Avoiding Medical Malpractice
Michele M. Cerullo, JD
Assistant Attorney
University of South Florida
Office of the General Counsel
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The Statistics
• 2011 Harvard study –
Most doctors in America will be
sued at some point during their
career
More Statistics
• The good news: A relatively small number of claims
result in payments to patients or their families
▫ About 93% of all medical malpractice cases are resolved before trial
(only 7% go in front of a jury)
▫ NEJM study: Of medical malpractice cases that make it to court
trials, plaintiffs prevailed in 21% of verdicts, while settlementbased resolutions favored the plaintiff in 61% of cases
▫ NEJM study: Average compensation in medical malpractice claims to
be about $485,000, with average jury awards after a verdict in court
checking in at almost twice the average out-of-court settlement
($799,000 for jury awards and $462,000 for settlements).
▫ JAMA: The average compensation for medical malpractice that
occurred in the inpatient setting was around $363,000, while the
average award for healthcare mistakes in the outpatient
setting was about $290,000.
Inpatient Surgeries (2009 CDC)
• Total number of procedures performed: 48.0 million
• Number of selected procedures performed:
• Arteriography and angiocardiography using contrast material: 1.9
million
• Cardiac catheterizations: 1.1 million
• Endoscopy of small intestine with or without biopsy: 1.1 million
• Endoscopy of large intestine with or without biopsy: 525,000
• Computerized axial tomography (CAT scans): 497,000
• Diagnostic ultrasound: 902,000
• Balloon angioplasty of coronary artery or coronary atherectomy:
605,000
• Hysterectomy: 494,000
• Cesarean section:1.3 million
• Reduction of fracture: 621,000
• Insertion of coronary artery stent: 528,000
• Coronary artery bypass graft: 415,000
• Total knee replacement: 676,000
• Total hip replacement: 327,000
The reality….
• The “Hassel Factor”
▫ Medical malpractice suits can take anywhere from
1 to 7 years to resolve
▫ Once the suit is filed, it takes an average of 27.5
months to reach resolution of a medical
malpractice case through a negotiated settlement
or through a jury verdict.
Dissecting a case
• The Parties:
▫ Plaintiff – “the complainer” also known as a claimant or
complainant and the person or institution that initiates the
lawsuit.
▫ Defendant – “I didn’t do it!” or a person or institution against
whom an action is brought in a court of law; the person being
sued or accused.
▫ Fact Witness – “I saw it all” or a person with knowledge about
what happened in a particular case, who testifies in the case about
what happened or what the facts are.
▫ Expert Witness – “I know it all” or a person who is a specialist
in a subject, often technical, and qualified to present his/her
expert opinion without having been a witness to any occurrence
relating to the lawsuit or criminal case.
▫ The fact/expert witness?
The Investigation
• Reasonable investigation by the attorney filing the action to
determine that there are grounds for a good faith belief that there
has been negligence in the care or treatment of the claimant.
• The complaint or initial pleading shall contain a certificate of
counsel that such reasonable investigation gave rise to a good
faith belief that grounds exist for an action against each named
defendant.
• Good faith may be shown to exist if the claimant or his or her
counsel has received a written opinion, which shall not be subject
to discovery by an opposing party, of an expert that there appears
to be evidence of medical negligence.
• If the court determines that such certificate of counsel was not
made in good faith and that no justiciable issue was presented
against a health care provider that fully cooperated in providing
informal discovery, the court shall award attorney’s fees and
taxable costs against claimant’s counsel, and shall submit the
matter to The Florida Bar for disciplinary review of the attorney.
▫ Florida Statutes, 766.104
Presuit Notice and Exchange of Discovery
• After completing the presuit investigation and prior to filing
a complaint for medical negligence, a claimant shall notify
each prospective defendant by certified mail, return receipt
requested, of intent to initiate litigation for medical
negligence.
• Notice to each prospective defendant must include, if
available, a list of all known health care providers seen by
the claimant for the injuries complained of subsequent to
the alleged act of negligence, all known health care
providers during the 2-year period prior to the alleged act
of negligence who treated or evaluated the claimant, copies
of all of the medical records relied upon by the expert in
signing the affidavit, and the executed authorization to
release PHI.
• The parties exchange information such as unsworn
statements, document, physical and mental examinations.
▫ Florida Statutes, 766.106
Notice of Claim or Summons
• A Notice of Claim or Summons is a legal notice
indicating the beginning of a lawsuit.
• If you receive a Notice of Claim/Suit, a Summons, or
are named personally as a defendant in a lawsuit,
contact the Self Insurance Program (SIP)/ Risk
Management or the Office of the General Counsel
immediately (813-974-8008).
