How to Starve a Lawyer: Targets for Practice Change and Risk Management

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How to Starve a Lawyer Targets for Practice
Change and Risk Management

• David J. Robinson, MD
• Associate Professor and Vice-Chairman of
  Emergency Medicine
• Department of Emergency Medicine
• March 8, 2012

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Goals

• Identify high risk groups or presentations
  through closed litigated and/or settled cases
• Identified features of high risk litigated cases
• Provide case based examples for risk management
• Offer Starve points to reduce risk and
  (hopefully) litigation

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What are the issues?

• More than 42 of all physicians have been sued,
  20 more twice
• Errors in diagnoses (37), improper performance
  (17) top 2 of 3
• In 18 of cases, no medical error was identified
  (2)
• Failure to supervise or monitor are notable (7)
• Litigation due to medication errors (2)
• Can we mitigate our risk?

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• Looked at closed claims from 1985-2007 (11,529)
  with any ED involvement from PIAA (Physician
  Insurers Association of America) database
• AMI (5), Fractures (6), Appendicitis (2) most
  common in adults
• 70 closed without payment, 29 settlement, 7
  verdict (85 for clinician)

Brown, et al. AEM 201017 (5)553-560
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Summary of closed Claim Injuries

• Most closed claims result from serious injuries,
  1/3 involve a death (1985-2007)
• Over 80 of total indemnity of claims made was
  paid for serious or permanent injury
• Average indemnity and expenses have more than
  doubled since 1985. Avg EM indemnity 185,226
• However,
• 85 of verdicts favored the physician
• emotional or insignificant injuries not
  significant source of claims
• 7,220 closed claims ( not settled) cost 85 M in
  expenses

Brown, et al. AEM 201017 (5)553-560
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Claims payout for Severity and Outcomes follow
condition of patient
Brown, et al. AEM 201017 (5)553-560
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Four Risk management techniques to reduce
successful litigation

• Understand characteristics of high risk
  presentations
• Recognize limitations of diagnostic work-ups,
  particularly with presentations that have high
  levels of uncertainty (chest pain, abdominal
  pain)
• Listen to patients complaint
• Communicate

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Characteristics for Closed Claims Related to 3
Main Categories

• Chest pain (4, 34 paid), AMI (5 , 42), aortic
  aneurism (2, 32)
• Abdominal pain (3, 27), Appendicitis (2, 31)
• Injuries Fractures / open wounds 11, 28-31

Brown, et al. AEM 201017 (5)553-560
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Chest pain

• A 32 year old homeless male presents to the
  Emergency Department complaining of chest pain.
  He admits to the clinician of drinking excessive
  amounts of alcohol on a regular basis. At this
  time there is alcohol on his breath. His sinus
  rhythm is 100 and his ECG is non-diagnostic.

FromBlauthttp//community.advanceweb.com/blogs/al_
1/archive/2009/08/14/ami-case-study.aspx
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Chest pain Continued

• Hx of uncontrolled HTN, borderline DM, hx drug
  and etoh abuse. Time 0 and 2 TCK and MB
  elevated, trops (-)
• Patient ruled out and sent home with Chest pain
  and alcohol / substance abuse
• Outcome?
• Unknown, but the author (A chemist and
  statistician) of the blog recommended that the
  patient be sent home and that no further work-up
  is necessary

FromBlauthttp//community.advanceweb.com/blogs/al_
1/archive/2009/08/14/ami-case-study.aspx
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Factors Associated with Missed AMI

• Low volume EDs
• Not reading the ECGs
• Underestimating the patients risk
• Atypical presentation
• Young age of patient
• Starve point beware of the young (patient,
  ED, provider)

Rusnak, et al. Litigation against the emergency
physician common features in cases of missed
myocardial infarction. Ann Emer Med.
198918(10)1029-1034
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6 Starve points for AMI management

• Differing expectations
• Sharp pain or chest wall tenderness excludes MI
• A normal ECG excludes MI

• Young patients cannot have an MI
• Indigestion symptoms exclude an MI
• Normal cardiac enzymes exclude an MI

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Case of Wrongful Death

• 66 y/o with prior MI presents to ED with CP, SOB
  and pain to both arms. Remained in ED overnight.
  Admitted to hospital room in am. Experienced CP
  in hospital, anginal pain with stress test during
  stay. Coded on transfer from floor to CCU
• Outcome cardiologist hospital settled for
  225,000 for wrongful death (improper monitoring
  in a known cardiac patient)
• Starve point expectation of delivered care
  (performance error)

http//www.goldsmithlegal.com/web_app/main/default
.aspx?PT5
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Case of Failure to Diagnose

• 47 with syncope seen in ED on 9/15/99. ECG
  noted prolonged QT (K 3.0). Hx HTN on and arb
  Observed in ED for 3 hours and gave K.
  Discharged with dx of Anxiety. Gave xanax and
  told to follow up with pcp.
• Outcome died of sudden cardiac death on 10/31/99
• Verdict 700,000 to ED MD for failing to
  recognize cardiac abnormalities
• Avoidable?

http//www.goldsmithlegal.com/web_app/main/default
.aspx?PT5
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Top 10 Errors Associated with Closed Claims

• Error in diagnosis and improper performance 54
  of paid claims
• Note Failure to supervise, perform, delay,
  recognize, treat Communication issues?

