Medical Legal Aspects and Concerns of the Mid-Level Pratcioner

Medical/legal Considerations for Medical/legal Considerations for the Physician Assistant in the the Physician Assistant in the

Twenty-First CenturyTwenty-First Century

Objective: To create a better Objective: To create a better understanding of the understanding of the

litigious environment as it litigious environment as it relates to the physician relates to the physician

assistant practice in today’s assistant practice in today’s medical setting.medical setting.

OutlineOutline

History of malpracticeHistory of malpractice Responsibilities and riskResponsibilities and risk Why do lawsuits occur?Why do lawsuits occur? Who gets named and why?Who gets named and why? Risk management and discoveryRisk management and discovery Deposition and/or trialDeposition and/or trial Charting and the lawCharting and the law Self protectionSelf protection

““The first thing we do, let’s kill The first thing we do, let’s kill all the lawyersall the lawyers”.”.

William Shakespeare, Henry VIWilliam Shakespeare, Henry VI

HISTORY OF MEDICAL HISTORY OF MEDICAL MALPRACTICEMALPRACTICE

"There is a considerable body of Roman "There is a considerable body of Roman case law on the wrongful infliction of case law on the wrongful infliction of harm," said Thomas A. J. McGinn, Ph.D., harm," said Thomas A. J. McGinn, Ph.D., associate professor of Classics at associate professor of Classics at VanderbiltVanderbilt Univ.Univ.

P.A.’s have been practicing since the P.A.’s have been practicing since the 1960's and therefore, have been open to 1960's and therefore, have been open to lawsuits since their inceptionlawsuits since their inception

HISTORY OF MEDICAL HISTORY OF MEDICAL MALPRACTICEMALPRACTICE

Every physician [or P.A.], no matter how Every physician [or P.A.], no matter how competent, will eventually get sued”. competent, will eventually get sued”. Denton Cooley, M.D.Denton Cooley, M.D.

RESPONSIBILITIES AND RISKRESPONSIBILITIES AND RISK

Responsibility has only increased for P.A. Responsibility has only increased for P.A. practice throughout the countrypractice throughout the country

Risk for litigation has increased Risk for litigation has increased proportionately with responsibility as well as proportionately with responsibility as well as with the number of P.A.’swith the number of P.A.’s– 12,000 P.A.’s (1986)12,000 P.A.’s (1986)– 50,000+ P.A.s (2004)50,000+ P.A.s (2004)– 190,000,000 patient visits190,000,000 patient visits– All states allow P.A.’s prescriptive authority except All states allow P.A.’s prescriptive authority except

for Indiana and Ohio (2005)for Indiana and Ohio (2005)– 44% of ALL prescriptions written (in excess of 200 44% of ALL prescriptions written (in excess of 200

million)million)

HOW DOES THIS IMPACT OUR HOW DOES THIS IMPACT OUR PROFESSION?PROFESSION?

Chances are good to excellent that at Chances are good to excellent that at some point in your career, you will be some point in your career, you will be named as a primary or co-defendant in a named as a primary or co-defendant in a lawsuitlawsuit

WHY DO MEDICAL WHY DO MEDICAL MALPRACTICE LAWSUITS MALPRACTICE LAWSUITS

OCCUR?OCCUR?

Poor communication on behalf of the healthcare Poor communication on behalf of the healthcare providerprovider – Results in over 90% of medical lawsuits (ATLA)Results in over 90% of medical lawsuits (ATLA)

Unreasonable expectationsUnreasonable expectations – P.A. told me that this surgery was a “snap”P.A. told me that this surgery was a “snap”

Can also be under “poor communication”Can also be under “poor communication” – We got ALL “the cancer”We got ALL “the cancer”

also be under “poor communication”also be under “poor communication”

Misconception that ALL surgeries are successfulMisconception that ALL surgeries are successful ALL doctors/PAs tell the truth and are beyond ALL doctors/PAs tell the truth and are beyond

reproachreproach ALL medicines workALL medicines work


OCCUR?OCCUR?