11
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SUMMONS IN A CIVIL ACTION
Sue A. Lot, Plaintiff,
CASE NUMBER:
v.
THE UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES, Drs. Mistake and Trouble
Defendants.
(Name and Address of Defendant)
THE UNIVERSITY OF SOUTH FLORIDA
c/o (name) , Assistant General Counsel
University of South Florida
4202 E. Fowler Avenue, ADM 250
Tampa, FL
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon
PLAINTIFF'S ATTORNEY (name and address)
Anita Lexus
Jag & Mercedes, P.A.
1234 E. 7th Ave., Suite 1000
P.O. Box 5551212
Tampa, FL 33675-7777
(813) 123-4567
an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,
judgment by default will be taken against you for the relief demanded in the complaint.
SHERYL L LOESCH
AUG 2 9 2009
DATE
CLERK
BY DEPUTY CLERK
The Complaint
• Criminal Complaint - charges the person named
or an unknown person with a particular offense.
It states the facts that constitute the offense and
must be supported by probable cause.
• Civil Complaint - initiates a civil lawsuit by
setting forth for the court a claim for relief from
damages caused, or wrongful conduct engaged
in, by the defendant. The complaint outlines all
of the plaintiff's theories of relief, or causes of
action (e.g., negligence, battery, assault), and the
facts supporting each cause of action.
Subpoena
•
•
•
•
Subpoena for Deposition: testimony under oath
Duces Tecum: bring records with you
Without deposition: provide the records
If patient records are request, be aware of HIPAA and
contact the OGC
• Call the attorney issuing the subpoena to coordinate a
time, date and location for the deposition
• Contact the OGC about an issues or questions that
arise
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR HILLSBOROUGH COUNTY
CRIMINAL JUSTICE DIVISION
State of Florida
VS
DEFENDANT
DR. ALPHA SURGEON
TAMPA GENERAL HOSPITAL
1 DAVIS BLVD
TAMPA, FL 33606
CASE NO: 00-0000
SUBPOENA
DIVISION: D
Patient:_______________________
Date of Birth:___________________
By service of this subpoena, you are hereby commanded to appear for the purpose of giving truthful testimony in behalf of the STATE OF FLORIDA in a Jury
Trial, wherein the STATE OF FLORIDA is plaintiff and the above named is defendant.
You are called to appear for a period of time beginning at 8:00am., the week of the 16th day of July, 2011, before JUDGE ______________, in courtroom
#23, Third Floor, of the HILLSBOROUGH COUNTY COURTHOUSE ANNEX, NORTH TOWER, 801 East Twiggs Street, Tampa, Florida.
Pursuant to Section 914.03, Florida Statutes, this subpoena shall remain in full force and effect until disposition of the cause or until you are excused by the Court.
*****IMPORTANT*****
UPON RECEIPT OF THIS SUBPOENA AND PRIOR TO THE COURT DATE ABOVE, CONTACT THE WITNESS AID CENTER AT (813) 272-5050, TO
CONFIRM THE DATE AND RECEIVE NOTIFICATION OF ANY CHANGES, CONTINUANCES, OR SPECIAL INSTRUCTIONS.
IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT, PERSONS NEEDING A SPECIAL ACCOMMODATION TO PARTICIPATE IN THIS JURY TRIAL
SHOULD CONTACT 272-5050, NOT LATER THAN SEVEN (7) DAYS PRIOR TO THE PROCEEDING OR VIA FLORIDA RELAY SERVICE FOR THE HEARING
IMPAIRED AT 1-800-995-8770 (TDD-TTY).
DATED, this 29th day of June, 2011.
MARK A. OBER
STATE ATTORNEY
13TH JUDICIAL CIRCUIT
RETURN INFORMATION
INDIVIDUAL SERVICE ON NAMED PERSON
SUBSTITUTE SERVICE BY SERVING:
ASSISTANT STATE ATTORNEY
NON-SERVICE FOR THE FOLLOWING REASON:
FLA BAR*
REASON:
SCOTT HARMON/vlm
2001-106037-0021
DATE:
FOR THE COURT
DEPUTY SHERIFF-PROCESS SERVER
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OFFICE OF THE JUDGE OF COMPENSATION CLAIMS
ST. PETERSBURG
EMPLOYEE:
EMPLOYER/CARRIER:
CLAIM NUMBER: xxxxx-xxxxx-xx
DATE OF ACCIDENT: 02/13/09
SUBPOENA DUCES TECUM FOR DEPOSITION
THE STATE OF FLORIDA:
TO:
Will Sueyou, M.D.
