Medical Malpractice: What Every Physician Should Know

[00:00:00]okay good morning and welcome to Grand Rounds Grand Rounds have a slightly different flavor today and welcome to those who are kind of watching this on the webcast surgical Grand Rounds our surgical part we see of our Santa Grand Rounds but really I think the lessons you're gonna hear that bells going to talk about can be applied to anybody who's doing intervention since so it's a real pleasure to introduce dr. Braun he and I have known one another for a long time and he's a little different as you'll see he graduated from University of Michigan with a BA in philosophy completed a Medical School Wayne State and a surgical internship at Yale and then completed his general surgery residency at Medical College of Ohio it was one of the first two Vascular fellows actually ever trained at Mayo Clinic so hirsute he's a little different he's a graduate of Detroit College of Law so he's MD JD and as a member of the State Bar of Michigan he's a professor of surgery at Oakland University William Beaumont Hospital and Beaumont is very similar in many respects to Methodist hospitals kind of a big organization very active cardiovascular center and he's presently a vascular surgery program director and chief of the section of vascular surgery at Beaumont Hospital I won't go into his other accolades because we really want to hear what he's going to tell us so he gave a little presentation for the community surgeons last night I can tell you there's a lot of discussion and a lot of questions from our faculty and from fellows alike but some of the medical legal aspects last night he was talking about the various rules and regulations that govern our life in healthcare today it's gonna be a little bit more focused on on what we need to know about malpractice so belt thanks again for coming down pleasure well thank you very much Alan it's certainly a privilege and an honor to be here today when I was training when I first started my training if anybody had a problem with their heart they went to Houston and they saw a dr. DeBakey at Methodist Hospital if anybody had a problem with aneurysm they went to Houston and they saw dr. Crawford although the faculty has changed a little bit what hasn't changed obviously is that Methodist remains a world-famous center of excellent in cardiovascular disease and it's certainly my honor and pleasure to be here and speak to you here this morning I have no financial disclosures if you practice medicine there they say there are two things that are certain in this country death and taxes let me give you the third one you practice medicine long enough in this country you're going to be involved in a medical malpractice suit and so it's very important that you understand how the system works so that you can help your lawyer give you the best defense possible okay so if a lawyer wants to sue you for medical malpractice he's got to show four things if he doesn't show all four of these things the lawsuit has to fail first he's got to show that there's a physician patient relationship - he's got to show that you breached the standard of care three proximate cause means what you did actually caused the damages to the patient and for damages it sort of works on a playground basketball rule no harm no foul okay physician patient relationship how do you get a physician patient relationship well obviously a patient comes into your office you see them you examine him you got a physician patient relationship you get a consult in the hospital you go see them you got a physician patient relationship well what if you get a call at night from the emergency room physician or your resident and they call you up and they say dr. Brown I got a guy down here got a problem with his foot I think it's okay why'd you come in and see him in the morning and I you don't have to come down and I go great and I go back to sleep next morning I go in the foots dead and I go well looks like you got a problem but I never saw the guy so I don't have a relationship with a guy that's wrong okay I have a relationship once you take that phone call from the ER doctor and accept that patient to talk about that patient or from your resident you now have a physician patient relationship with that patient as far as social setting I'll talk about that and Senate and in a minute sometimes in social settings you could end up getting a relationship or the court did could determine that Sidewalk console right what's a sidewalk consult well I'll be walking down the hall doctor come up tune and say you know well I got this guy who's got this this and this what would you do how would you take care of it and I go well you know if I saw that patient I'd probably do a B C and D and he goes oh thanks I appreciate that he goes back to the chart knee writes down thoroughly discussed case with dr. Brown who's chief of vascular surgery and he suggests we do this this this and this okay I mean I had no idea that that's going on and suppose what I suggest it doesn't go very well do I have liability and the answer is no I have no liability because I have no physician patient relationship I didn't see that patient I didn't talk to him I wasn't consulted on the other hand if I'm walking down the hall and he says to me hey would you just put your hand on this guy's abdomen and see what you think and I go in there and I put my hand the Avenue come that's okay now I own him because I got my fingerprints on it okay so the point is is that now I do have a physician patient relationship last thing is people talk why I didn't charge the guy I mean I saw him and I didn't charge him anything and I took care of him I hadn't have a relationship that's absolutely false so the important thing to remember is you're getting sued anyway charge everybody okay all right this is what I was talking about in a social setting this is a case actually that that occurred there's a guest at a party as this vascular surgeon said you know I got a three month history of swelling in my leg is that significant and the surgeon says well you know you've had it for three months it's probably not significant but you probably ought to go see your doctor now the individual doesn't go see your doctor because she says well he told me it's probably okay when we cleared a patient out of PE and died so now the question is was there a physician patient relationship established everybody would argue back and forth we would argue no I didn't see him in the office I made a little comment at a party I didn't have a relationship plaintiff attorneys gonna argue wait a minute she relied on you you told her it probably was okay so she didn't even go see your doctor so again this is what's different about the law there is no black and white everything or almost everything is gray okay well once you