Medical Malpractice: what every vascular surgeon should know

Transcription

Medical Malpractice: What You
Don’t Know Can Hurt You
O. William Brown, MD, JD
Chief, Division of Vascular Surgery
William Beaumont Hospital
Interim Chief, Division of Vascular Surgery
Wayne State University School of Medicine
Clinical Professor of Surgery
Wayne State University School of Medicine
Adjunct Professor of Law
Michigan State University College of Law
Friday, October 9, 2009
Components of malpractice suit
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Physician-Patient Relationship
Breach of the Standard of Care
Proximate Cause
Damages
Physician Patient
Relationship
Physician Patient Relationship
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Direct patient contact
Phone call
Social setting
Side-walk consult ?
Payment unimportant
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Guest at party asks vascular surgeon if 3
month history of leg swelling is significant
Surgeon states swelling unlikely to be
significant but suggests that individual see
her medical physician
Individual does not see her medical
physician and suffers a PE one week later
and dies
Was a physician patient
relationship established?
The law is what the judge
and the jury say it is
How Terminate Relationship
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Get fired
Physician withdraws from care after giving
sufficient notice to patient
Resolution of patients medical problem
Standard of Care
Breach of Duty
(Standard of Care)
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Expert witness
Defendant’s admission
Res ipsa loquitor (sponge in the
abdomen)
Plaintiff is a medical expert
Common knowledge (radiation of a
pregnant female)
“The existence of a medical
injury shall not create any
“The failure of a health care
provider to order, perform,
Standard of Care
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National standard
“Locality” rule only for hospital equipment
Standard of care is different for a resident
or fellow
Standard of care is the same for a general
surgeon and a vascular surgeon
performing a vascular procedure
Proximate Cause
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Patient dies on first post operative night
following an open AAA resection
At autopsy, retained sponge is found
No recovery for retained sponge since it
did not cause the patient’s death
Informed Consent
Informed Consent
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Diagnosis
Treatment plan
Risks and benefits
Treatment alternatives
Prognosis (with and without treatment)
Informed Consent
Must tell patient anything that could
affect patients decision whether or not to
proceed with treatment
Medical Malpractice
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Informed consent is NOT the same thing
as a consent form
Obtaining informed consent is a non
delegable duty
Cases
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Johnson v Kokemoor (individual MD experience
and results)
Open versus Endovascular
-Standard of Care for isolated 2cm
common iliac stenosis
-Standard of Care for AAA in 75 yr. Old
male with “perfect anatomy” for
endograft and history of CAD
Medical Records
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Anything written in preparation for
litigation is privileged.
Can not give records or discuss patient’s
condition with anyone unless you have
patient’s written permission. (This includes
patient’s attorney or another defense
attorney)
Medical Records
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“The Paper Trail”
If you don’t write it down, it didn’t happen
Take the time to write down your thought
process, not just your conclusions
Expert Witness
This is the single greatest
problem in medical malpractice
today.
Expert witness in Florida
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Must specialize in the same specialty as
defendant or
Specialize in similar specialty treating
similar patients
However last line of expert witness statute
states:
“This section does not limit
the power of the trial court
Medical Malpractice
Medical Malpractice
Are Vascular Surgeons who have completed
the certifying process through the
American Board of Surgery “Board
Certified”?
Medical Malpractice
Certified”?
Medical Malpractice
Certified”?
Yes
Malpractice Defenses
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Reasonably prudent physician
Error in judgment
Assumption of the risk
Contributory and Comparative negligence
Good Samaritan Acts
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Roadside
In hospital (Grodin v. Beaumont)
In OR
Joint and Several Liability
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Hospital Sponsored Insurance
Joint defense with the hospital
Pitfalls
Statute of Limitations
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Fraudulent concealment
Wrongful death
Conduct of a Medical
Malpractice Suit
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Complaint (Notice of Intent)
Discovery
-interrogatories
-discovery depositions
Discovery deposition
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“Nail down” defendant’s opinions
Witness evaluation
Relevant
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Anything that tends to make a material
fact more or less likely to be true.
Witness investigation
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Google search
Curriculum vitae
Past depositions
Past legal problems (medical and non
medical)
Attorney: “Now doctor, isn’t it true that
when a person dies in his sleep,
he doesn’t know about it until
the next morning?”
Attorney: “So the date of conception (of
the baby) was August 8th?”
Witness: “Yes.”
Witness: “Yes.”
Attorney: “And what were you doing at that
Witness: “Yes.”
Attorney: “And what were you doing at that
time”
Attorney: “You were not shot in the
fracas?”
fracas?”
Witness: “No, I was shot midway between
fracas?”
Witness: “No, I was shot midway between
the naval and the fracas.
Attorney: “Are you qualified to give a urine
specimen?”
specimen?”
Witness: “I have been since early
specimen?”
Witness: “I have been since early
childhood.”
Attorney: “Doctor, how many autopsies
have you performed on dead
people?”
people?”
Witness: “All of my autopsies are
people?”
Witness: “All of my autopsies are
performed on dead people”.
Attorney: “Doctor, before you performed
the autopsy, did you check for a
pulse?”
Witness: “No”
Attorney: “Did you check for blood
pressure?”
Witness: “No”
Attorney: “Did you check for breathing?”
Witness: “No”
Attorney: “So, it is possible that the patient
was alive when you began the
autopsy?”
Witness: “No”
Attorney: “How can you be so sure,
Doctor?”
Witness: “Because his brain was sitting on
my desk in a jar.”
Attorney: “But could the patient have still
been alive nevertheless?”
Witness: “It is possible that he could have
been alive and practicing law
somewhere.”
Deposition Testimony
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Maintain composure
Answer only direct questions
Answer only the question that is asked
Never try to educate the plaintiff’s
attorney
Be prepared
Lack of concentration
can be fatal
Conduct of Medical
Malpractice Suit
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Case evaluation
Settlement conference
Trial
“Perhaps the witness would like to
reconsider his answer to my question.”
Medical Malpractice
Can I sue the plaintiff’s attorney for filing a
frivolous law suit?
Medical Malpractice
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In general the answer is No.
Exceptions
1. Malicious prosecution
2. Law suits filed in violation of court
rules.
Medical Malpractice
Medical Malpractice
Medical Malpractice
Medical Malpractice
If I settle the case, am I admitting that I
committed malpractice?
Medical Malpractice
Medical Malpractice
NO
Settling a Case (Advantages)
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No
No
No
No
loss of time going to trial
risk of excess personal liability
admission of liability
finding of liability
Medical Malpractice
Best to Avoid Being Sued
Medical Malpractice
Can’t Avoid Being Sued
Medical Malpractice
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Know how to avoid obvious risk
Understand basic legal concepts of a
medical malpractice suit
Know when to “hold’em and when to
fold’em
and
Medical Malpractice
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Medical Malpractice: what every vascular surgeon should know

Transcription

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