things that get podiatrists sued wspma annual … that get podiatrists sued (and suggestions on how...
TRANSCRIPT
THINGS THAT GET PODIATRISTS SUED
(AND SUGGESTIONS ON HOW TO AVOID THEM)
WSPMA ANNUAL CONFERENCE - 2017
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 1
YOUR SPEAKER MATTHEW R. WOJCIK LAW FIRM: Bullivant Houser Bailey PC HOME: Seattle, Washington LICENSED IN: Washington, Oregon & Alaska FOCUS: 20 years representing physicians, hospitals, podiatrists, chiropractors, nurses, medical technicians, and product manufacturers in complex civil matters, primarily in the areas of:
• Medical Malpractice • Professional Liability • Product Liability
FUN FACTS: Was certified as an EMT and whitewater rafting guide. He keeps busy chasing after his two sons, coaching flag football, traveling the world with his wife, and trying to correct an "overly athletic" golf swing.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 2
MOST PODIATRISTS WILL BE SUED AT SOME POINT DURING THEIR CAREERS
True
False
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 3
True
7.4% OF ALL PHYSICIANS ANNUALLY HAD A MALPRACTICE CLAIM; 1.6% MADE A PAYMENT
All Physicians
0% 5% 10% 15% 20%
Claim with payment to a plaintiff
Any claim
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 4
1.6% 7.4%
Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.
ALMOST ALL PHYSICIANS WILL FACE A MALPRACTICE CLAIM OVER A 30 YEAR CAREER
0
0.2
0.4
0.6
0.8
1
1.2
30 35 40 45 50 55 60 65 70
Prob
abili
ty o
f Cla
im
Age (yr)
Any claim, high risk Any claim, low risk
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 5 Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk
According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.
PICA INSURES 9,000 PODIATRISTS IN 48 STATES
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 6
5% ANNUAL CLAIMS
FREQUENCY
GENESIS OF A LAWSUIT AGAINST A PODIATRIST
poor or unexpected medical outcome
patient unhappy enough to seek legal
counsel
qualified expert reviews medical
records and testifies that standard of care
was not met
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 7
PRIMARY RISK ISSUES
99
49 35
68
13
173 161
41
219
58
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 8
11% OF CLAIMS CLOSED WITH INDEMNITY PAYMENT
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 9
Closed with
payment
Closed without payment
COMPLICATIONS, POOR OUTCOMES & DISSATISFACTION CLAIMS ARE EXPENSIVE
Average Cost to Defend
$55,288 Average Indemnity
Payment
$117,806*
Average Case Open
24 months
Longest Shortest 9 years 1 month
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 10 * Excludes $0 payments
DISPOSITION
Decision for Plaintiff by Arbitrator
Directed Verdict for Defendant
Dismissed by Court
Insured Never Served
Judgment for Defendant by Court
Judgment for Defendant by Jury
Judgment for Plaintiff by Jury
Negotiated Withdrawal
Non-suit by Plaintiff
Other
Settled before Trial
Settled during Mediation
Settled during Trial
Settled Pre-suit
Summary Judgment for Defendant
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 11
SO WHAT DOES THIS MEAN?
A lot of time, effort, money, frustration
& stress is spent on claims in which
the medicine was good.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 13
REASONS PODIATRISTS GET
SUED Difficult,
Irrational, Angry, Litigious Patients
1
PEOPLE WHO…
…are desperate …are angry …are irresponsible …blame problems on prior medical providers …are addicted to drugs or alcohol …are high maintenance …complain about bills
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 14
HOW TO DEAL WITH PROBLEM PATIENTS? A.End Doctor/Patient Relationship B. Use Best Practices
-Take extra time -Perfect documentation -Establish expectations -Practice defensive medicine
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 15
IF YOU WANT TO GET SUED… • Wait a few days to dictate chart notes. • Liberally use the cut and paste function on your
electronic medical records. • Keep it short—you know what you were thinking.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 16
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 17
REASONS PODIATRISTS GET
SUED Patients Think
You’re in a Hurry
2
PRIOR PHYSICIAN MALPRACTICE EXPERTISE AND PATIENT’S SATISFACTION WITH CARE Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide, even by their patients who do not sue Patients complained they…
…felt rushed …never received explanations for tests …were ignored
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 18
JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 19
The overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all. Patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care--and something else happens to them.
JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 20
What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly.
JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.
WENDY LEVINSON’S 1997 STUDY FOUND THAT DOCTORS WHO HAD NEVER BEEN SUED… …spent an average of three minutes longer with each patient than doctors who had been sued at least twice …were more likely to engage in active listening
“Tell me more about that.” …were more likely to make “orienting” comments
“First I will examine you, and then we will talk about your problem.”
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 21
PATIENT WHO DEVELOPED
INFECTION AFTER BEING CASTED
FOR FRACTURED FIBULA – ENDED
UP WITH
TRANSMETATARSAL AMPUTATION
“The ER doctor came in and looked at my foot. He asked me why I did not go back to the doctor who applied the cast. I told him that Dr. ____ would not return my calls.”
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 22
PATIENT WITH MULTIPLE
COMORBIDITIES & CHRONIC FOOT
ULCER/ABSCESS ADMITTED TO
HOSPITAL. INSURED CONSULTED TO PERFORM I&D.