got this relationship how do you get rid of it okay number one you can get fired now many of you younger people out there say no I'm a great doctor you know I'll never get fired trust me you will be fired and in some cases you'll be very happy you were fired okay you two probably don't understand right now either but you can get fired that's one way second thing is you can withdraw from care after giving the patients sufficient notice so in other words you do the patient says a vascular surgeon I do is carotid and the guys are really difficult to take care of and I just don't want to take care of him anymore okay I can after a period of time when he's okay say to him you know what this is not working out you need to find another doctor I can send them a letter and say you know you need to find yourself another vascular surgeon what I can't do is get a call on that guy you know a year later or six months later he's in the ear and they say dr. Brown your patient mr. so-and-so has got a ruptured aneurysm in here I can't say you know what I didn't like that guy the first time I took care of him I'm not taking care of him now get somebody else to take care of him that I can't do okay I've got to get him sufficient notice and there's some question about resolution of patients and medical problem if I did it's quite at five years ago is he still my patient again subject to interpretation and argument all right standard of care we're always talking about the standard of care and if you ever give a deposition you talk they're gonna ask you doctor how do you define the standard of care the legal definition of standard of care is what the ordinary physician would do under like or similar circumstances all right it's not what the average physician because obviously by definition if it's what the average physician would do fifty percent of physicians are committing malpractice every day okay so it's not average physician and it's not the best medical care it's what the ordinary physician would do under those kind of circumstances all right well how do we establish the standard of care well most of the time it's done with an expert witness you bring in an expert who is an expert in the field and says hey this is what should have been done the doctor breached the standard of care you can also stay up by the defendants saying yeah i breached the standard of care that's obviously the least common way that it's established okay somebody doesn't come in and say yeah I violated the standard of care there's res ipsa loquitur which there's the Latin it speaks for itself if you leave a sponge in somebody's abdomen you don't need an expert to say that that's negligence all right plaintiff the plaintiff himself can be a medical expert and that can be established and finally is common knowledge all right if you have a patient who's six weeks pregnant and you decide you know I think I'll get a little information let me start doing x-rays from head to toe and I don't think I need to shield her at all obviously everybody knows you can't do that that's common knowledge and that can establish the standard of care the standard of care is a national standard the national your standard of care here in Texas is the same as it is for me in Michigan is the same it is for a little town in the Upper Peninsula of Michigan the standard of care is the same all across the country now what does different differ a little bit it's what we call the locality rule and though Kelly rule usually has to do with hospital equipment so if somebody comes in and says there's a small little hospital and somebody comes in says you know you should have had 128 sliced CT scanner of this patient and then you would have known and made this diagnosis it's perfectly reasonable said wait a minute I barely got an x-ray machine up here in my little hospital I don't have these kind of equipment and that's a lie about that you can say the standard of care is different for fellows and for residents than it is for attendings the other biggest problem with standard of care is to keep changing it it's a very fluid type thing and it just I give two examples here you got a patient who has an isolated two centimeter common iliac artery stenosis 90% short segments enosis like that and they're not calcified I mean it's just a straightforward now if someone was to do a femoral femoral bypass on that is that outside the standard of care or an iliofemoral bypass is that outside the standard of care and the truth is in this day and age it probably is it probably is no longer within the standard of care something I grew up with and I did all the time as a resident and as an attending in my early years is probably now outside the standard of care so if that patient had an MI following a FEM fem he's probably gonna have some trouble justifying that similarly you got a patient who's got 75 years old he's got perfect Anatomy for a stent graft okay for an aortic stent graft with an aneurysm and he's got a history of coronary artery disease could you do that guy open well years before we could do him open today I would argue that you can because the ordinary vascular specialists at this time would do this patient with an endo graft so again it keeps changing proximate cause all right proximate causes again what you did has to cause the problem again this is another case taken from the casebooks patient what happen was they get an aneurysm on the patient patient died first post-operative night following this open resection they get an autopsy on the patient they get a patient suit they did an autopsy on the patient they found a sponge in the abdomen well there is no recovery for that retained sponge because that didn't cause the patient's death so again what you did actually has to cause the damages that they're alleging all right informed consent another thing we like to talk about unfortunately this is the approach that a lot of people take to inform consent and it's not only just physicians but it's also patients you'll have patients who are coming in office well okay listen I'm gonna do your aortic aneurysm let me talk to you about their I don't want to hear about the risks I don't don't tell me about the risks or you'll hear you'll be taking care of the patient the patient's 75 80 years old and the siblings a child who come in patients childhood come in and say don't tell mom and dad about any of the risks they really can't take it all right don't listen to the child tell them about the risks okay you have to tell them about the risks so how can you do that how do you document that well some people love this little phrase risks and benefits discussed and that's all they put in let me assure you that does not constitute informed consent any good attorney will look at a note and see that it has all these components number one you got to put down the