USF / Department of Neurology
College of Medicine
Health & Sciences Bldg.
12901 Bruce B. Downs Blvd., Room #2128
Tampa, FL 33612
YOU ARE HEREBY COMMANDED to appear before a person authorized by law to take depositions at: USF /
Department of Neurology, College of Medicine, Health & Sciences Bldg., 12901 Bruce B. Downs Blvd.,
Room #2128, Tampa, FL 33612 on August 16,2011, at 2:00 p.m.,
for the taking of your deposition in this action, and to have with you at that time and place the following:
Copies of the entire medical file, including, but not limited to, any and all
medical records, reports, x-rays, narratives, bills, et cetera, in your custody
and control concerning any and all care, treatment and examination rendered
to
, SS#:
, D.O.B:
If you fail to appear, you may be in contempt of Court. You are subpoenaed to appear by the following attorneys and unless
otherwise excused from this subpoena by these attorneys or the Court, you shall respond to this subpoena as directed.
Herein fail not.
A true copy.
Sheriff
Given under my hand and seal, at Clearwater, Florida, this I 4 day of June, 2010.
Mr. Attorney, Esquire For the Court
SAM SNIDE, ESQUIRE
Snide, Snide & Snide, PCA.
P.O. Box 5555
Clearwater, FL 33766
Fla. Bar #0000000
Attorney for Employer/Carrier
Attendance
• Subpoena for Trial: You must attend unless excused.
You may face a motion for contempt of court if you
choose to ignore the subpoena.
• Contact the Witness Center or issuer to schedule a date
and time for your appearance at trial.
• Provide a contact number, including an after hours phone
or pager number to minimize your inconvenience.
• Federal courthouse: must have id and no electronic
devices.
• State courthouse: electronic devices are permitted.
Contact With Attorneys
• If you receive a telephone call from an attorney
who does not work for USF or if you are unsure
whether the attorney works for USF, you do
NOT have to speak with the attorney. Refer the
caller to the USF Office of the General Counsel at
(813)974-2131.
• You are not permitted under HIPAA to discuss
you patients with outside attorneys or law
enforcement unless certain documentation has
been provided.
Served With Letters or Court Papers
• Court papers (subpoenas, summons, etc.) should be
served at the Office of the General Counsel and will be
forwarded to you from the OGC either by fax or email to
your USF Health email account. Always refer process
servers to 4202 E. Fowler Avenue, CGS 301 to serve court
papers.
• HOWEVER, if you are personally served with any court
papers or letters from a non-USF attorney, fax the papers
on the day you receive them to (813)974-5236 (USF Policy
0-103). You may also contact the Office of the General
Counsel at (813)974-2131 and ask to speak with an
attorney.
• Please check voice mail, mail and (USF Health) email
regularly. If you are out for more than a few days-make
sure someone checks your mail and you turn on your “out
of office assistant” on in your email.
Med Mal - Deviation from the standard
• The National Standard of Care: requires a
doctor to use the degree of skill and care of a
reasonably competent practitioner in his field under
same or similar circumstances
• The Locality Rule: requires a doctor to have the
reasonable caliber of skill and knowledge that is
generally possessed by surgeons and physicians in
the locality where he or she practices
• The Respectable Minority Rule: where the
doctor did not follow the same course of therapy
that other doctors would have followed, he can show
that his course is accepted by a respectable minority
of practitioners
The standard - Florida
• Prevailing professional standard of care - level of
care, skill, and treatment which, in light of all
relevant surrounding circumstances, is
recognized as acceptable and appropriate by
reasonably prudent similar health care
providers
• ED standard – reckless disregard
The formula
• Duty (physician-patient relationship) +
• Breach of duty (failure to meet the required standard
of care) +
• Causation (breached caused patient’s injury) +
• Damages =
• LIABILITY
Top 10 Medical Malpractice Claims
* according to one author
•
•
•
•
•
•
•
•
•
•
Medication Errors
Diagnosis Failures
Negligent Supervision
Delayed Treatment
Failure to Obtain Patient Consent
Lack of proper credentialing or technical skill
Unexpected death
Infections
Pain, suffering and emotional distress
Lack of Teamwork and Communication
Prevention. The easy steps…
• The Physician/Patient Relationship
• August 2010 Florida Medical Business
▫ Front cover “Listen Up! People Sue Less When You Hear
More.”
• Malcolm Gladwell, Blink:
▫ “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.”
▫ “What comes up again and again in malpractice cases is
that patients say they were rushed or ignored or treated
poorly.”
