Miraca Life Sciences

The Pathology of Mistakes and How to Avoid Litigation

Medical Liability ABC’s

Negligence

• Plaintiff MUST Prove All Four of

These In Any Lawsuit

• Duty

• Breach of Duty

• Proximate Cause

• Damages

• Every lawsuit turns on the pivotal question – “What Is Standard Of Care?”

• Means pathologist has duty to “to act as an ordinarily reasonably prudent

pathologist under the same or similar circumstances.”

• When a pathologist falls below this minimum standard of care, the pathologist has

breached the duty owed to the patient and is subject to being sued

Standard of Care – Battle of the Experts

• The general rule has long been that expert testimony is necessary to

establish causation as to medical conditions outside the common

knowledge and experience of jurors. Jelinek v. Casas, 328 S.W.3d 526,

533 (Tex.2010)

• An expert witness must “explain how and why the negligence proximately

caused the injury.” Id., 328 S.W.3d at 536

• Absence proximate cause, no liability exists even if the pathologist fell

below the standard of care.

Proximate Cause – Battle of the Experts

• Three requirements for the admission of expert testimony

• (1) the witness must be qualified;

• (2) the proposed testimony must be scientific knowledge; and

• (3) the testimony must assist the trier of fact to understand the evidence or to

determine a fact in issue. See E.I. du Pont de Nemours and Co., Inc. v.

Robinson, 923 S.W.2d 549, 556 (Tex.1995).

Proximate Cause – Battle of the Experts

• Whether the trial court properly excluded expert testimony is subject to an

abuse of discretion standard of review, which means the judge’s decision

was arbitrary, unreasonable, or without regard to guiding rules and

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex.1985).

• “Rule 702's reliability requirement focuses on the principles, research, and

methodology underlying an expert's conclusions.” Exxon Pipeline Co. v.

Zwahr, 88 S.W.3d 623, 629 (Tex.2002); Tex.R.Civ.Evid. 702

Proximate Cause – Battle of the Experts

• A plaintiff may recover all damages proximately caused by the

pathologist’s breach of the standard of care

• Good news - Limits on recovery for non-economic damages (ie., Texas Medical

Liability & Insurance Improve Act limits recover to $250,000 for non-economic

damages) (ie., mental anguish, loss of consortium, ec.)

• Bad news – Typically no limits on recovery of economic damages proximately

caused by pathologist negligence (ie., lost wages, past & future medical care, etc.)

Damages

MEDICAL ERRORS ARE INEVITABLE

“…61% of doctors

55 and older have been sued”

Amednews.com - Posted Sept. 6, 2010.

http://www.ama-assn.org/amednews/2010/09/06/edsa0906.htm

Physician’s Chances of Being Sued

• Recent study of anatomic pathologists and clinical laboratory directors

found pathologists believed that errors occurred frequently among

hospitalized patents.

• 3% of patients experience a serious error;

• 12% of patients experience a minor error, and

• 15% of patients experience a near miss.

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Physician’s Chances of Being Sued

• The vast majority of pathologist who responded (95.2%) reported having

been involved with an error;

• 43.6% reported involvement with a serious error;

• 69.1% reported involvement with a minor error, and

• 77.6% reported involvement with a near miss

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Physician’s Chances of Being Sued

• Respondents disagreed about the causes of errors:

• 55.2% believed were caused by care delivery systems, and

• 44.8% believed were caused by individual error

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Physician’s Chances of Being Sued

DISCLOSING THE ERROR

• The respondents were near unanimous in their belief that serious errors

should be discussed with colleagues (95.2%), disclosed to patients

(97.0%), and communicated to hospitals (94.6%).

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Communication Is The Key To Avoiding Litigation

• Respondents’ beliefs, however, varied as to which less harmful errors

should be disclosed.

• 76.0% believed minor errors should be disclosed to hospital systems

• 72.3% believed minor errors should be disclosed to patients, and

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Communication Is The Key To Avoiding Litigation

• Of the respondents, 60.5% believed near misses should be revealed to

hospitals, and

• Only 20.1% thought patients should be informed of near misses

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Communication Is The Key To Avoiding Litigation

• First goal of ALL communication should be to minimize risk of litigation

• Do not try to handle potential claim on your own once it arises

• Lawyers should never try to diagnose themselves anymore than doctors

should try to defend themselves in medical malpractice claims

Communication Is The Key To Avoiding Litigation

• What do you do when an error gives rise to potential claim

• Report the potential claim to your insurance agent/broker

• Take advantage of pre-claims assistance offered Omnisure

Communication Is The Key To Avoiding Litigation

• The key to all communication is to be pro-active.

• Recognizing an issue early is the most important first step.

• Educate yourself & staff on facility’s communications policy

• If you don’t have a written policy, develop one immediately

Communication Is The Key To Avoiding Litigation

• Surprisingly, 24.7% (41/166) of respondents did not know whether a

formal error reporting system – such as an incident reporting or patient

safety program – existed within their organization

• More surprising, 28.2% (31/110) affirmatively stated they believed no

formal hospital reporting system was available to them

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Communication Is The Key To Avoiding Litigation

• Before communicating about a problem:

• Get your facts right the first time.

• Don’t assume anything.

• Be overly detailed in any written responses.

Communication Is The Key To Avoiding Litigation

• Disclose fully to the patient or patient’s family

• Patients and families expect full disclosure from their

physicians

• They believe it is the professional, moral & ethical thing to do

Communication Is The Key To Avoiding Litigation

• Of the pathologist surveyed who had disclosed a serious

pathology error directly to a patient, 88.0% reported satisfaction

with the results of the disclosure conversation

• American Journal of Clinical Pathology, 135, 760-765 (2011).