Brown, et al. AEM 201017 (5)553-560
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Review Failure to Diagnose Case

• Missed AMI associated with highest paid-to-close
  ratio (42 of closed claims)
• Coupled with diagnostic uncertainty (improper
  performance (7), failure to perform (4),
  failure and delay of consultation(2), fail to
  admit (2) cases like syncope can be difficult to
  manage
• Starve point define your case management,
  negotiate expectations with patient and family,
  ensure follow-up and get buy-in

Brown, et al. AEM 201017 (5)553-560
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The problem with settlements No one really wins
except
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Featherston v Lourdes Hospital Kentucky
Facts A 39 year old woman was taken to the ED
after passing out at home in the bathroom. Her
initial complaint was left sided weakness, facial
droop, and confusion. She had a diagnosis of MS
made weeks before this event. She was observed in
the ED for 5 hours. She claimed she was not seen
by a doctor during this time. The doctor had no
documentation that he had seen her in this
period. Eventually a neurologist saw her and
admitted her to the ICU with a severe right
brain stroke. She needs permanent assistance now.
From G. Moore. Edited from Beware! The New
Hotbed of litigation. ACEP Scientific Assembly,
general lecture series 10/2011
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Continued

• Plaintiff You didnt diagnose me in time to
• give tPA even though I arrived within one hour.
• Defense Seemed like an MS exacerbation and you
  wouldnt have been a good tPA candidate.
• Result Jury verdict of 2.1 million.
• tPA cases a new favorite know indications,
  give informed consent, neuro input is important
• Meticulously identify time of onset, review each
  case, do not delay, communicate with patient and
  family

From G. Moore. Edited from Beware! The New
Hotbed of litigation. ACEP Scientific Assembly,
general lecture series 10/2011
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Characteristics of litigation involving
thrombolytics and Ischemic Stroke

• In 88 of verdicts, injury was claimed from
  failure of treatment with tPA (1).
• Thiess et al. identified 20 trial court and six
  appellate cases that involved suits over the
  nonuse of IV tPA for patients with a stroke, and
  none for injury caused allegedly by the drug. In
  14 of 20 cases, the verdict was for the defendant
  (2)
• Starve point Know indications and comply, know
  contraindications, good consent effort, document
  line of thinking, involve consultants

1. Liang BA, Zivin JA. Empirical characteristics of
   litigation involving tissue plasminogen activator
   and ischemic stroke. Ann Emerg Med.
   2008521604.
2. Thiess DE, Sattin JA, Larriviere DG. Hot topics
   in risk management in neurologic practice. Neurol
   Clin. 201028429439. doi 10.1016/j.ncl.2009.11.
   005

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And we wonder why theyre not a greater part of
the ED volume
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Belly Pain in a 6 year old

• A 6 y/o boy with 3 days of abdominal pain then
  N/V presents to your ED. Family members have
  similar complaints and have been in the ED before
  with other kids. On exam Abd is TTP diffusely, -
  rebound, CBC is 11.5k/ml, T is 101.4f
• Parents are concerned for appendicitis the
  parents say the pain is down to the RLQand they
  want the CT

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Belly pain (continued)

• They physician reviews the records and sees that
  several family members have been in the ED in the
  last week, all dx with gastroenteritis from a new
  New Years diet that mom has all on. After
  reevaluation, pain is in RLQ but no rebound and
  child appears well. Patient is sent home with
  pain meds, dx of gastroenteritis.
• Issues with Case?

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Issues with treating the little people

• Children and elderly often require specific
  negotiations with care-giver.
• Often rely on history from proxy. Times and
  dates may not be accurate
• Physical exam can be vague, non-specific
• Lab tests may not be useful. Lab ranges can be
  different than in adults

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• Reviews closed claims from 1985-2006
• Most Prevalent Meningitis, Appendicitis,
  Nonteratogenic anamolies, pneumonia, brain damage

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Starve points from the Pediatric Literature

• Document pertinent positives and negatives
• Document carefully, free from flippant,
  critical, or other inappropriate comments
• Quality not quantity
• Do not underestimate the importance of referral
  to specialists
• Red flag specific complaints that the patient
  identifies
• Communication and use of terminology poor
  communication is the catalyst for most medical
  malpractice lawsuits
• Avoid language that blames or embellishes
• Correctly label conditions such as DDH
• Make sure that the patient (and care-giver)
  understand health information. Written material
  should be at the 8th grade level

McAbee et al. Pediatrics 2008122e1282-e1286
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Note slightly different cases resulting in claims!
Ped Emer care. 200512(3)165-9
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Pediatric EM Claims

• 16 yr study from Physician Insurers Assoc. of
  America. All closed claims to EDs and UCs from
  1985-2000
• 2283 claims from age 0-17
• EM physicians were in 443
• Cases involved boys (59), age lt2 (26)
• Fractures, meningitis, and appendicitis most
  common diagnoses

