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

David J. Robinson, MDAssociate Professor and Vice-Chairman of Emergency Medicine

Department of Emergency MedicineMarch 8, 2012

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

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?

Brown, et al. AEM 2010;17 (5):553-560

• 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)

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 2010;17 (5):553-560

Claims payout for Severity and Outcomes follow condition of patient

Brown, et al. AEM 2010;17 (5):553-560

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 patient’s complaint• Communicate

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 2010;17 (5):553-560

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

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

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. 1989;18(10):1029-1034

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

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?PT=5

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?PT=5

Top 10 Errors Associated with Closed Claims

Brown, et al. AEM 2010;17 (5):553-560

• Error in diagnosis and improper performance = 54% of paid claims• Note: Failure to ‘supervise, perform, delay, recognize, treat…’

Communication issues?

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 2010;17 (5):553-560

The problem with settlements: No one really wins… except

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 5hours. 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 permanentassistance now.

From G. Moore. Edited from ’Beware! The New Hotbed of litigation. ACEP Scientific Assembly, general lecture series 10/2011

Continued

• Plaintiff: You didn’t diagnose me in time togive tPA even though I arrived within one hour.

• Defense: Seemed like an MS exacerbation and you wouldn’t 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

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. 2008;52:160–4.

(2) Thiess DE, Sattin JA, Larriviere DG. Hot topics in risk management in neurologic practice. Neurol Clin. 2010;28:429–439. doi: 10.1016/j.ncl.2009.11.005

And we wonder why they’re not a greater part of the ED volume

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 101.4°f

• Parents are concerned for appendicitis – the parents say the pain is down to the RLQ…and they want the CT…

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?

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

• Reviews closed claims from 1985-2006• Most Prevalent: Meningitis, Appendicitis, Nonteratogenic

anamolies, pneumonia, brain damage

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 2008;122:e1282-e1286

Ped Emer care. 2005;12(3):165-9

Note slightly different cases resulting in claims!

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 <2 (26%)

• Fractures, meningitis, and appendicitis most common diagnoses

Selbst S, et al. Epidemiology and Etiology of malpractice Suits. Ped emer care; 2005: 21(3). 165-169

Diagnostic error most commonly found cause…Followed by no medical error!

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 2008;122:e1282-e1286

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 patient’s 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!

‘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?

Don’t pigeon - hole yourself. Many EM diagnostic codes are designed for diagnostic uncertainty – Use them

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

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 don’t 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.

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.

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

Bessenyei v Raiti (cont.)

• The patient sued both physicians claiming they negligently failed to realize the seriousness of a highpressure 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

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 patient’s 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 are“on call”.

•Starve point: Get it in writing. Documentation of consultation is critical

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 ‘C’s: Communicate, Consult, Coach, Chart

Questions?