a felony?

• Are you an ax murderer?

No, We Are Not Finished Yet

10/9/2013

16

Medical Board Investigation

• The report to the NPDB subsequently provokes

an investigation by the Arizona State Board of

Medical Examiners (more mail box trauma)

• This may take several months at which time you

will be asked to interview or it will be dismissed

• If you are asked to interview there may be an

“adverse action”, which is again reported to the

NPDB

Adverse Action

• An action taken against a practitioner's clinical privileges or medical staff membership in a health care entity

-OR-

• A licensure disciplinary action, which reduces, restricts, suspends, revokes or denies clinical privileges or membership in a health care entity

Coping

• Remember, you will survive

• Establish a support system (that therapist

mentioned earlier)

• Maintain a positive attitude

• Do not self medicate

• Be physically active

• Keep breathing

10/9/2013

17

Summary

?Questions?

Bibliography

• Edvard Munch (Norwegian, 1863-1944). The Scream. Pastel on board, 1895. © 2012 The Munch Museum/The Munch-Ellingsen Group/Artists Rights Society (ARS), New York.

• Brenner, I. R. (2010) All about Experts, in How to Survive a Medical Malpractice Lawsuit: The Physician's Road Map for Success, John Wiley & Sons, Ltd, Chichester, West Sussex, UK. doi: 10.1002/9781119967323

• http://www.npdb-hipdb.hrsa.gov/ National Practitioner Data Bank assessed 9/10/2013

• http://www.angelfire.com/tx/yuccaflat/atomic-photos.html accessed 9/16/2013

• http://www.istockphoto.com/stock-illustration-16095023-bluebird-crashing-laptop.php?st=52b050b

• http://www.istockphoto.com/stock-illustration-25388355-walking-emoticon.php?st=f405ecf

• http://www.gbmedlaw.com/Stages_of_a_Case.html

• http://www.lawfirms.com/resources/medical-malpractice/medical-negligence-lawsuits/length-process.htm

• http://www.practicelink.com/magazine/featured/surviving-the-malpractice-storm-2/

• http://www.physicianlitigationstress.org/

• Medical Malpractice: How To Prevent and Survive a Suit edited by Richard J. Nasca md, Lee A. Whitehurst, md, jd, Louise B. Andrew, md, jd, facep, ...www.pohly.com/books/medicalmalpracticehow.html

• http://jucm.com/magazine/issues/2013/0913/