Medical Malpractice and Risk Management — Part I of II

By Jonathan Siff, MD, MBA, FACEP

Director of Clinical Informatics, The MetroHealth System; Director, Emergency Informatics, Assistant Operations Director, Department of Emergency Medicine, MetroHealth Medical Center; and Associate Professor, Case Western Reserve University School of Medicine, Cleveland, Ohio

Part II will appear in December 2010 and will address risk management.

Most emergency physicians will be sued during their career.1 Lawsuits can lead to interpersonal difficulties, loss of job satisfaction, and emotional distress.1,2 An understanding of the malpractice process and ways to reduce risk can help emergency physicians deal with this ever present threat.

Malpractice Lawsuits

Medical malpractice lawsuits generally are brought against physicians under civil tort law. A tort is essentially harmful, wrong conduct by one entity against another. Patients can sue health care providers under various torts. These torts include medical malpractice, personal injury, product liability, defamation (libel or slander), infliction of emotional distress, invasion of privacy, and breach of confidentiality. Plaintiffs must establish four essential elements of the malpractice claim: duty, breach of that duty, causation, and damages. As cases work their way through the legal process, eventually they are dropped or dismissed, settled, or decided in court.

Types of Suits

The two most common types of suits brought against physicians are battery and negligence. Battery involves actions done to the patient that were not approved by the patient. This may occur when informed consent has been obtained but the patient believes the procedure performed is not the procedure agreed upon or was not done by the agreed upon provider.3 Negligence is the most common type of suit against physicians. A physician can be sued for negligence for many reasons (See Table 1.)

Table 1. Types of Neglect

  • Failure to diagnose
  • Improper performance of procedure
  • Improper management of treatment
  • Delay in diagnosis
  • Delay in treatment or procedure
  • Failure to consult
  • Acts or omissions that cause or aggravate a patient's illness or injury

Source: Jonathan Siff, MD, MBA, FACEP, Cleveland, OH.

Who Can Be Named in a Lawsuit

In general, anyone whose name appears on the chart can be named in a lawsuit. This includes attending physicians, advanced practice nurses, physician assistants, residents, students, nurses, and anyone else on the health care team. A common misconception among residents is that they will not be named or involved in a lawsuit because they are under the direction of an attending physician. In one review of malpractice claims at a large teaching institution, residents and fellows represented 46% of physicians named in ED claims.4

Elements of a Tort

There are four elements of a tort that a plaintiff must establish.5 First, that the defendant owed a duty to the patient. In the emergency department, particularly in light of the EMTALA regulations, it is safe to say that this element is relatively easy for the patient to establish. Second, it must be shown that the duty was not met by a failure to meet the standard of care. The standard of care can be defined as how a physician of ordinary skill, care, and diligence with similar training in a given situation would have evaluated and treated the patient.6 It is important to understand that mistakes can be made without practicing below the standard of care. The key determinant of the standard of care is if the provider acted reasonably under the circumstances, not if a mistake was made.7

The standard of care in each case ultimately is determined by a judge or jury after hearing the testimony of expert witnesses. Each side will employ experts to testify as to the appropriateness and reasonableness of the treatment, or lack thereof, provided the patient based on their opinion of the standard of care for that condition or situation. Then the jury will decide which expert's version is best. In some states, the expert must be certified or practicing the same specialty as the defendant.8 In other states, the expert may have to meet minimal requirements, usually licensure in the state where the case is being heard and some clinical practice requirement, to give testimony.9 In recent years some specialty societies and medical groups have begun to call for action against or sanction members who provide misleading or inaccurate expert testimony.8,10 In addition to the testimony of experts, hospital policies and written guidelines potentially may be used as evidence of the standard of care.7 In rare cases the negligence may not require expert testimony to establish the standard of care. The exception to the requirement for expert testimony is the "doctrine of common knowledge," which is referred to as res ipsa loquitur or "the thing speaks for itself." Generally, this is applied to cases where a layperson can determine an error was made such as when instruments are left in a patient after surgery.6

The next element of a tort requires plaintiffs to show they suffered injury or damages, which may include loss of ability to earn income, loss of consortium with a significant other, future medical expenses, pain and suffering, and emotional distress.11 Finally, the plaintiff must prove that the breach of the standard of care was the cause of the injury and damages. This means that the plaintiff must show a connection between the failure to meet the duty owed (standard of care) and the event (injury or damages) which occurred.5 The law refers to this as "proximate cause." In most cases if the outcome would have been the same regardless of the actions of the defendant, there is no proximate cause. Another way to look at this concept is that if the adverse outcome would not have happened "but for" the actions of the provider then the provider may be liable. In evaluating proximate cause the jury must look at two scenarios: What should have happened with appropriate care as opposed to what did happen with the allegedly negligent care and the difference between them in terms of lost life, lost income, or other causally related damages.