PATIENT DIED 2 DAYS AFTER DISCHARGE
FROM HOSPITAL
“Dr. _____ arrived only moments before the surgery was about to get started. He came in with a negative attitude and was reprimanding nurses for calling him on the phone prior to his arrival. I felt he was annoyed and he gave me little time to ask questions or have a better understanding of the procedure…”
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 23
PATIENT WHO DEVELOPED
POST-OP COMPLICATIONS
FOLLOWING BUNIONECTOMY
“Dr. ________ didn’t take much of an interest in my pain and suffering following the first surgery, he seemed busy or disinterested.”
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 24
WHAT DOES THIS TELL US?
WHAT DOES THIS TELL US?
The quality of care matters, but… HOW you provide the care matters as much or more.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 27
REASONS PODIATRISTS GET
SUED Perform Lots of
Surgery
3
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 28
Litigation Risk Complications Patients with Serious Problems
=
TOP PROCEDURES INVOLVED IN CLAIMS (STATISTICS FROM PICA) 1. Bunionectomy 2. Hammertoe Repair 3. Wound/Ulcer Care
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 29
CONSISTENT OVER LAST 10 YEARS
SURGEONS FACE THE MOST MALPRACTICE CLAIMS ANNUALLY
Neurosurgery
General Surgery
Plastic Surgery
Obstetrics and Gynecology
Pulmonary Medicine
Cardiology
Neurology
Emergency Medicine
Anesthesiology
Ophthalmology
Pathology
Family General Practice
Pediatrics
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 30 Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk
According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 31
REASONS PODIATRISTS GET
SUED Sloppy with
Informed Consent
4
INFORMED CONSENT STATUTE PROCEDURE TO OBTAIN INFORMED CONSENT OF PATIENT (1) In order to obtain the informed consent of a patient, a physician or physician assistant shall explain the following:
(a) In general terms the procedure or treatment to be undertaken; (b) That there may be alternative procedures or methods of treatment, if any; and (c) That there are risks, if any, to the procedure or treatment.
(2) After giving the explanation specified in subsection (1) of this section, the physician or physician assistant shall ask the patient if the patient wants a more detailed explanation
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 32
ADVICE ON INFORMED CONSENT • Informed consent is a conversation, not a piece of
paper • Use the best form possible to guide conversation • Personalize the conversation • Write on consent form, draw on diagram • Make patient initial and sign sections
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 33
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 34
REASONS PODIATRISTS GET
SUED Fight about Money with
Patients
5
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 35
REASONS PODIATRISTS GET
SUED Treat a Diabetic Ulcer for a Long
Time with No Significant
Improvement
6
MEDICAL BOARD INVESTIGATIONS What to Expect
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 36
PHYSICIANS WITH BOARD ACTIONS - NATIONAL
4,295
4,571
4,449
4,713
4,501 4,439
4,201
4,091
2008 2009 2010 2011 2012 2013 2014 2015
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 37 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2016.
PHYSICIANS WITH BOARD ACTIONS - WASHINGTON
64
48 49
69 73
51
63 63
2008 2009 2010 2011 2012 2013 2014 2015
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 38 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2014.
NUMBER OF PHYSICIANS DISCIPLINED - NATIONAL
660
166 256
377
585
859 825 785
473
960 903 892
438
167 275
472
739
1012
450
857 812 900 952
1067
2008
2012
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 39 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2014.
INVESTIGATION TRIGGERS • Patient complaint • Complaint by others involved in patient’s care • Filing of medical malpractice lawsuit • Settlement of medical malpractice claim or lawsuit • Anything else reportable to the NPDB • Prescription Drug Monitoring Program data • Self report
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 40
Inappropriate Prescribing Practices
1
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 41
REASONS TO BE
INVESTIGATED
Large Malpractice Settlement or Jury
Verdict
2
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 42
REASONS TO BE
INVESTIGATED
Boundary Issues 3
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 43
REASONS TO BE
INVESTIGATED
Bedside Manner 4
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 44
REASONS TO BE
INVESTIGATED
Personal Substance Abuse
5
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 45
REASONS TO BE
INVESTIGATED
WHAT TO EXPECT MEDICAL BOARD INVESTIGATIONS
• Investigation of every report • Process is different in every case • Timeline can be very long • Looking for violation(s) of the Medical Practice Act
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 46
INVESTIGATIVE TOOLS MEDICAL BOARD INVESTIGATIONS
Subpoenas Interviews Prescription Drug
Monitoring Programs (PDMP)
Public Information Undercover or Unannounced Clinic Visits
Center for Personalized Education of
Physicians (CPEP)
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 47
INVESTIGATION OUTCOMES MEDICAL BOARD INVESTIGATIONS
Closure w/o Action
Letter of Concern*
Non-disciplinary Agreement
Complaint and Notice - Hearing
Rights
Stipulated Order
Reprimand, Suspension, Probation
Fines
Restriction(s) On Practice
Final Order Revocation or Denial
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 48
WHAT TO DO? MEDICAL BOARD INVESTIGATIONS
• Insurance Company
• Attorney • Consider
Terminating Patient
• Cooperate • Explore Resources
• Communicate with Patient
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 49
OTHER ISSUES MEDICAL BOARD INVESTIGATIONS
Credentialing National
Practitioner Data Bank
Commercial Payers
Board Certification Personal Civil Lawsuit
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 50
HOW TO AVOID? MEDICAL BOARD INVESTIGATIONS
Golden Rule
Trust Your Instincts
Be Aware of “Concerning” Areas
Get Advice
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 51
IT’S (PODIATRY IS) A SMALL WORLD, AFTER ALL.
QUESTIONS? Matt Wojcik [email protected]
WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 53