CURRENT ISSUES IN OBSTETRICAL

MALPRACTICE LITIGATIONSpencer L. Studwell, Esq.

Associate VP for Risk Management University of Rochester Medical Center

Quick Refresher

To prevail in a malpractice lawsuit, the injured patient must prove that: the practitioner owed the patient a duty of care; the practitioner breached the duty; the breach caused the alleged injuries; and that the patient sustained compensable damages

as a result.

Defendant has no legal obligation to prove anything

Plaintiff’ burden: prove case “beyond a preponderance of the evidence”; prove departure was “a contributing cause”.

Current State of NY Law Regarding “Experts”

Experts are necessary, but qualifications will vary Board Certification not required

Identity of expert not disclosed until trial Depositions of experts not allowed in state court

Experts cannot be cross examined based on medical literature unless they acknowledge the literature as “authoritative” evidence basis for opinions should be required, but is often ignored

Current State of NY Law Regarding “Experts”

Judges sometimes reluctant to limit causation testimony to evidence based medicine Daubert/Frye motions

Jurors decide. After hearing from

“Life care planners” are ubiquitous in obstetric malpractice cases.

Notable Legal Developments

Case law: upward pressure on value of pain and suffering awards

Tort reform Medical Indemnity Fund (“MIF”)

Revised regulations submitted for comment on April 20

First case where judge determined that child was qualified and the fund administrator said no.

Tort reform that may be discussed

Plaintiff’s wish list:

Revise statute of limitations re latent cancer cases to date of discovery

Revise law limiting contingency fees

Legislatively overrule Arons decision

Tort reform that may be discussed

Our wish list Expand MIF beyond OB to cover economic damages in all

cases involving neurologic injury

Cap on pain and suffering (limit TBD);

Change rules applicable to disclosure and deposition of experts and

Change the statute providing for 9% interest from date of verdict

National Benchmark Data – Annual Aon Report on Hospital and Physician Professional Liability

Aon Experience: 90,000 claims > $10 billion in incurred losses; 1200

facilities nationwide Includes reported losses from

alternative market (captives)

2015 Report Conclusions:

Frequency decreasing (-1%)

Average size of claims is increasing 2.0% annually

Year Severity Trend Index

2005 6.4%

2006 6.0%

2007 3.0%

2008 3.0%

2009 3.0%

2010 4.0%2011 3.0%2012 3.0%2013 2.7%2014 2.5%2015 2.0%

$ NEWYORKMASSACHUSETTS PENNSYLVANIA NEWJERSEY

WEST VIRGINIA NEW MEXICO

CONNECTICUTILLINOIS

MARYLAND RHODE ISLAND

Recent New York State Experience

New York State Malpractice Loss Experience 2015

Paid malpractice losses continued to be highest in the country.

Payouts in NY alone were greater than in the entire midwest.

Severity in NY 47% above the national average (Aon).

OB claims accounted for 12% of the paid losses.

New York State $711,718,250

Pennsylvania $374,018,550

USA $1,816,224,850

What’s continuing to drive costs?

Two primary drivers: economic and social inflation

Economic inflation: increasing cost of health care 130% over last ten years → increased cost of caring for individuals injured by

medical negligence → increased economic damages recoverable in

malpractice cases

Social Inflation

Rising jury awards for non-economic loss (“pain and suffering”)

jurors struggle to value another human being’s pain and suffering

definition of “fair value” continues to be revised upward

cultural references influence this phenomenon professional athletes entertainers

Damages Awarded in One OB Case

Future medical costs: $21,290,000 Future lost earnings: $13,000,000 (reduced to $3m/38 years) Past pain and suffering: $250,000 Future pain and suffering: $20,000,000 (reduced to $4m/67years) Durable medical equipment: $1,140,000 Assistive devices: $1,260,000 Prescription drug costs: $9,720,000 Skilled nursing, therapeutic and personal care expenses:

$145,000,000 (reduced to $25 million/67 years) Medical supplies: $920,000 Total: $212,580,000

Stakes are High

For both sides.

Nationally, fewer cases are being tried to verdict 11% twenty years ago 4% today

Cases are being settled despite the fact that defendants win 64% of cases tried

Exposure often dictates settlement

Why do people sue?

Disappointment Anger

Frustration Fear

Average OB Claim RatePre-Initiative (2000-2005) = 14.5Post-Initiative (2006-2014) = 8.7

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

MCIC Rate 17.4 18.0 15.6 13.9 9.4 12.9 13.2 8.9 13.4 6.7 11.4 8.7 6.7 5.4 4.3

Total Deliveries(per 10K) 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 1.9 2.0 2.1

Data as of 12/31/2015

PL Suits, Claims

Source: PSLP Primary Clinical Department, Denominators – Exposure data from Finance

FutureDevelopment

Anticipated

MCIC Academic Medical CentersOB Malpractice Claim Rate per 10K Deliveries

Chart1

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

Initiative

Series 1

Year of Alleged Injury

17.4087360203

17.9789540479

15.5779416346

13.8603696099

9.447331129

12.9065565307

13.249244793

8.9374901425

13.3889489675

6.6676924655

11.429758936

8.7358684481

6.670429473

5.4027504912

4.2504958912

Sheet1

Series 1

200017.4

200118.0

200215.6

200313.9

20049.4

200512.9

200613.2

20078.9

200813.4

20096.7

201011.4

20118.7

20126.7

20135.4

20144.3

OB Initiative Update

• Overview of the accomplishments of the OB Leadership Committee in the past year– Advancement of shared learning with increased transparency and case

review

– Creation of a data dashboard including compliance metrics

– Design of best practice for shoulder dystocia simulation

– Adoption of PQF fetal monitoring credentialing (FM-C) examination as an alternative to NCC examination for certificate of added specialty in Electronic Fetal Monitoring (C-EFM)