Burden of Proof

To win their case, plaintiffs must meet the burden of proof that their reasoning and version of events is more plausible. This standard for civil cases, which is called a "preponderance of the evidence," means that if plaintiffs seem to be 51 percent correct the judgment would be for them.8 This is unlike criminal trials where the proof must be "beyond a reasonable doubt." An exception in many states to the preponderance of the evidence rule is called the "loss of chance doctrine." This doctrine allows the recovery of damages for the destruction or reduction of prospects for achieving a more favorable outcome, even in cases where the patient would have had a 50 percent or lower chance of cure or more favorable outcome prior to the negligence.12 Under the traditional rule if patients have a 50 percent or lower chance of survival or more favorable outcome even if no negligence occurred, then they would not be entitled to collect any damages since the negligence did not cause the majority of the damage. However, under loss of chance, if patients would have had a better chance to live with proper treatment, they can be compensated for the opportunity that was lost. For example, if a patient with a severe form of cancer who received "proper" treatment would have had a 30 percent chance to live but lost that chance due to a delayed diagnosis or other negligence, he or she may be able to collect 30 percent of the damages that might have been awarded if the negligence could have been proved to cause at least 51 percent of the damage. This greatly expands the legal risk to providers.

Statute of Limitations

The statute of limitations is the length of time after the injury was discovered or the doctor patient relationship was terminated that a lawsuit can be brought. This varies among the states but two years is a common length.13 A suit may be bought long after the care was rendered in cases where the plaintiff did not discover the injury immediately, such as a retained foreign body. In the case of minors or other individuals who are unable to assert their rights due to disability, the statute of limitations may not start until the disability is removed. In many states this means when a child reaches the age of majority or the patient recovers.11 Families are not barred from filing suit on behalf of these individuals at any time prior to the expiration of the statute of limitations. In cases where fraud or concealment exists on the part of the provider, such as altering the medical record, the time period to file a lawsuit may be extended.

Defense theories

Several defenses are used by physicians when defending a malpractice suit (see Table 2).

Table 2. Malpractice Defenses

  • Absence of one of the four required elements
  • Statute of limitations has expired
  • Contributory or comparative negligence—the patient was partially responsible for his/her own damages
  • Injury worsened by a later negligent provider
  • Assumption of risk—patient knew the risks and agreed to proceed and one of the known risks occurred

Source: Jonathan Siff, MD, MBA, FACEP, Cleveland, OH.

The Legal Process

Once a physician is named in a lawsuit there are some actions that should and should not be taken (see Table 3). Some specialty societies, hospitals and medical associations offer non-legal guidance and counseling to providers during the long judicial process.14

Table 3. Dos and Don'ts When Named in a Malpractice Suit

Do

  • Call your attorney, hospital risk manager, or malpractice carrier immediately.
  • Make a copy of the document and send the original to the appropriate person (in previous bullet)
  • Remain calm—you are not alone
  • Participate in the selection of expert witnesses
  • Check to be certain your CV (which the plaintiff likely will request) is accurate, up-to-date, and contains no stretching of the truth
  • Tell your attorney everything

Don't

  • Discuss the case with anyone other than your attorney, spouse, or mental health counselor. Discussions with coworkers and friends are not privileged; these people could be called to testify in the case.
  • Alter the medical record; however, you may make a clearly dated addendum with the advice of your attorney when appropriate.
  • Contact the patient and "try to work it out."
  • Speak to plaintiffs attorneys without your attorney present.
  • Be impatient; the legal process is a slow one.

Source: Jonathan Siff, MD, MBA, FACEP, Cleveland, OH. Based on references 1, 16 and 17.

The legal journey begins with a summons from the court, which is the official notice of a lawsuit. As soon as you receive this notice you should meet with your hospital or group lawyers or malpractice carrier. Your attorney will guide you through the discovery process. During discovery, information is gathered by both sides in support of their case. In some cases, the physician will be required to give a deposition, which is a discussion under oath in which the plaintiff's attorney asks questions to obtain information to use against the provider at trial. Cases are never won, but can certainly be lost, at deposition. Finally, should the case not be dropped, dismissed, or settled (the majority of cases never go to trial), then the case would go to court for a trial. Data from the Physicians Insurers Association of America showed that 65 percent of claims were dropped, dismissed, or withdrawn, 25.7 percent were settled, 4.5 percent were finalized by an alternate dispute mechanism, and 5 percent were resolved by trial. In cases going to trial, the provider prevailed 90 percent of the time.15

This legal process can take several years to complete and cause great frustration and difficulty for providers.