““Vengeance is mine, sayeth the patient”Vengeance is mine, sayeth the patient” – I’ll teach that *#@%#!! doctor/P.A. a thing or twoI’ll teach that *#@%#!! doctor/P.A. a thing or two

Pure ignorancePure ignorance – People get sick and have bad outcomes (“stuff” People get sick and have bad outcomes (“stuff”

happens)happens)

““Gold Digging”Gold Digging”– People seeking monetary rewards under false People seeking monetary rewards under false

pretensespretenses


OCCUR?OCCUR?

True negligence on behalf of the doc/PATrue negligence on behalf of the doc/PA – ““Res ipsa loquitur”Res ipsa loquitur”

WHO GETS NAMED IN A WHO GETS NAMED IN A MEDICAL MALPRACTICE SUIT AND MEDICAL MALPRACTICE SUIT AND

WHY?WHY?

Everyone who came in contact with the patientEveryone who came in contact with the patient

I mean EVERYONE regardless of your I mean EVERYONE regardless of your level of involvement in the patient’s care level of involvement in the patient’s care (This mean’s YOU)(This mean’s YOU)– Include everyone (“but not limited to” Include everyone (“but not limited to”

hospital, physician, PA, RN, LPN, unit clerk, hospital, physician, PA, RN, LPN, unit clerk, phlebotomist, janitor, linen person, parking phlebotomist, janitor, linen person, parking attendantattendant and any agent, employee, or and any agent, employee, or contractor acting on behalf of the patient)contractor acting on behalf of the patient)


WHY?WHY?


WHY?WHY?

Theory of carpet bombing (B-52 style)Theory of carpet bombing (B-52 style)

THEORY OF CARPETTHEORY OF CARPET BOMBINGBOMBING

Everyone is named as a means of Everyone is named as a means of increasing information for the plaintiff’s increasing information for the plaintiff’s attorneyattorney

The more people named by the plaintiff’s The more people named by the plaintiff’s attorney, the greater the chances of attorney, the greater the chances of finding alleged negligencefinding alleged negligence

DEEP POCKET THEORYDEEP POCKET THEORY

Anyone who is insured under the Anyone who is insured under the hospital’s blanket or private plan is hospital’s blanket or private plan is potentially liablepotentially liable

Then systematically exclude people as Then systematically exclude people as the discovery process unfoldsthe discovery process unfolds

You may be dropped from the suit unless You may be dropped from the suit unless your fingers were “dirty” enoughyour fingers were “dirty” enough

THE RISK MANAGEMENT THE RISK MANAGEMENT INTERVIEW AND DISCOVERYINTERVIEW AND DISCOVERY

A lawsuit has already been filedA lawsuit has already been filed Defendants have already been namedDefendants have already been named Allegations have been listedAllegations have been listed You are already sitting in a potential hot You are already sitting in a potential hot

seatseat– You are asked to recall eventsYou are asked to recall events– You are asked to name namesYou are asked to name names– DID YOU DO IT or SEE IT DONE????DID YOU DO IT or SEE IT DONE????

Not to admit guilt or innocenceNot to admit guilt or innocence – Fact finding mission by in-house legal teamFact finding mission by in-house legal team

You’ll be allowed to review the medical You’ll be allowed to review the medical recordsrecords– If you go to deposition, this will come back If you go to deposition, this will come back

to help or haunt youto help or haunt you

SEATSEATTHETHE

DiscoveryDiscovery

What is Discovery?What is Discovery?– An ongoing process that begins with the An ongoing process that begins with the

plaintiffs complaint and the defendants plaintiffs complaint and the defendants response to the complaintresponse to the complaint You did itYou did it No I didn’t No I didn’t