1997 Study (Wendy Levinson, MD)
• Levinson recorded hundreds of conversations between a group of physicians and their
patients. Half of the doctors had never been sued, and the other half had been sued at least
twice.
• Levinson found that just on the basis of those recorded conversations alone, she could find
clear differences between the two groups:
▫
▫
▫
▫
The doctors who had never been sued spent more than three minutes longer with each patient
than those who had been sued did (18.3 minutes versus 15 minutes).
They were more likely to make “orienting” comments, such as “First I’ll examine you, and then
we will talk the problem over” or “I will leave time for your questions.”
They were more likely to engage in active listening, saying things such as “Go on, tell me more
about that.”
They were far more likely to laugh and be funny during the visit.
• Levinson reported no difference in the amount or quality of information doctors gave their
patients; the never-sued doctors didn’t provide more details about medication or the
patient’s condition.
• The difference was entirely in how they talked to their patients.
“Listen! (And be liked)…
▫ “People are reluctant to sue people they like, and
people like people that listen to them.”
 How to listen better:
 Reflective feedback- ask questions, make statement or
offer cues that show you understand, agree or don’t
understand
 Silence – focus on what is being said
 Listen with your eyes
 Positioning
 Allow the extremely emotional person to speak
The easy steps….
• Teamwork and team communication
• The team includes: patients, nurses, referring
and consulting physicians, laboratories and
more
• Keep the communication lines open with the
team
• Watch for disruptive behavior and report it
What is disruptive behavior?
“It is the health care equivalent of road rage.”
Dr. Peter B. Angood, Chief Patient Safety Officer at the Join Commission
Who does it? What it looks like?
• Leading offenders: High Specialty Fields
• Medical conditions (beware of the Americans
with Disabilities Act)
• Harassment, including sexual harassment
• Discrimination
• Retaliation
• Defamation
• Violations of HIPAA and patient privacy
• Unprofessionalism
• JUST PLAIN OLD BAD BEHAVIOR
Disruptive Doctors and Medical Care
• Survey of health care workers at 102 nonprofit
hospitals from 2004-2007
▫ 67% of respondents believed there is a link
between disruptive behavior and medical mistakes
▫ 18% KNEW of a mistake that occurred because of
disruptive behavior
• 40% of hospital staff have been so intimidated
by a physician they did not share concerns about
orders for medication that appeared to be
incorrect – 7% contributed to a medical error
Laurie Tarkan, Arrogant, Abusive and Disruptive — and a Doctor, New York Times, December 1, 2008
January 1, 2009
Joint Commission Standard
• Activities considered under the new standard are
verbal outbursts, condescending attitudes, refusing
to take part in assigned duties and making physical
threats, based on the Joint Commission’s belief that
these behaviors have a negative effect on
communication, collaboration and
teamwork vital to a good patient care
environment.
• Zero tolerance policy, involvement and support from
physician leaders, and reducing fears of retribution
if a physician reports a colleague for this type of
behavior
Other pitfalls…
•
•
•
•
•
•
•
•
•
Documenting Medical Records
History
Follow-up
Patient education
Informed consent
Informed refusal
Labs
Documenting prescriptions
Leaving foreign objects in a patient? Surgery on
the wrong body part?
Weak Medical Record
• If it is not in the record, it did not happen
• Adequate explanation in the record of what the doctor
did or did not do. Must include the physician’s
rationale for critical decisions, facts must be correct,
and the record should not contain unresolved
contradictions. The medical record should be
appropriately altered should something need to be
changed.
• DO NOT alter the medical record after you receive a
notice of intent, subpoena or other legal document.
Medical records must be…
• contemporaneous, accurate, truthful, and
appropriate
• HOW?
▫
▫
▫
▫
▫
▫
Be honest and careful how entries are changed
Be objective
Be specific
Be legible
Be competent
Watch for patient cues
History and Follow-up care
• Medical history must be elicited and
documented
• Incomplete histories delay diagnosis; medication
errors can occur
• Medical issues identified one on visit are not
followed up on subsequent visits
▫ If action is deferred document why
▫ Always re-visit medical issues
▫ Document any courses of action or resolutions to
the medical issue
Patient Education
• Adequate education of the procedure, treatment,
or referral
• Oral education with documentation (adequate?)
• Formal consent process and informed refusal
process
• Written documentation
▫ Providing the written consent in advance
▫ Providing written educational documents
Patient Consent (a growing problem)
• What does consent look like?
