• No results found

Medical Malpractice: What You Don t Know Can Hurt You

N/A
N/A
Protected

Academic year: 2021

Share "Medical Malpractice: What You Don t Know Can Hurt You"

Copied!
78
0
0

Loading.... (view fulltext now)

Full text

(1)

Medical Malpractice: What You

Don’t Know Can Hurt You

O. William Brown, MD, JD

Chief, Division of Vascular Surgery William Beaumont Hospital

Interim Chief, Division of Vascular Surgery Wayne State University School of Medicine

Clinical Professor of Surgery

Wayne State University School of Medicine Adjunct Professor of Law

(2)
(3)

Components of malpractice suit

 Physician-Patient Relationship  Breach of the Standard of Care  Proximate Cause

(4)

Physician Patient

Relationship

(5)

Physician Patient Relationship

 Direct patient contact  Phone call

 Social setting

 Side-walk consult ?  Payment unimportant

(6)

 Guest at party asks vascular surgeon if 3

month history of leg swelling is significant

 Surgeon states swelling unlikely to be

significant but suggests that individual see her medical physician

 Individual does not see her medical

physician and suffers a PE one week later and dies

(7)

Was a physician patient

relationship established?

(8)

The law is what the judge

and the jury say it is

(9)

How Terminate Relationship

 Get fired

 Physician withdraws from care after giving

sufficient notice to patient

(10)
(11)

Breach of Duty

(Standard of Care)

 Expert witness

 Defendant’s admission

 Res ipsa loquitor (sponge in the

abdomen)

 Plaintiff is a medical expert

 Common knowledge (radiation of a

(12)

“The existence of a medical

injury shall not create any

(13)

“The failure of a health care

provider to order, perform,

(14)

Standard of Care

 National standard

 “Locality” rule only for hospital equipment  Standard of care is different for a resident

or fellow

 Standard of care is the same for a general

surgeon and a vascular surgeon performing a vascular procedure

(15)

Proximate Cause

 Patient dies on first post operative night

following an open AAA resection

 At autopsy, retained sponge is found

 No recovery for retained sponge since it

(16)
(17)

Informed Consent

 Diagnosis

 Treatment plan

 Risks and benefits

 Treatment alternatives

(18)

Informed Consent

Must tell patient anything that could affect patients decision whether or not to proceed with treatment

(19)

Medical Malpractice

Informed consent is NOT the same thing

as a consent form

 Obtaining informed consent is a non

(20)

Cases

 Johnson v Kokemoor (individual MD experience

and results)

 Open versus Endovascular

-Standard of Care for isolated 2cm common iliac stenosis

-Standard of Care for AAA in 75 yr. Old male with “perfect anatomy” for

(21)

Medical Records

 Anything written in preparation for

litigation is privileged.

 Can not give records or discuss patient’s

condition with anyone unless you have patient’s written permission. (This includes patient’s attorney or another defense

(22)

Medical Records

 “The Paper Trail”

 If you don’t write it down, it didn’t happen  Take the time to write down your thought

(23)

Expert Witness

This is the single greatest problem in medical malpractice

(24)

Expert witness in Florida

 Must specialize in the same specialty as

defendant or

 Specialize in similar specialty treating

similar patients

 However last line of expert witness statute

states:

(25)

“This section does not limit

the power of the trial court

(26)
(27)

Medical Malpractice

Are Vascular Surgeons who have completed the certifying process through the

American Board of Surgery “Board Certified”?

(28)

Medical Malpractice

Are Vascular Surgeons who have completed the certifying process through the

American Board of Surgery “Board Certified”?

(29)

Medical Malpractice

Are Vascular Surgeons who have completed the certifying process through the

American Board of Surgery “Board Certified”?

(30)

Malpractice Defenses

 Reasonably prudent physician  Error in judgment

 Assumption of the risk

(31)

Good Samaritan Acts

 Roadside

 In hospital (Grodin v. Beaumont)  In OR

(32)
(33)

Joint and Several Liability

 Hospital Sponsored Insurance  Joint defense with the hospital  Pitfalls

(34)

Statute of Limitations

 Fraudulent concealment  Wrongful death

(35)

Conduct of a Medical

Malpractice Suit

 Complaint (Notice of Intent)  Discovery

-interrogatories

(36)

Discovery deposition

 “Nail down” defendant’s opinions  Witness evaluation

(37)

Relevant

 Anything that tends to make a material

(38)

Witness investigation

 Google search  Curriculum vitae  Past depositions

 Past legal problems (medical and non

(39)

Attorney: “Now doctor, isn’t it true that

when a person dies in his sleep, he doesn’t know about it until the next morning?”