DiscoveryDiscovery

InterrogatoriesInterrogatories (Plaintiff to Defense and (Plaintiff to Defense and reverse) to find weaknesses and reverse) to find weaknesses and strengthsstrengths– Who do you work for?Who do you work for?– How much malpractice insurance?How much malpractice insurance?– Education/certification/ meeting/journal Education/certification/ meeting/journal

books/CME/books/CME/

DiscoveryDiscovery

Request for productionRequest for production – ALL medical recordsALL medical records– Employment formsEmployment forms– Your resume’/C.V.Your resume’/C.V.– Variance (incident) reportVariance (incident) report– Work evaluationsWork evaluations– What is in your underwear drawerWhat is in your underwear drawer– Some forms (and underwear) require Some forms (and underwear) require

subpoenasubpoena

DiscoveryDiscovery

Expert witness reportsExpert witness reports – Plaintiff report blames defendant (deviation Plaintiff report blames defendant (deviation

from standard of care)from standard of care)– Defense report exonerates defendant (risk Defense report exonerates defendant (risk

and complication)and complication)

DEPOSITION TIMEDEPOSITION TIME

A deposition is testimony taken down in A deposition is testimony taken down in writing under oath (Merriam Webster)writing under oath (Merriam Webster)– Can be oral or videotaped, but will ALWAYS Can be oral or videotaped, but will ALWAYS

be transcribed by a court reporter taking be transcribed by a court reporter taking down your EVERY worddown your EVERY word


““It is better to be thought of as a fool than to It is better to be thought of as a fool than to open your mouth and remove all doubt”. open your mouth and remove all doubt”. A. LincolnA. Lincoln


If it is a “yes or no” question, answer If it is a “yes or no” question, answer ONLY yes or noONLY yes or no– NEVER embellish your statementsNEVER embellish your statements


ALWAYS allow the attorney to finish his/her question ALWAYS allow the attorney to finish his/her question before speakingbefore speaking

If you do not understand a question, have the attorney If you do not understand a question, have the attorney repeat or rephrase the questionrepeat or rephrase the question

ALWAYS keep to the facts but keep those facts easy ALWAYS keep to the facts but keep those facts easy for the jury to understandfor the jury to understand– A jury is never impressed with “big words”A jury is never impressed with “big words”

NEVER give your personal opinion unless asked for itNEVER give your personal opinion unless asked for it NEVER lie or “stretch” the truth (Remember, you are NEVER lie or “stretch” the truth (Remember, you are

under oath)under oath) ALWAYS pause for a few seconds before answering ALWAYS pause for a few seconds before answering

any question other than “what is your name”any question other than “what is your name” ALWAYS think about your answers (Remember ALWAYS think about your answers (Remember

Lincoln’s rule above Lincoln’s rule above ))


ALWAYS dress for ALWAYS dress for the part but NEVER the part but NEVER overdooverdo


NEVER guess at an answer...it is PERFECTLY NEVER guess at an answer...it is PERFECTLY acceptable to say “I do not recall”acceptable to say “I do not recall”

ALWAYS answer in a complete and coherent ALWAYS answer in a complete and coherent thoughtthought

NEVER guess at what is in the medical record: NEVER guess at what is in the medical record: if you need the chart, ASK FOR IT!!if you need the chart, ASK FOR IT!!

NEVER use “I think so”, “maybe”, “ALWAYS” NEVER use “I think so”, “maybe”, “ALWAYS” or “NEVER”. Remember, medicine is ALWAYS or “NEVER”. Remember, medicine is ALWAYS thought of as an “inexact science”thought of as an “inexact science”

NEVER argue with a lawyer!!!!!!!!!!!!!NEVER argue with a lawyer!!!!!!!!!!!!!


NEVER eat anything bigger than your NEVER eat anything bigger than your headhead

THE COURTROOMTHE COURTROOM

Everything that applies to the deposition Everything that applies to the deposition should apply to the courtroomshould apply to the courtroom

LOOK at the JURY, not at the attorneyLOOK at the JURY, not at the attorney Use graphic evidence that has been Use graphic evidence that has been

corroborated with YOUR attorneycorroborated with YOUR attorney Don’t ever use the opposing counsel’s Don’t ever use the opposing counsel’s

evidenceevidence Don’t ever get “chummy” with opposing Don’t ever get “chummy” with opposing

counsel or their expertscounsel or their experts


Dry mouth? Ask for water!!!!Dry mouth? Ask for water!!!!


