Litigation & Medicine...

Why We Win or Lose a Case

Presented by

Catherine Walberg, JDVice President & General Counsel

KaMMCO

Claims by the Numbers

Claim FrequencyClaims filed by year per 100 insureds

Year 2009 2008 2007 2006 2005 2004 2003 2002

# Insureds 3,655 3,680 3,741 3,710 3,736 3,661 3,183 2,626

Claims filed

221 239 224 321 350 387 315 228

Claim FrequencyClaims Inventory (Open Claims)

Year 2009 2008 2007 2006 2005 2004 2003 2002

Year End Total (last 8 years)

461 471 547 692 718 763 537 414

Year 2009 2008

4th Qtr 3rd Qtr 2nd Qtr 1st Qtr 4th Qtr 3rd Qtr 2nd Qtr 1st Qtr

End of Qtr Total (last 8 quarters)

461 469 482 479 471 535 542 563

Average Paid Indemnity on Claims Closed by Year(only includes claims which had an indemnity payment)

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

$141,684.52 $106,594.83 $109,167.99 $106,594.83 $100,845.79 $129,805.70 $117,463.30 $103,631.67 $114,651.32 $142,021.35

$0

$20,000

$40,000

$60,000

$80,000

$100,000

$120,000

$140,000

$160,000

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Average Paid Expenses on Claims Closed by Year

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

$19,697.09 $16,971.20 $17,565.10 $10,408.89 $20,336.05 14,329.72 $18,313.67 $17,910.06 23,414.20 $25,793.84

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Percent of Claims Closed with Indemnity Payment

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

24.22% 25.89% 25.25% 13.77% 11.11% 16.71% 15.65% 22.13% 18.93% 23.58%

31/128 29/112 41/163 23/167 21/189 61/365 57/364 81/366 60/317 54/232

Average Number of Months to Close by Year

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

20.62 19.93 22.05 25.24 25.94 24.80 25.56 23.27 26.29 24.78

0

5

10

15

20

25

30

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

KaMMCO Plan Trial Results (By Year)

  KaMMCO Plan Total

  Wins Losses Mistrials Win % Wins Losses Mistrials Win % Wins Losses Mistrials Win %

1991 1 0 0 100% 1 0 0 100% 2 0 0 100%

1992 0 0 0 n/a 0 1 0 0% 0 1 0 0%

1993 9 1 0 90% 3 1 0 75% 12 2 0 86%

1994 9 0 0 100% 1 0 0 100% 10 0 0 100%

1995 7 1 0 87% 1 1 0 50% 8 2 0 80%

1996 7 0 0 100% 1 1 0 50% 8 1 0 89%

1997 7 2 0 77% 0 0 0 n/a 7 2 0 78%

1998 12 5 0 71% 0 0 0 n/a 12 5 0 71%

1999 8 3 0 73% 0 0 0 n/a 8 3 0 73%

2000 6 2 0 75% 0 0 0 n/a 6 2 0 75%

2001 5 2 0 71% 0 0 0 n/a 5 2 0 71%

2002 8 1 0 89% 1 0 0 100% 9 1 0 90%

2003 2 1 0 67% 3 1 0 75% 5 2 0 71%

2004 15 6 0 71% 3 1 0 75% 18 7 0 72%

2005 14 3 1 82% 0 0 0 n/a 14 3 1 82%

2006 12 1 0 92% 4 0 0 100% 16 1 0 94%

2007 17 3 1 85% 4 2 0 67% 21 5 1 81%

2008 14 1 0 93% 3 0 0 100% 17 1 0 94%

2009 21 4 1 84% 3 0 0 100% 24 4 1 86%

TOTALS 174 36 3 83% 28 8 0 78% 202 44 3 82%

Case Studies

Case #1 – “Remembering Your Rationale” Facts

Obese patient. Surgery over a decade ago. Severe back pain. Informed consent discussion with patient

occurred; delivered pamphlets.

Case #1 – “Remembering Your Rationale”

Facts Plaintiff opted for decompression of L-3 and L-4. During surgery, defendant physician had to

manipulate the nerve roots. Defendant physician anticipated the plaintiff

would have some nerve damage as a result of the surgery.

Case #1 – “Remembering Your Rationale”

Facts Post-surgery, the plaintiff suffered right leg

numbness and weakness from neurologist. Defendant physician obtained a consult. Consulting physician did thorough history and

exam which was well documented. He agreed physical therapy was appropriate.

Case #1 – “Remembering Your Rationale”

Facts One month later, two hematomas were discovered

and evacuated. Consistency of the hematomas indicated they had

been there for an extended period of time. Plaintiff continued to suffer from right leg

weakness, and eventually leg paralysis until unrelated death two years later.

Case #1 – “Remembering Your Rationale”

Initial Assessment Strengths

Good informed consent before surgery. Good operative note done timely.