Diagnostic error most commonly found
cause Followed by no medical error!
Selbst S, et al. Epidemiology and Etiology of
malpractice Suits. Ped emer care 2005 21(3).
165-169
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Common Misdiagnoses from PIAA in Pediatrics

• For Appendicitis gastroenteritis, URI, otitis,
  sinusitis, PID
• For meningitis Viral infection/influenza
  (35.6), other(24.5), OM, gastroenteritis, UTI,
  post op infection, migraine, febrile seizure
• Non teratogenic anomalies developmental
  dysplasia of the hip (DDH)

McAbee et al. Pediatrics 2008122e1282-e1286
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More Starve points for Pediatrics

• Recognize that meningitis and appendicitis may
  evolve over time
• Limitations in diagnostics, particularly with
  fractures need to be addressed with the patients
  caregivers, and documented appropriately
• Explain any and all procedures, their risks and
  outcomes (both expected and adverse)
• Follow up or encouragement to RIW is the rule
  rather than exception
• Communication is key!

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Starve Points when considering cases of
diagnostic uncertainty

• Was that abdominal pain really gastroenteritis?
• Was that Chest Pain really noncardiac?
• Did the history and physical exam really exclude
  appendicitis?
• Could there be a foreign body even after a
  thorough washout?

Dont pigeon - hole yourself. Many EM
diagnostic codes are designed for diagnostic
uncertainty Use them
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Examples of coding when diagnosis is unclear

• Shortness of Breath (786.05)
• Chest Pain NOS (786.59), (aka atypical,
  muscular)
• Note at rest (786.50), cardiac, and with normal
  angiography are all the same beware as a d/c
  diagnosis
• Abdominal Pain, other specified site (789.09),
  acute generalized (789.07), LLQ (-.04), (RLQ
  -.03)
• Fever of undetermined origin (780.60)
• Headache, acute (784.0) includes around eyes,
  front and back of head, occipital or aching
• (orgasmic is 339.82 fyi)

Starve Point Review your billing codes make
sure the charts reflect your level of confidence
in the diagnosis
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Castillo-Monterroso v Rhode Island Hospital
Rhode Island
Facts A one week old was taken to the ED by
ambulance. The triage nurse took the history from
the Spanish family via broken English and hand
gestures. At one point the family said they had
tapped on the chest but when asked if the child
stopped breathing, replied, I dont know. No
translator was obtained. A first year pediatric
resident saw the patient and did not feel a
translator was needed. The infant was discharged
shortly after. Within hours she stopped breathing
and died 4 days later.
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Castillo-Monterroso v Rhode Island Hospital
Rhode Island

• Plaintiff You failed to diagnose rsv and apnea
  due to poor communication
• Defense None
• Result Verdict for 400,000
• Note This is being seen more frequently in the
  medical-legal literature. It is optimal to get
  translators and sign language personnel involved
  to optimize patient care. Sign language case..
• Starve point Make sure that your patient
  understands you Use a translator and document
  it.

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Bessenyei v Raiti
A patient had paint thinner injected into his
thumb and presented to the ED. Hand surgeon,
who was not on call, was consulted by the ED
doctor because he was always amongst the most
willing colleagues to help. The hand specialist
recommended antibiotics and pain meds. The
patient was given those, had tetanus updated and
was discharged to return if worse. The thumb did
get worse and required partial amputation.
From G. Moore. Edited from Beware! The New
Hotbed of litigation. ACEP Scientific Assembly,
general lecture series 10/2011
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Bessenyei v Raiti (cont.)
The patient sued both physicians claiming they
negligently failed to realize the seriousness of
a high pressure injection and appropriately
incise and debride. The hand physician claimed
no relationship he simply provided advice. The
judge held the ED physician solely liable. The
ED MD had direct contact with the patient, could
override the consultant by accepting or rejecting
his recommendations and made the final decision.
From G. Moore. Edited from Beware! The New
Hotbed of litigation. ACEP Scientific Assembly,
general lecture series 10/2011
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Consultants

• In general, a consultant over the phone does
  not have a physician patient relationship
  established
• Most courts require an actual exam by the
  physician to establish a relationship or a very
  specific and affirmative action by the physician
  that establishes that they agree to be involved
  in the patients care.
• Courts are hesitant to have mere conversations
  establish a formal relationship as it would chill
  the normal communication of professionals that
  usually facilitates optimal patient care, even
  when they areon call.
• Starve point Get it in writing. Documentation
  of consultation is critical

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Summary Points to Reduce Risk of Successful
Litigated Claims (and perhaps Claims)

• For Adults Chest pain, AMI, appendicitis, and
  missed or complicated fractures found most
  commonly in database
• For kids add meningitis, testicular torsion, and
  PNA to the high risk ddx
• Errors in diagnosis, failure to perform,
  identify, or delays are primary reasons for
  litigation. Detail these errors in advance to
  your patients
• Outline your management strategy to your
  patients, consultants. Let them know of the
  limitations to your tests and the probability of
  success
• Beware of the young (provider, patient, hospital
  (system))
• Think in terms of a health warranty (not
  guarantee)
• Remember the 4 Cs Communicate, Consult, Coach,
  Chart

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Questions?