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Understanding Medical Malpractice

Debbie Sullivan, PhD, PA-C

March 7, 2014

Objectives

• Discuss reasons why people sue

• Understand the 4 elements of medical malpractice

• Define standard of care

• Contrast claim vs. litigation

• Contrast settlement vs. trial

• Discuss ways to minimize chances of being sued

Why do People Sue?

• Anger: “didn’t listen to me…” • Variations: “didn’t answer questions” “wouldn’t return

my phone calls” “didn’t explain”

• Want answers

• Hold someone accountable for what happened (doctor should lose license; don’t want this to happen to someone else)

• Money

• Bad outcome

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Elements of Medical Malpractice

• Duty: Health care provider (HCP) owed a duty to the patient

• Breach of duty: HCP failed to act by the standard of care, and therefore, breached the duty owed to the patient

• Causation: the HCP’s breach of duty was the proximate cause of some harm

• Damages: HCP’s breach actually caused physical, emotional, economic or other damage

The 4 “Ds” of Medical Malpractice

• Duty

• Dereliction of duty

• Direct causation

• Damages

Duty

• There must be a recognized HCP-patient relationship in order for there to be a duty owed the patient

• If there is a relationship, then the HCP has the duty to meet the standard of care (SOC)

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Standard of Care

• What a reasonably competent, prudent HCP would do in the same or similar circumstances having the same or similar information• Same or similar background

• Same or similar location

Breach of Duty

• HCP failed to meet the SOC

• Usually requires expert testimony from an equally trained HCP to support that the SOC was not met• Written affidavit or statement

• Deposition and/or trial testimony

• Qualifications of expert vary by state

Causation

• Probably the most challenging aspect of medical malpractice

• Prove that the breach of duty/failure to meet SOC was the proximate cause of injury

• Complications or events as a natural course of a disease vs. failure to meet SOC

• The “but….for” question: But for the actions of the HCP, would this have occurred?

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Damages

• Economic:• Cost of medical care (past and future)

• Lost wages or earning capacity

• Non-economic:• Physical injury, disfigurement

• Emotional: “pain and suffering”

• Loss of…

• Punitive: wanton and reckless conduct

• Vulnerable adult: pattern of neglect

Claim vs Litigation

• Patient or legally authorized representative can make a claim directly against a hospital or HCP

• Patient may retain an attorney to make a claim on their behalf

• Attorney may file suit– Suit filed vs. served

• Can often resolve a claim at lower cost and avoid expense of litigation

• Statue of limitations

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Settlement vs. Trial

• Settlement = financial compensation

• 90% of claims and suits are resolved in the litigation process and never go to trial

• Often a business decision by the insurance carrier to settle a claim

• Some states have mandatory mediation in hopes of avoiding costly litigation

• Usually involves all parties reaching an agreement which is memorialized in a legal settlement document

Lawsuit Statistics

• Nearly 63% of cases brought are dropped or dismissed with no payout to the plaintiff

• About 30% of cases brought are settled with a payout to the plaintiff

• 5.4% of cases brought proceed to trial and result in a verdict for the defendant and no payout

• 1.3% of cases brought to trial result in a verdict for the plaintiff

Lawsuit Statistics

• Malpractice claims originate more than twice as often in hospitals as compared to ambulatory settings

• Within hospitals, over 1/3 of cases arise in OR setting

• Other high risk settings are obstetrics and emergency department

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Danger Zone for PAs

• Not consulting with supervising physician and/or failure to document physician’s involvement in patient’s care

• Not referring to a specialist, or not referring in a timely manner

• Not complying with state regulations

Ways to Minimize Your Chance of Being Sued

• Be nice

• Be professional

• Listen

• Know what you don’t know

• Involve your supervising physician

• Know the “red flags” for the discipline in which you practice and be cautious

• Document, document, document!!

Questions?