The Malpractice Lawsuit:
Process and Prevention
Process and Prevention
Advocate Health Care
7
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thAnnual Advocate Trauma Symposium
Wyndham Lisle - Chicago No ember 18 2010
November 18, 2010 Rogelio Lasso Rogelio Lasso
BACKGROUND
▪ I teach law at JMLS in Chicago.
▸ specialties litigation med mal and products liability law
▸ specialties litigation, med mal, and products liability law
▸ I co-author a Treatise on Illinois Tort Law ▪ Prior to teaching, I practiced law in Chicagog, p g
▸ for several years, representing physicians and hospitals
in Medical Malpractice law suits.
▸ was also briefly part of the Risk Management Team at a
couple of local hospitals.
▪ I will share with you some information about the processI will share with you some information about the process and prevention of Medical Malpractice lawsuits.
▸ We will conduct a mock deposition of a physician
▸ We will have a panel discussion on malpractice with two
prominent lawyers, one who specializes in defending health care providers and one who specializes in suing health care care providers and one who specializes in suing health care providers.
INTRODUCTION
The professional life of the trauma and acute care
id i
l
th
t f i k
provider involves the management of risk.
Almost all of the patients you care for are at risk for loss
of life or limb
of life or limb.
You are also the ones called when things are not going
well for the care of the patients in other practice areas
well for the care of the patients in other practice areas.
Bad outcomes are often inevitable despite early and
effective care.
effective care.
The Trauma and Acute Care specialty is also error
prone and you can anticipate an irreducible rate of
bad outcomes that are the result of your mistakes and
those of your colleagues.
▪ Dr. Michael Sise, Clinical Professor of Surgery and Medical Director of Trauma Services at UCSD Scripps Mercy Hospital in San Diego
Surveys of health care providers regarding
malpractice law suits show three things:
▪ Most providers are concerned about being sued;
▪ Most providers are concerned about being sued;
Th
t b
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l i k
▪ Those concerns are not based on actual risks
regarding malpractice suits;
▪ Those concerns are not relieved by most tort
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reform efforts, particularly the recently overturned
caps on non-economic damages in Illinois.
FEW PEOPLE INJURED BY PROVIDERS SUE
▪ Most people who are injured as a result of malpractice do not sue – Only 4 % - 7% of those injured bring a law suitOnly 4 % - 7% of those injured bring a law suit
– the same percentage as in the 1980s.
– The few cases where malpractice is clear are quickly settled, often prior to or soon after the suit is filed
prior to or soon after the suit is filed.
▸ Of the cases filed, MOST are resolved in terms favorable to the health care provided
M t di i d ith id i thi
– Most cases are dismissed with provider paying nothing – some b/c P abandons the case or lawyer is incompetent – many after discovery with the provider paying nothing
– b/c P’s expert could not prove malpractice – a few a settled for nuisance value
– a business decision by the insurer and often over the objectionsa business decision by the insurer and often over the objections of the provider
– Very few dismissed as frivolous
affidavit requirement stops most frivolous suits – affidavit requirement stops most frivolous suits
– only about 5-8% of cases filed actually make it to trial
POOR COMMUNICATION, NOT MALPRACTICE, IS BASIS FOR MOST LAW SUITS
▪ There is a good deal of malpractice in the health care field ▪ There is a good deal of malpractice in the health care field.
▸ Estimates regarding number of yearly deaths from
Malpractice at American Hospitals hover around 200,000 ▪ BUT, many people who sue do not sue because of a bad , y p p outcome or malpractice
– They sue because of
– Poor communication among providers;
– Poor communications b/w providers and patients; Poor doctor/patient relationships
– Poor doctor/patient relationships
▪ If malpractice or bad outcomes are not the basis of most law suits, then most law suits are preventable, p
PREVENTING MALPRACTICE LAW SUITS - PART I
D l d i ti d t ith ti t d
Develop good communication and rapport with patients and family
▸ Spend as much time on your contact with patient and Spe d as uc t e o you co tact t pat e t a d
family as you do managing the patient’s medical problem
▸ Maintain a good flow of information to the patient and
f il family
– Make sure that colleagues treating the patient know what
you have communicated, and you have communicated, and
– Suggest they also maintain good communication with
patient and family
▪ Study what successful hospitals are doing
▸ e.g. University of Michigan’s prevention program, which incl des q ick disclos re and compensation has res lted in includes quick disclosure and compensation has resulted in significant reduction of law suits and a 61% decline in legal costs
PREVENTING MALPRACTICE LAW SUITS - PART II
▪ When complications happen (even if due to medical error) ▸ Discuss the event with the patient and her family
– Explain (in lay person’s terms) p ( y p )
– what happened and why you believe it happened
– if there was medical error, admit it calmly and dispassionately (not defensively) and tell patient and family
(not defensively), and tell patient and family – what is being done to manage the event
– be honest, sincere, and, above show empathy ... not sympathy! k l d h th ti t d f il t f l
– acknowledge how the patient and family must feel – not how you feel!
