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 1
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) 2
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? 3
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 4
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 5
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 Be nice Ways to Minimize Your Chance of Being Sued 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? 6