Seeing our alumni at ACEP was amazing! It seems like Life after Residency is sweet: making your own schedule, working with great colleagues, no more pushing people to CT, developing startups! The sky is the limit but then there’s the inevitable question, the question that lurks in the back of my mind since days of yore: I’m gonna get sued!? (probably if I’m anything like 75-99% of doctors)
Here is a review of some of the highlights that ED physicians should know:
- Where do ED docs ranks in terms of malpractice claims compared to other specialties? According to NEJM 2011 we are rank about average at 7.5%
- What are the percentage of cases are withdrawn or dismissed? 64%
- What are the top reasons ED docs get sued? (1) Diagnostic Errors-approximately 37% (2) No error identified by provider’s insurer!!! (3) Improper performance of a procedure (4) Delays in admission, consultation…
- What are the top diagnoses involved in ED litigation? (1) Fractures (6%) (2) MI (5%) (3) Chest pain, not further defined…yikes! (4) Symptoms involving abdomen/pelvis (3%) (5) Injury to multiple parts of the body (3%) (6) Appendicitis (2%)
- How are physicians found to be negligent? duty (defendant aka provider owed a legal duty to the plaintiff), breach of duty (defendant breached that legal duty by acting or failing to act in a certain way) , causation (defendant’s actions or inaction caused the plaintiff’s injury), and damages (plaintiff was harmed or injured as a result of defendant’s actions)–>ALL 4 MUST BE PRESENT FOR PHYSICIAN TO BE FOUND GUILTY OF NEGLIGANCE OR MALPRACTICE
- The majority (81%) of claims that occur in the ER are not related to ED docs but other specialties either through direct care that they received in the ER or
- The majority of claims involve full-time (96%), male (93%) providers who are board certified
- The small number of cases that go to trial the verdict is often decided verdict in favor of the clinician
- Other important considerations: (1) relay important lab findings to patient even if incidental, even if patient left ED
- What’s the average time and costs for a case? 45 months/>$100,000
What to do to prevent litigation?
- Openly communication with patients
- Admit mistakes to patients, “Sorry you left the hospital but you need to come back”; patients want to be “heard” and therefore we need to show our concern. Michigan has done some progressive work with this approach termed the “Michigan Model” that has resulted in decreases in their malpractice claims and malpractice expenses
- Document like a maniac but now that you know the top reasons for being sued at least document on those issues
- Consent patients! Important that they understand what procedures or tests are happening/why
- Be Lucky! Or at least well prepared!
What to do if named in a case?
- Contact hospital risk management and/or PD if you’re a resident
- Contact insurance company (hopefully you have insurance)
- In the pre-litigation phase meaning patient has not filed a lawsuit but thinking about it talking insurance company/risk management team about early disclosure and expressing to the patient and family your remorse for the outcome
- Write correspondence to attorney about thoughts on case that can become part of medical record but do not directly alter the chart
- Majority of claims are dismissed
- The top 2 reasons associated with litigation include: (1) Errors in Diagnosis (2) No Identifiable Error
- Top Diagnoses associated with litigation: (1) Fractures (2) MI (3) Chest pain not specified–>DEFINE your chest pain!
- Openly communicate with patients and consent
- Contact others-Risk management/PD/Insurance company if named in a case
- If there is no formal claim consider addressing early disclosure with the legal team
- As a side note checkout www.foambase.org developed by our alumni Nupur Garg and Ben Azan to gain CME!
- Also checkout RoshCast started by our PGY3s Nachi Gupta and Jeff Nussbaum to review for the boards!
- Jena, A. B., Seabury, S., Lakdawalla, D., & Chandra, A. (2011). Malpractice risk according to physician specialty. New England Journal of Medicine,365(7), 629-636.
- T. Brown, et. al. An Epidemiologic Study of Closed Emergency Department Malpractice Claims in a National Database of Physician Malpractice Insurers. Academic Emergency Medicine, 17: 555-560 (2010)
- The Michigan Model: Medical Malpractice and Patient Safety at UMHS http://www.uofmhealth.org/michigan-model-medical-malpractice-and-patient-safety-umhs
- Bailey, R. 2011. The Litigators Lions Pit: The Top 10 Medical Malpractice Issues Every Resident Should Know. https://www.emra.org/publications/whats-up/the-litigators-lions-pit–the-top-10-medical-malpractice-issues-every-resident-should-know/
- Weinstock, M., Boudreau, E., & Taylor, J. EMRap. Medical Legal 101: Insurance. https://www.emrap.org/episode/august2014/medicallegal101