Communication Is The Key To Avoiding Litigation

• A 3-step approach to disclose to patient/family recommended:

• Initial Disclosure

• Investigation

• Resolution

Communication Is The Key To Avoiding Litigation

• Initial Disclosure:

• Doctors can say "sorry" and “emphasize” without admitting or assigning

fault for the error or occurrence. Be sincere. Don’t speculate.

• This is about empathy and re-establishing trust and communication

with patients and families immediately after an adverse event.

• Chose the right person to disclose.

Communication Is The Key To Avoiding Litigation

• Initial Disclosure:

• Never disclose before you have contacted your risk manager,

insurance carrier, and defense attorney.

• Always have a witness present when talking to the patient or family

after an error has occurred, especially if it caused harm to the patient.

Communication Is The Key To Avoiding Litigation

• Initial Disclosure:

• Document the disclosure immediately after the disclosure. If you don’t

document it, it didn’t happen.

• Stay professional. Be factual and not emotional.

• Include everything you said, questions asked by the patient/family,

promises made by you

Communication Is The Key To Avoiding Litigation

• Initial Disclosure:

• Promise a swift and thorough investigation.

• Should consider taking care of the immediate needs of the

patient/family like food, lodging, counseling, etc.

• The goal is to make sure the patient/family never feels abandoned.

Communication Is The Key To Avoiding Litigation

• Investigation:

• Stay in close contact with patient/family throughout process vital.

• Involve outside experts and moving swiftly to alleviate patient/family

fears about a cover-up.

• Treat the patient/family fairly throughout the process.

Communication Is The Key To Avoiding Litigation

• Resolution

• Share the results of non-privileged investigation with the

patient/family and their legal counsel

• Patient/family will get the results anyway if litigation proceeds

Communication Is The Key To Avoiding Litigation

• If there was a mistake

• Apologize & admit fault

• Explain what happened and how it will be prevented in the future

• Discuss fair, upfront compensation for the injury or death

Communication Is The Key To Avoiding Litigation

• If there was no mistake, continue to empathize ("we are sorry

this happened"), but clearly convey not at fault.

• Share the results of investigation (hand over charts and records to

patient/family and their legal counsel) to prove your innocence

• Convey clearly that no settlement will be offered and any lawsuit will

be contested because you did nothing wrong

Communication Is The Key To Avoiding Litigation

• State “Apology Law”

• Texas is one of 35 states allowing immunity when medical professional

apologizes to family members without the medical professional’s words

being used against them in court in subsequent lawsuit.

• TEXAS CIVIL PRACTICE & REMEDIES CODE 18.061(1999)

Communication Is The Key To Avoiding Litigation

• State “Apology Laws”

• Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia,

Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland,

Massachusetts, Missouri, Montana, New Hampshire, Nebraska, North

Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina,

South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,

Washington, West Virginia, Wyoming,

Communication Is The Key To Avoiding Litigation

• Texas “Apology Law”

(a) A court in a civil action may not admit a communication that:

(1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an

individual involved in an accident;

(2) is made to the individual or a person related to the individual within the second degree by

consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; and

(3) is offered to prove liability of the communicator in relation to the individual

Communication Is The Key To Avoiding Litigation

• Texas “Apology Law”

(b) In this section, "communication" means:

(1) a statement;

(2) a writing; or

(3) a gesture that conveys a sense of compassion or commiseration emanating

from humane impulses.

Communication Is The Key To Avoiding Litigation

• Texas “Apology Law”

(c) Notwithstanding the provisions of Subsections (a) and (b), a

communication, including an excited utterance as defined by Rule

803(2) of the TEXAS RULES OF EVIDENCE, which also includes a

statement or statements concerning negligence or culpable conduct

pertaining to an accident or event, is admissible to prove

Communication Is The Key To Avoiding Litigation

LITIGATION ACTION PLAN

• Create a “Claim File” at the first sign of a potential claim

(receive a subpoena)

• Gather & preserve all relevant medical records, reports, tests & communications. Do

not engage in “spoliation” of evidence

• You should develop & implement a written documentation retention policy

• Maintaining thorough & consistent documentation systems will prove invaluable when

issues eventually do arise

Communication Is The Key To Avoiding Litigation

• What do you do when an error gives rise to potential claim

• Report the potential claim to your insurance agent/broker

• Take advantage of pre-claims assistance offered Omnisure

Communication Is The Key To Avoiding Litigation

• Send clear message to everyone involved early:

• You have identified the error;

• You understand what caused the error;

• You are prepared to defend your position that you are not to blame

should a claim or lawsuit arise.

Communication Is The Key To Avoiding Litigation

• Respond quickly to combative emails from other medical

professionals involved who appear ready to shift blame

• Respond in writing

• Do not ignore accusations

• Be accurate, decisive & consistent

Communication Is The Key To Avoiding Litigation

• Stay professional – always!

• Take the high road whenever possible, especially during the

“Pre-Claim” phase.

• Never forget - everything you do, say, & write may be used in a

subsequent lawsuit.

Communication Is The Key To Avoiding Litigation

STAY OUT OF THE COURTHOUSE

Pathologists do not fair well when errors turn into lawsuits

Pathologists had lowest percentage of claims dismissed before trial

(36.5% v. 54% average)

Pathologist less likely to settle before trial

(49.6% resolved pre-trial v. 33.3% for internist)

Pathologists most likely medical specialty to lose a jury case

(7.4% compared to 4.5% average and 2% for anesthesiologists)

Pathology Litigation

Average time to resolve litigated claims

Claims dismissed by court – 20.4 months

Claims resolved pre-verdict – 28.5 months

Claims resolved at trial in favor of defendants – 39 months

Claims resolved at trial in favor of plaintiffs – 43.5 months

Pathology Litigation