– Help the family focus on what can be done to help the patient’s recovery
▸ If the complication was due to medical error,
– Have a plan for how to quickly compensate the patientp q y p p
▸ Dispassionately and calmly document in the chart (a) what happened; (b) your plans for management; (c) what you told the patient and family
DEALING WITH THE MALPRACTICE LAW SUIT - PART I O i f th M l ti Liti ti P
▪ Overview of the Malpractice Litigation Process
▸ Process that may take several years.
▸ Usually starts with Letter of intent to sue ▸ Soon followed by a Complaint
– Your attorney will respond to the Complaint by – answering it with a denial of malpractice oranswering it with a denial of malpractice, or – Seeking a dismissal of the law suit
▸ Discovery
– The process of
– (a) developing the facts in preparation for trial or settlement – Involves interrogatories and depositionsg p
– Medical records are obtained prior to the suit – (b) of choosing expert witnesses
depositions of experts – depositions of experts
DEALING WITH THE MALPRACTICE LAW SUIT - PART II
▪ After receiving an attorney’s letter of Intent to Sue ▸ Notify your insurer & Open your own file
▸ Make sure records are not lost, or altered
▸ Discuss claim ONLY with your attorney and insurery y ▸ Do not talk to the patient or family about claim
▸ If still caring for the patient,
– continue to do so as dispassionately as possible – continue to do so as dispassionately as possible – If possible, transfer the case to a colleague
– with careful notes
– do not discuss the claim with colleague
▪ Develop a Good Working Relationship with Your Attorney ▸ You must work as a team
– S/he knows the law – you know the medicine. ▪ Dealing with Discovery
▸ Testifying in court is traumatic but ▸ Testifying in court is traumatic but
– 95% of cases never reach trial
THE DEPOSITION
THE DEPOSITION
▪ Provide opposing lawyers opportunity to meet
and become familiar with testimony of key
witnesses
▪ Are sworn statements with a record kept by a
court reporter
▸
the testimony can be used later at trial for
impeachment purposes.
▪ All questions asked must be answered, even if
they cover irrelevant matters which will not be
y
allowed at trial
SIMULATION
Deposition of Dr. Hamilton in the case of Rosado v Hamilton, MD
▪In the suit (based on a case in another state) Mr Rosado claims that the doctor was ▪In the suit (based on a case in another state) Mr. Rosado claims that the doctor was negligent in the surgery performed on his left knee and that the doctor did not
properly obtain his consent for the surgery to his right leg.
Mr. Rosado was brought to the E/R after falling off a fence. He was examined in the g g E/R by an orthopaedic surgery resident, who diagnosed Mr. Rosado with a left
patellar tendon rupture and a right thigh hematoma. The resident ordered x-rays that confirmed these diagnoses, no further imaging tests were ordered. Mr. Rosado was admitted to the hospital for pain control and was scheduled for surgery the next was admitted to the hospital for pain control and was scheduled for surgery the next day.
The orthopaedic resident obtained Mr. Rosado’s consent for the surgery to his left knee in the early afternoon on the day of the surgery, and he was taken to the y y g y,
operating room at around 8:00pm. According to Dr, Hamilton, the attending
orthopaedic surgeon, she reviewed the chart and x-ray and found an injury that the resident missed-the right torn quadriceps. Dr. Hamilton states that Mr. Rosado
verbally consented to surgery on his right leg Instead of completing a new consent verbally consented to surgery on his right leg. Instead of completing a new consent form, the attending added an addendum to the original consent and initialed it. Mr. Rosado is alleging that he never had an injury to his right leg, and that when the surgeon first began operating on him, the surgeon cut the wrong leg. In order to cover this mistake up, the attending fabricated the documentation of the “missed quadriceps” tear.”