Weaknesses Plaintiff had significant postoperative deficits. Plaintiff’s experts were critical of the fact that no

MRI was done as part of the postoperative evaluation.

Case #1 – “Remembering Your Rationale”

Outcome – Defense verdict.

Case #1 – “Remembering Your Rationale”

Why We Won/Why We Lost Defendant Credibility

Awoke with compromised movement, suggesting nerve damage.

Not a sudden dramatic loss of function that would have indicated hematoma.

Drains had been installed, yet no blood/fluid accumulation.

Reasonable to believe surgically induced root trauma—a known complication.

Case #1 – “Remembering Your Rationale”

Why We Won/Why We Lost (Cont.)

Documentation Timely; detailed: “Patient’s past medical history included a barely

recalled surgical procedure on the lumbar spine 30 years ago where a cyst was excised. This had extensive consequences regarding her present problems. . . .

Case #1 – “Remembering Your Rationale”

Why We Won/Why We Lost (Cont.)

Documentation “L-4 lamina was virtually impossible to separate

from the dura. The dura and periosteum seemed to be an absolute confluent structure with no evidence of ligamentous tissue consisting of ligamentum flavum within the canal. Neither was there any epidural fat. It appeared as if the patient had a previous laminectomy for this excision and resulting bone growth has led to reconnection of the lamina and complete dense adhesions of the dura directly to the bone. . . .

Case #1 – “Remembering Your Rationale”

Why We Won/Why We Lost (Cont.)

Documentation “Nerve root inspection yielded normal nerve roots,

but a great deal of nerve root manipulation was necessary in order to mobilize the dura and produce a closure of the dura.”

Case #1 – “Remembering Your Rationale”

Why We Won/Why We Lost Informed Consent

Extended discussion/pamphlets. Timely Handling of Complication

Consult; post-operative problems promptly and thoroughly investigated and documented.

Case #2 – “He Said, She Said”

Facts Plaintiff admitted to hospital with early labor. Delivery of fetal head occurred spontaneously

without episiotomy. When difficulty was encountered with delivery of

the shoulders, shoulder dystocia was diagnosed. The delivery was complicated and protracted. Fetal Apgar scores were 6-8-8. Infant diagnosed with Erb’s palsy.

Case #2 – “He Said, She Said”

Facts According to the defendant physician’s delivery

note: “[w]e had to give traction, and eventually the

anterior shoulder emerged. Then, we delivered the posterior shoulder. Once the posterior shoulder was delivered, the anterior shoulder was delivered; and the baby’s umbilical cord was clamped and cut.”

Case #2 – “He Said, She Said”

Initial Assessment Strengths

Poor compliance by patient. Weaknesses

Poor documentation. Family members’ testimony.

Case #2 – “He Said, She Said”

Settled.

Case #2 – “He Said, She Said”

Why We Won/Why We Lost Doctor had no recollection of event. Documentation.

No record of: Direction to patient to reposition legs. McRoberts maneuver; Woods maneuver; or, Application of suprapubic pressure.

Defense experts could not determine techniques used to assist delivery.

Case #2 – “He Said, She Said”

Why We Won/Why We Lost Dr. claimed he did all these techniques, but

no record: His nurse said he never uses suprapubic pressure.

Dr. denied use of forceps.

Case #2 – “He Said, She Said”

Why We Won/Why We Lost Plaintiff’s Position:

Family said: He used forceps. Lots of force. Pulled baby’s head “many times” and last pull moved

mom on table.

Case #2 – “He Said, She Said”

Why We Won/Why We Lost Plaintiff’s Position:

Family said: Never told mom to move legs. Never pressed on abdomen. Dr. looked “perplexed.”

Case #2 – “He Said, She Said”

Why We Won/Why We Lost

Plaintiff’s Position: Plaintiff’s expert:

Injury consistent with forceps use.

Subsequent treater: Baby’s nerves “completely torn in two—the worst

injury he’d ever seen to brachial plexus.”

Case #2 – “He Said, She Said”

What Helps Us Defend You: Timely recognition of complication and

attentiveness to reasonable resolution of complication.

Frequent, express communication with other physicians and staff.

Case #2 – “He Said, She Said”

What Helps Us Defend You: Documentation explaining what you did

and why, including options considered—especially in high-risk cases or situations.

Having an informed consent discussion with the patient and documenting the same.

Case #2 – “He Said, She Said”

What Helps Us Defend You: Avoiding critical or careless remarks or

documentation about your peers or staff. Sticking together during litigation (joint

defense).

Case #2 – “He Said, She Said”

What Helps Us Defend You: Remembering throughout litigation that

you are a good doctor, ARNP, or physician assistant who is well trained and who makes reasonable decisions in the face of incomplete information and rushed timelines.

Questions & Answers