When Payment Is Made to Plaintiff

The National Practitioner Data Bank (NPDB) was created in 1986 as a data repository for malpractice judgments. When a physician loses or settles a case, the insurer is required to report this to the NPDB. In addition, disciplinary actions related to provider competence and resignation or the surrender of privileges in return for the discontinuation of an investigation against the provider are reported.18 Physicians may dispute the report and may write brief statements describing their side of the story, which will be seen by anyone accessing the information. The data currently are not open to the public. Among the groups able to access the database are hospitals, nursing homes, state medical boards, HMOs, and professional societies. Providers may review their own information.

Malpractice Insurance

Malpractice insurance should be carried by all ED physicians, and most will obtain coverage through their employer or contract company. There are two basic types of malpractice insurance; occurrence-based and claims-made.19 Occurrence-based provides coverage for any act that occurs during the period of coverage regardless of when the lawsuit was brought. Claims-made polices cover the provider, for claims filed during the policy period, based on care that occurred after a specified past date and the end date of the policy. This specified past date is referred to as the "retroactive date" in malpractice policies.19 When the policy ends the coverage ends as well. For physicians with a claims-made policy, it is imperative to obtain "tail coverage" which will cover claims on acts that occurred while the original policy was in effect that may be filed in the future. Another key element to malpractice insurance is the amount of coverage provided. Most policies have a lifetime limit and a per event limit. An example of a common policy is a "1:3" policy. This indicates a $1 million limit per claim and a $3 million limit for the provider's total coverage. Occurrence-based insurance is preferable but usually more costly and in some cases unavailable.

The information and suggestions in this article are general rules and not applicable to every patient or situation. These suggestions do not constitute a standard of care but are the opinion of the author.

References

1. Syzek T, et al. ACEP Medical Legal Committee. So You Have Been Sued! Available at www.acep.org/workarea/downloadasset.aspx?id=8986. Accessed Oct. 10, 2010.

2. Martin CA, et al. Physicians' psychological reactions to malpractice litigation. South Med J 1991;84:1300-1304.

3. Kern S. Malpractice consult: Battery redefined. Med Econ 2007;84:30.

4. Bisaillon D. Overview of emergency department claims. Forum July 1997;18:3-5.

5. Yale-New Haven Hospital & Yale University School of Medicine. Overview of the Legal System. In: Risk Management Handbook. Available at www.med.yale.edu/caim/risk/handbook/rmh_legal_system.html. Accessed March 12, 2008.

6. Franklin C, et al. Medical professional liability: Physician's guide to professional negligence claims. Resid Staff Physician [Serial Online]. 2007;53. Available at www.hcplive.com/publications/Resident-and-Staff/2007/2007-07/2007-07_03. Acessed Oct. 13, 2010.

7. Sullivan W. Standard of care: Does it exist in every malpractice case? ED Legal Letter 2003;14:133-144.

8. American Academy of Pediatrics Committee on Medical Liability. Guidelines for expert witness testimony in medical malpractice litigation. Pediatrics 2000;109:974-979.

9. American Osteopathic Association. Policy Statement: Expert Witness. 2005. Available at www.do-online.org/pdf/cal_hod05memores309ff.pdf. Accessed April 10, 2008.

10. Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001)

11. Kuhn W. Malpractice and Emergency Medicine. Available at www.mcg.edu/som/clerkships/EM/PracticeIssues/Malpractice%20and%20Emergency%20Medicine.pdf . Accessed Oct. 12, 2010.

12. Weigand TA. Loss of chance in medical malpractice: A look at recent developments. Defense Counsel J. 2003;70:301.

13. National Conference of State Legislatures. State Medical Liability Laws 2007. Available at www.ncsl.org/standcomm/sclaw/StateMedliablitylaws2007.htm. Accessed April 10, 2008.

14. The American College of Emergency Physicians offers Litigation Stress Counseling to ACEP members through the Wellness Section and Medical Legal Committee. Contact the College for a referral. www.acep.org

15. Physicians Insurers Association of America. Claim Trend Analysis 2009 Edition. Rockville, MD; Physicians Insurers Association of America; 2009.

16. Henry GL. Risk management and high-risk issues in emergency medicine. Emerg Med Clin North Am 1993;11:905-22.

17. Legal considerations. In: Weinstock MB, Longstreth R, eds. Bouncebacks! Emergency Department Cases: ED Returns. Columbus, OH: Anadem Publishing; 2006.

18. Glauser, J. The national practitioner data bank: What is it and why it was established [Legal Notes: Part II in a Series]. Emergency Medicine News 2001;23:12,14-15.

19. Key C. Maintaining professional liability insurance coverage: Basics for the careful shopper. Health Lawyer. October 1999;12:23-7.