– Identification of strategies for fatigue and workload recognition and management, and recommendations for practice guidelines following on-call shifts for attending physicians

Current Strategies for Reducing the Risk of OB Malpractice Cases

Factors contributing to claims continue to include:

Documentation issues

Poor communication between members of the health care team

Poor communication with patients and families

Suboptimal interpersonal relationship between physician and patient

Common Documentation Problems that Contribute to Malpractice Losses

Failure to document appropriately

failure to communicate critical information effectively

failure to accurately describe the plan of management

documenting in a way that makes the provider an attractive “target” for cross examination critical of others reflecting lack of necessary knowledge, lack of

engagement

What defense lawyers are hoping to find

1. Notes explaining the plan of care, and who was involved in formulating the plan.

2. Notes explaining the diagnostic rationale, including differential diagnosis and what was done to rule out alternatives.

3. Documentation of history, observations, test results, imaging, etc that the providers relied on in making treatment recommendations.

4. Notes that have been proofread and edited prior to signing.

Use of Records in the Affirmative Defense of a Claim

Documents “what really happened”

Captures the rationale for care provided, or not provided

Highlights the coordination of care among professionals

Demonstrates the intelligence, skill and compassion of the involved practitioners - how much they care.

Significance of Chart At Trial Chart is single-most important piece of evidence

memories fade, but are preserved by the chart

contemporaneous and objective made at the time of treatment often made before “bad outcome” known; always

before the lawsuit was filed you are admittedly an interested witness - but “the

records don’t lie”

tangible jury takes chart into deliberation room key pages become poster-sized exhibits

Documentation Traps

Failing to record information relied on in making the plan. “If it’s not documented, how do we know it

happened. “

Perpetuating documentation errors by other caregivers

Cut and paste - “cloning” without engagement, failure to edit

Other Risks of EMRs

Dangers of “drop down” menus - round peg/square hole

Autofill & templates – failure to update info; carrying outdated info forward making it look like a condition continues and remains unresolved

Alert Fatigue

Metadata

OB Specific Documentation: Shoulder Dystocia

Three typical theories of liability:

Should have been able to predict

Enough risk factors present that mom should have been given the option of C/S

Brachial plexus injuries can only happen with excessive traction or improper/failure to perform indicated maneuvers.

Documentation of Shoulder Dystocia

To refute these claims, need to document both what you did and what you didn’t do, including:

The results of screening for gestational diabetes and recommendations given to diabetic gravida regarding diet and glycemic control

patient compliance with treatment recommendations

The best estimated fetal weight (clinical or ultrasound) should be noted on the labor admission physical examination. documentation confirms that the weight was assessed in consideration of delivery.

When and how the diagnosis of dystocia was made and the position of the head.

Each of the steps taken to resolve the dystocia, the order in which they were taken, and the results.

Amount of traction used after maneuvers to effect delivery.

Documenting Time in Shoulder Dystocia Cases

Time until resolution and delivery of infant’s body Time of delivery of the infant’s head

For each additional minute of delay between delivery of the head and the body, there is a decrease in the umbilical cord pH of 0.011.

7% risk to 23.5% risk of hypoxic-ischemic encephalopathy when the head-to-body delivery interval was 5min or greater.

Can you document everything?

No.

Listen to your instincts

Communication Strategies: with the healthcare team

Be wary of traditional hierarchy.

Pay attention to those who are less senior and less experienced.

Speak up – if you see something , say something

Communication Strategies: with patients and their families

It’s okay to apologize

Be present and answer questions

But understand that disclosure of adverse outcomes may be a multi step process

Importance of Building Relationships

Providers with good relationships get the benefit of the doubt.

Patients may not always understand the care, but they always know whether you care

Treat patients the way you would want yourself or your family to be treated.

With dignity, compassion, respect and honesty.

Why do it? Influencing the patient at the fork in the road Controlling your own destiny with regard to malpractice risk

The Perfect Storm

Adverse Outcome

Medical Error

Communication IssuesAngry Patient/Family

DocumentationErrors

LITIGATION

CURRENT ISSUES IN OBSTETRICAL�MALPRACTICE LITIGATIONQuick RefresherCurrent State of NY Law Regarding “Experts” Current State of NY Law Regarding “Experts” Notable Legal DevelopmentsTort reform that may be discussedTort reform that may be discussedNational Benchmark Data – Annual Aon Report on Hospital and Physician Professional Liability Slide Number 9Slide Number 10New York State Malpractice Loss Experience 2015What’s continuing to drive costs? �Social Inflation Damages Awarded in One OB CaseStakes are HighWhy do people sue? Slide Number 17OB Initiative UpdateCurrent Strategies for Reducing the Risk of OB Malpractice Cases Common Documentation Problems that Contribute to Malpractice LossesWhat defense lawyers are hoping to find�Use of Records in the Affirmative Defense of a ClaimSignificance of Chart At TrialDocumentation TrapsOther Risks of EMRs �OB Specific Documentation: Shoulder Dystocia Documentation of Shoulder Dystocia Documenting Time in Shoulder Dystocia Cases Can you document everything? Communication Strategies: with the healthcare teamCommunication Strategies: with patients and their families Importance of Building RelationshipsThe Perfect Storm