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Understanding Medical Malpractice
Debbie Sullivan, PhD, PA-C
March 7, 2014
Objectives
• Discuss reasons why people sue
• Understand the 4 elements of medical malpractice
• Define standard of care
• Contrast claim vs. litigation
• Contrast settlement vs. trial
• Discuss ways to minimize chances of being sued
Why do People Sue?
• Anger: “didn’t listen to me…” • Variations: “didn’t answer questions” “wouldn’t return
my phone calls” “didn’t explain”
• Want answers
• Hold someone accountable for what happened (doctor should lose license; don’t want this to happen to someone else)
• Money
• Bad outcome
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Elements of Medical Malpractice
• Duty: Health care provider (HCP) owed a duty to the patient
• Breach of duty: HCP failed to act by the standard of care, and therefore, breached the duty owed to the patient
• Causation: the HCP’s breach of duty was the proximate cause of some harm
• Damages: HCP’s breach actually caused physical, emotional, economic or other damage
The 4 “Ds” of Medical Malpractice
• Duty
• Dereliction of duty
• Direct causation
• Damages
Duty
• There must be a recognized HCP-patient relationship in order for there to be a duty owed the patient
• If there is a relationship, then the HCP has the duty to meet the standard of care (SOC)
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Standard of Care
• What a reasonably competent, prudent HCP would do in the same or similar circumstances having the same or similar information• Same or similar background
• Same or similar location
Breach of Duty
• HCP failed to meet the SOC
• Usually requires expert testimony from an equally trained HCP to support that the SOC was not met• Written affidavit or statement
• Deposition and/or trial testimony
• Qualifications of expert vary by state
Causation
• Probably the most challenging aspect of medical malpractice
• Prove that the breach of duty/failure to meet SOC was the proximate cause of injury
• Complications or events as a natural course of a disease vs. failure to meet SOC
• The “but….for” question: But for the actions of the HCP, would this have occurred?
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Damages
• Economic:• Cost of medical care (past and future)
• Lost wages or earning capacity
• Non-economic:• Physical injury, disfigurement
• Emotional: “pain and suffering”
• Loss of…
• Punitive: wanton and reckless conduct
• Vulnerable adult: pattern of neglect
Claim vs Litigation
• Patient or legally authorized representative can make a claim directly against a hospital or HCP
• Patient may retain an attorney to make a claim on their behalf
• Attorney may file suit– Suit filed vs. served
• Can often resolve a claim at lower cost and avoid expense of litigation
• Statue of limitations
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Settlement vs. Trial
• Settlement = financial compensation
• 90% of claims and suits are resolved in the litigation process and never go to trial
• Often a business decision by the insurance carrier to settle a claim
• Some states have mandatory mediation in hopes of avoiding costly litigation
• Usually involves all parties reaching an agreement which is memorialized in a legal settlement document
Lawsuit Statistics
• Nearly 63% of cases brought are dropped or dismissed with no payout to the plaintiff
• About 30% of cases brought are settled with a payout to the plaintiff
• 5.4% of cases brought proceed to trial and result in a verdict for the defendant and no payout
• 1.3% of cases brought to trial result in a verdict for the plaintiff
Lawsuit Statistics
• Malpractice claims originate more than twice as often in hospitals as compared to ambulatory settings
• Within hospitals, over 1/3 of cases arise in OR setting
• Other high risk settings are obstetrics and emergency department
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Danger Zone for PAs
• Not consulting with supervising physician and/or failure to document physician’s involvement in patient’s care
• Not referring to a specialist, or not referring in a timely manner
• Not complying with state regulations
Ways to Minimize Your Chance of Being Sued
• Be nice
• Be professional
• Listen
• Know what you don’t know
• Involve your supervising physician
• Know the “red flags” for the discipline in which you practice and be cautious
• Document, document, document!!
Questions?
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