(40)
(41)

Attorney: “So the date of conception (of the baby) was August 8th?”

(42)

Attorney: “So the date of conception (of the baby) was August 8th?”

(43)

Attorney: “So the date of conception (of the baby) was August 8th?”

Witness: “Yes.”

(44)

Attorney: “So the date of conception (of the baby) was August 8th?”

Witness: “Yes.”

Attorney: “And what were you doing at that time”

(45)
(46)

Attorney: “You were not shot in the fracas?”

(47)

Attorney: “You were not shot in the fracas?”

(48)

Attorney: “You were not shot in the fracas?”

Witness: “No, I was shot midway between the naval and the fracas.

(49)
(50)

Attorney: “Are you qualified to give a urine specimen?”

(51)

Attorney: “Are you qualified to give a urine specimen?”

(52)

Attorney: “Are you qualified to give a urine specimen?”

Witness: “I have been since early childhood.”

(53)
(54)

Attorney: “Doctor, how many autopsies have you performed on dead

(55)

Attorney: “Doctor, how many autopsies have you performed on dead people?”

(56)

Attorney: “Doctor, how many autopsies have you performed on dead people?”

(57)

Attorney: “Doctor, how many autopsies have you performed on dead people?”

Witness: “All of my autopsies are

(58)

Attorney: “Doctor, before you performed the autopsy, did you check for a pulse?”

Witness: “No”

Attorney: “Did you check for blood pressure?”

(59)

Attorney: “Did you check for breathing?” Witness: “No”

Attorney: “So, it is possible that the patient was alive when you began the autopsy?”

(60)

Attorney: “How can you be so sure, Doctor?”

Witness: “Because his brain was sitting on my desk in a jar.”

Attorney: “But could the patient have still been alive nevertheless?”

(61)

Witness: “It is possible that he could have been alive and practicing law

(62)

Deposition Testimony

 Maintain composure

 Answer only direct questions

 Answer only the question that is asked  Never try to educate the plaintiff’s

attorney

(63)

Lack of concentration

can be fatal

(64)

Conduct of Medical

Malpractice Suit

 Case evaluation

 Settlement conference  Trial

(65)
(66)

Medical Malpractice

Can I sue the plaintiff’s attorney for filing a frivolous law suit?

(67)

Medical Malpractice

 In general the answer is No.  Exceptions

1. Malicious prosecution

2. Law suits filed in violation of court rules.

(68)
(69)
(70)
(71)

Medical Malpractice

If I settle the case, am I admitting that I committed malpractice?

(72)

Medical Malpractice

If I settle the case, am I admitting that I committed malpractice?

(73)

Medical Malpractice

If I settle the case, am I admitting that I committed malpractice?

(74)

Settling a Case (Advantages)

 No loss of time going to trial

 No risk of excess personal liability  No admission of liability

(75)

Medical Malpractice

(76)

Medical Malpractice

(77)

Medical Malpractice

 Know how to avoid obvious risk

 Understand basic legal concepts of a

medical malpractice suit

 Know when to “hold’em and when to

fold’em

and

(78)

Medical Malpractice

Document Document Document

Document Document Document

References

Related documents

How to measure characteristics of society, the social fabric, social norms, social capital, social impact, social change, interactions, systemic risks, institutional con-

Ben Schepf (cousin of Jason & Shannon Frugia) Nolan Shepherd (friend of Charis & Jon Outlaw) Blake Singleton (son of Mike & Charlotte Singleton) Jacob Vogel (grandson

For case-control studies with sample sizes of R2000, the mpMAF is expected to be <5% (at least for the dominant model), suggesting that targeting rare SNPs in large studies might

56 Therefore, nonsubscribers are vulnerable to premises liability claims by employees because (1) they owe a heightened duty of care based on the condition of the

Winnemucca threads the foreign incursion through these practices. This move also disrupts the teleological progress narrative of contemporaneous white army wives' narratives,

With recent federal funding to launch a new national training program in “Infectious Disease-Food Safety- Public Policy”, we are even more positioned to provide further curricular

When the expected return of a unit of money measured in next period’s utility units is the same as the value of a unit of money measured in current utility units (i.e E t t+1 R M t+1

undo wlan forwarding-policy policy-name 【缺省情况】 不存在无线转发策略。 【视图】 系统视图 【缺省用户角色】 network-admin 【参数】