• Written
▫ Patient explained about the right and obligation to
make informed decisions concerning patient’s care
▫ Description of the treatment/procedure
▫ Risks and side effects of the treatment/procedure
▫ Benefits of the treatment/procedure
▫ Alternatives to the treatment/procedure
▫ Risks and benefits to not undergoing or receiving
the treatment/procedure
▫ Patient responsibilities
▫ Photographs and recordings
Informed refusal
• Written
• Patients have the right to decline any treatment,
procedures or referrals.
• Physicians are obliged to explain the possible
consequences of refusal.
Labs and Prescriptions
• Diagnostic lab and imaging tests are not received
in a timely manner or acted upon.
• Must have an effective system for keeping track
of and reviewing labs and medications.
Mistakes Happen
• Report to USF’s Self-Insurance Program
▫ 974-8008
• Address it with the patient
Case study
• March 6,2001, 1:40 pm: 22 year old Maeurer was admitted by
Khoury to the ER for a severe asthma attack and seen by
Levine
• 3:00 pm: Maeurer was incubated and was in a severe state of
respiratory acidosis; carbon dioxide level of 90 and blood PH
of 7.03
• Transferred to ICU and examined by Conetta and Iakovou;
pupils were reactive to light and she could see; put on
respirator and in an induced coma
• Between March 6-18 anemia developed
• March 18: X-ray shows a collapsed lung
• Tubes inserted to inflate Maeurer’s lungs three times causing
episodes of oxygen desaturation
• April 10: Maeurer transferred to a different hospital where
MRI and CT scans indicated blindness and brain infarcts
Does it matter?
• 13 hours after X-ray was taken, the collapsed
lung was treated because Conetta stated he was
not notified of the condition
• Conetta took an x-ray and knew Maeurer was
blind but never notified the attending
• The resident claimed during a deposition that
they believed Maeurer may have been given too
much Norocuron and the residents contacted the
manufacturer about signs of an OD
Does it matter?
• BUT at trial the residents testified they did not
communicate with the manufacturer or think
Maeurer was given too much Norocuron
• Between March 7 and March 18, there is not a
single entry that the patients pupils were
checked?
Would it have mattered?
Facts not in evidence
• A drug that was administered to the patient was
recently part of a study?
• The study was published (1 day before? 1 week
before? 1 month before? 1 year before?) the
patient was treated?
The result
• Suit for delayed intubation; delayed treatment of
the collapsed lung and anemia AND LACK OF
physician supervision and communication
• Information gap between attendings and
residents
• Losses for: total blindness; pain and suffering;
economic loss; loss of future wages
The breakdown
• A settlement of $750,000 was negotiated with
Khoury
• A settlement of $1,950,000 was negotiated with
Levine and the hospital
• Liability apportionment
▫
▫
▫
▫
35% Conetta
30% for Hospital
20% Iakovou
15% Levine
Apologies - The American Medical
Association Code of Medical Ethics
• When a patient suffers significant medical
complications that may have resulted from the
physician's mistake or judgment, the physician is
ethically required to disclose to the patient all
the facts necessary to ensure understanding of
what has occurred.
• A physician's concern about legal liability that
might result from full disclosure should not
affect his or her decision to deal candidly with a
patient.
Apology Law – Florida
Hospital Duty to Inform Patients
• An appropriately trained person designated by
each hospital
• Inform the patient, in person about adverse
incidents that result in serious harm to the
patient
• Notification of outcomes of care that result in
harm to the patient do not constitute an
acknowledgment or admission of liability, or can
introduced as evidence.
Apology Law - Florida
90.4026 Statements expressing sympathy; admissibility; definitions.—
(1) As used in this section:
• (a) “Accident” means an occurrence resulting in injury or death to one or
more persons which is not the result of willful action by a party.
• (b) “Benevolent gestures” means actions that convey a sense of
compassion or commiseration emanating from human impulses.
• (c) “Family” means the spouse, parent, grandparent, stepmother,
stepfather, child, grandchild, brother, sister, half-brother, half-sister,
adopted child of parent, or spouse’s parent of an injured party.
(2) The portion of statements, writings, or benevolent gestures expressing
sympathy or a general sense of benevolence relating to the pain, suffering, or
death of a person involved in an accident and made to that person or to the
family of that person shall be inadmissible as evidence in a civil action. A
statement of fault, however, which is part of, or in addition to, any of the
above shall be admissible pursuant to this section.
How to apologize
• Get ready – know the facts and be prepared to
answer questions
• Find a suitable location, quiet and free from
distractions
• Listen and empathize
• Explain the facts
• Apologize –say your sorry
• Explain your role
• Discuss next steps
Other ramifications
• Certification
• Licensure
Most Importantly…..
• Contact the General Counsel’s office with any
questions or concerns.
• (813) 974-2131
• http://generalcounsel.usf.edu/