The GOOD NEWS is that 85% of all The GOOD NEWS is that 85% of all medical malpractice cases in Delaware medical malpractice cases in Delaware result in a defense verdictresult in a defense verdict

““Illegitimi non carborundum”Illegitimi non carborundum”

CHARTING AND THE LAWCHARTING AND THE LAW

““As far as the effect on my practice and As far as the effect on my practice and my documentation, every note I make I my documentation, every note I make I picture blown up in front of a jury”. Karl picture blown up in front of a jury”. Karl Steinberg, M.D.Steinberg, M.D.

Accuracy is paramountAccuracy is paramount– The patient was numb from her toes downThe patient was numb from her toes down– Patient had waffles for breakfast and Patient had waffles for breakfast and

anorexia for lunchanorexia for lunch– The skin was moist and dry (thanks Melissa)The skin was moist and dry (thanks Melissa)


The entire medical record is a legal The entire medical record is a legal documentdocument … …THINK before you writeTHINK before you write

Try to avoid “late entries” or addendumsTry to avoid “late entries” or addendums – Your “immediate” recall vs. your “late entry” Your “immediate” recall vs. your “late entry”

recall may come into questionrecall may come into question As a result, the line of questioning by a good As a result, the line of questioning by a good

attorney will disqualify or discredit your entire attorney will disqualify or discredit your entire entry, accurate or not.entry, accurate or not.


ANY alterations in the medical record will ANY alterations in the medical record will be discoveredbe discovered– Result of alteration? YOU LOSE (Forensic Result of alteration? YOU LOSE (Forensic

computer analysis)computer analysis)


Is a charting “oops” acceptable?Is a charting “oops” acceptable?


Absolutely. Nobody’s perfect. Malpractice is Absolutely. Nobody’s perfect. Malpractice is willful neglect and not an accident. A charting willful neglect and not an accident. A charting “oops” should never result in a castastrophe. “oops” should never result in a castastrophe. If the “oops” barrier is crossed into a If the “oops” barrier is crossed into a catastrophic result, it then changes everything catastrophic result, it then changes everything and is now called negligenceand is now called negligence– Left vs. rightLeft vs. right– Male vs. femaleMale vs. female– Age discrepancyAge discrepancy

SELF PROTECTIONSELF PROTECTION

““ANUS PROTECTUS”ANUS PROTECTUS”


Careful documentation in ALL medical recordsCareful documentation in ALL medical records Just the facts-nothing more (Temp=38.9 C.)Just the facts-nothing more (Temp=38.9 C.) Just ALL the facts (“Patient febrile” is not Just ALL the facts (“Patient febrile” is not

good enough)good enough) Avoid slang or “clever” phrases (“This gomer Avoid slang or “clever” phrases (“This gomer

really needed a bath”)really needed a bath”) Say what you mean and mean what you say Say what you mean and mean what you say

LungsLungs“appear “appear clear to A & Pclear to A & P” ” doesn’t cut it. doesn’t cut it. (Carl Glassman, M.D.)(Carl Glassman, M.D.)

Deposition statements must = Testimony in Deposition statements must = Testimony in CourtCourt– ““That’s my story and I’m stickin’ to it!”That’s my story and I’m stickin’ to it!”


Recommend a personal journal of Recommend a personal journal of “events and rare occurrences” that you “events and rare occurrences” that you believe should have been done believe should have been done differently in the course of treatment of a differently in the course of treatment of a patientpatient– Exact time, date, description of occurrence Exact time, date, description of occurrence

and ALL involvedand ALL involved

– Lawyers LOVE documentationLawyers LOVE documentation

Thank YouThank You

Medical Legal Aspects and Concerns of the Mid-Level Pratcioner

Healthcare

Transcript of Medical Legal Aspects and Concerns of the Mid-Level Pratcioner