5/24/14 ¡ Disclosure � So You’ve Been Sued! � Now What ?? � Michael Jay Bresler, Michael Jay Bresler, M.D. FACEP M.D. FACEP � • I have no conflicts of interest to disclose � Clinical Professor � Division of Emergency Medicine � • I am pure � Stanford University School of Medicine � • The Scope of the Problem � • What Actually Happens in a Lawsuit? � • O.K. You’ve Been Sued. Now What? � • The Most Important Consideration � The Scope of the Problem � • You and Your Family � 1 ¡
5/24/14 ¡ The Scope of the Problem � The Scope of the Problem � 2010 ACEP � • Emergency Physicians are medium risk � Non-scientific survey of all members � • Sued about the same as the average physician - 10% response � 7.5% each year � Andrew L: Malpractice weighs heavily on EP’s . � • About 20% of suits result in monetary payout � Emergency Medicine News. � • Less than both the average and median September 2012, Volume 34, Issue 9, p3-4. � awards vs other specialties � doi: 10.1097/01.EEM.0000419526.26894.2a � (New Engl J Med 2011:365[7]:629.) � The Scope of the Problem � The Scope of the Problem � • > 50% had been named in a suit � • < Half had a copy of their insurance policy � • > 50% of these more than once � • < 15% had actually read it � • Only 29% of those sued were aware they had • About half did not know if their insurance been reported to the National Practitioner Data company could settle without their permission. � Bank � • The remainder were evenly split between policies • Nearly 90% of respondents said they practice that did or did not permit settlement without their defensive medicine � permission � 2 ¡
5/24/14 ¡ The Scope of the Problem � • 10% did not know if • 87% of those sued had not they had tail sought professional help in coverage, i.e. dealing with the stress � coverage if they left their group � • 73% were not aware of ACEP’s Standard of Care Review Process � The Scope of the Problem � The Scope of the Problem � • 2/3 not aware that • About 2/3 were not aware that all members - ACEP has including themselves - had signed ACEP’s investigated charges Expert Witness Reaffirmation Statement on against its members renewing their membership � regarding compliance with ACEP guidelines • Hardly anyone had used the Statement to for expert witness challenge testimony against them � testimony � 3 ¡
5/24/14 ¡ Some Basic Facts � • Medical malpractice is civil litigation � • It is not criminal litigation - you are not being charged with a crime � • You won’t go to jail! � • (unless…!) � Some Basic Facts � Some Basic Facts � Some Basic Facts � • Claims Made vs. Occurrence Insurance Policy � • Your are insured � • Know what you have! � • You will not lose money! � • If Claims Made - � • The judgment rarely exceeds the policy limit � • make sure your “tail” is covered… � • (unless….!) � 4 ¡
5/24/14 ¡ Some Basic Facts � Some Basic Facts � • Three requirements must be proved � The Standard of Care � • Violation of the Standard of Care � The basic concept, depending on the state statute � • Harm to the patient � � The care that should be rendered by a reasonably prudent physician under the same or • Proximate Causation � similar circumstances � • Your action - or inaction - must be the direct cause of the harm � Some Basic Facts � Some Basic Facts � National Practitioner Data Bank � State Licensing Board � • All judgments - and settlements - are reported � • Depends on the state � • You do have to right to submit your own statement disagreeing with the statement or supplementing the • Report may just be filed - or published � facts � • Your license may be called into question (rare) � • Has been a double-edged sword for plaintiffs’ attorneys � • Your malpractice insurance usually covers defense � • Less willingness to submit to extortion � 5 ¡
5/24/14 ¡ Some Basic Facts � Some Basic Facts � In California � EMTALA � Medical Injury Compensation Recovery Act � • Your policy will usually cover defense � (MICRA) � • If not, your attorney may charge you � • Limits on plaintiffs’ attorneys’ take � • Your carrier will not pay fines if assessed � • Continually under attack � � This year’s referendum � • Ballot Initiative to Overturn MICRA � Some Basic Facts � November 2014 � • Typical litigation from start to finish lasts 3-5 years � • Increased cap on pain & suffering from $250 thousand to $1.1 million - adjusted periodically for inflation � • Excruciating process � • So - Don’t get sued! � • Random drug and alcohol testing of physicians, as well as mandatory drug and alcohol testing of • Do the Right Things � physicians after unexpected patient death or injury � • Topics for another course � • Requires checking the CURES database prior to • Good care � prescribing certain controlled substances � • Good charting � • Requires doctors to report medical negligence � • Good communication � 6 ¡
5/24/14 ¡ OK � You’ve Been Sued � Car video � Now What? � O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � First thing to do after the warning � The Warning � • Review the chart - � • Do NOT alter it! � • “You know that patient you saw….” � • Notify your boss if you have one? � • Even before that - gut feeling, especially in middle of the night…. � • Notify your group? � • Notify hospital Risk Managent? � • Risk Management call - complaint by patient � • Notify your insurance carrier? � 7 ¡
5/24/14 ¡ O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � Letter from attorney - notice of intent to sue � • Better not to discuss with colleagues if possible � • First, stay calm. Maintain perspective. � • You will be asked whether you have discussed the case with others - and that conversation is • Now is definitely the time to notify � discoverable � • Your boss � • Your colleagues may be subpoenaed to testify under oath � • Hospital Risk Management � • A charge of collusion can be made if the colleague was involved in the case � • Your insurance carrier � O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � • Do not contact the patient! � • Do discuss the case with your attorney � • Do not accept calls from the plaintiff’s attorney � • Even though they are paid by the carrier, the attorneys are YOUR lawyer, not the carrier’s � • Refer their attorney to your attorney � • Do not hold back anything. They need to know all • Review the medical record but do NOT alter it � the negative aspects in order to defend against them � • Rarely - with the approval of your attorney - you • Communications between you and the attorney may add an addendum, clearly dated and marked as such � are privileged - they are not discoverable. � 8 ¡
5/24/14 ¡ O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � • You will receive the Complaint � • It will basically say your are the worst scum ever • Formal peer review proceedings are also born - and that your parents should be jailed for protected � not using birth control! � • Though rarely that has been overruled by a • Just laugh. This is boilerplate verbiage straight judge’s order � off a word processor. Sometimes you can tell because portions may not even be relevant to your case - or even your gender. � O.K. You’ve Been Sued. Now What? � It’s just business � • “Dr. X’s treatment of this unfortunate gentleman was cruel, callous, irresponsible, and grossly negligent, in failing to provide adequate intravenous analgesic for Mr. Y’s finger abrasion.” � 9 ¡
5/24/14 ¡ O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � What’s next? � • If the review is positive for you, consider - � • Case sent to expert reviewers, often more than • Motion for Summary Judgment � one � • i.e. Dismissal � • Wide range - from lenient to hard-ass � • With community hospital experience or academic “experts” � O.K. You’ve Been Sued. Now What? � O.K. You’ve Been Sued. Now What? � If you think your case is defendable - but the • If reviews are positive, the fight’s on! � experts don’t � • If negative, may be sent to additional reviewers � • Try to be objective. What would you think if this were not your own case? � • If still negative - what to do? � • Weigh the chance of winning against 3-5 years • Fight? � of angst. � • Settle? � • May be better to just settle and move on � 10 ¡
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