diagnosis number two you got to put down the treatment plan what you're gonna do for them number three you got to put down the risks and benefits of that treatment plan for he got to give him all the treatment alternatives and the risks and benefits of those alternatives and 5 you got to give him the prognosis with and without treatment that's informed consent you have to tell a patient anything that could affect their just their decision whether or not to proceed with treatment and that's the underlying theme anything that could affect their decision whether or not to go to undergo the procedure now interestingly I'll have in Texas you have this disclosure panel and they decide does the procedure require a specific informed consent what constitutes informed consent and you have to then once you have written that down you've got to give it to the patient and they have to sign it and it has to be witnessed now for example I look this up on the panels literature open surgical periodic subclavian and iliac artery aneurysms or occlusions and renal artery bypass what has to be included according to the panel you have to put down hemorrhage paraplegia kidney damage stroke acute myocardial of a graph what was very interesting to me was you don't have to list death yeah which I thought was very interesting I did look under coronary artery bypass grafting and you do have to list this but that's there so it's okay I guess to list that as a complication but that shouldn't be a complication or an aneurysm that's an unacceptable complication of death which was a little frightening to me and made me glad I don't practice here because that could be a problem one of the other things about informed consent is how much do you have to tell the patient about your experience and what you've done this is again a very classic case I used to teach from my law school class Johnson versus Coco Moore dr. Cole Kumar got out of his training program is a neurosurgeon and he went into practice in a community area patient came in with a posterior cerebral aneurysm they said to dr. coca where do you do this Jim he said oh man I had done plenty aneurysms I've done plenty of cerebral aneurysms well in fact he had never a posterior cerebral aneurysm he had done a bunch of anterior cerebral aneurysms and he figured well they'll never know the difference aneurysm his aneurysm so I'll just tell him I did a bunch of aneurysms okay well what happened is the patient didn't do well obviously and he sued and the court said you know what you have to give a patient especially if they ask what your experience is so if they said how many of you done or what have you done you have to be truthful with them and tell them and if you don't if you're not truthful with them then you have not given them informed consent now for the younger people who are just getting ready to go out and practice you know it's not like a patient comes in and they say to you when you're first in practice well dr. Brown have you have you done carotid surgery before no I haven't really done it in practice you're gonna be my first one and I'm really excited about doing this okay you don't have to tell them that okay because you're allowed to count count your training but if someone says to you you know how many of these difficult cases all right you do have to be truthful or you have not given them true informed consent okay another thing is and again this is a distinction that very few people know informed consent is not the same thing as your consent form that little form that they sign right before they go into the operating room for a surgery or for the cath lab or whatever is a consent form that protects you against criminal and civil battery it has nothing to do with malpractice per se it can help in malpractice but it protects you against criminal and civil battery so why is that important well why that's important is is that your malpractice insurance doesn't cover civil battery so if the plaintiff attorney decides hey you know what I can't really prove negligence I can't get an expert but I can prove a civil battery and the court says well you know that is a battery there was no consent form we're gonna find for the plaintiff three hundred thousand dollars that's coming out of your pocket your insurance company is not paying a dollar of that so again make sure you have both informed consent and a consent form again one of the things that we talk about here is obtaining informed consent is a non-delegable duty there may be some question about this but most core are pretty consistent that don't send your resident in to get informed consent don't send your fellow really don't even send your partner if you're doing the procedure you go in there and get the consent okay now as far as medical records go anything written in preparation for litigation is privileged I will occasionally see patients who I just know are going to be a problem sometimes anybody's practice for any amount of time can talk to certain patients and you just see the buzzsaw coming down the road you know you can just talk to this basic girl this is gonna be a problem I know this is going to be difficult so you can write down anything you want in preparation for litigation and you just put a little note I just keep it usually in my desk I don't put it in the electronic medical record so I just keep it a little chart my office and I can put down patient did this patient did that etc etc etc if there comes to litigation I have the option of either showing that to somebody or not showing it to somebody okay I it is not discoverable and I usually will do that if I'm concerned about this this is going to be a problem because it's very difficult for and if you have been involved in this two years later you get this lawsuit and it's usually from somebody who you thought you did a great job for and you're trying to remember what what went wrong here what happened here and so it's nice to have notes like that you also can't give records to discuss patient's condition with anyone unless you have the patient's written permission so a lot of times you'll get a call say you took care of a patient and another doctor took care of a patient and the other doctor got sued and you didn't his attorney or her attorney will call you up and say yeah this is terrible what we're going to get this plaintiff we're working together on this right no okay as I say a little bit later medical malpractice is not a team sport it is an individual sport it's everybody for themselves okay now in Texas the law states that you have to the patient has to give a medical release when they file the lawsuit so they have to give a release for all for all release of their medical records so basically you could do that but I would suggest that you don't talk to anybody until you talk to your counsel before you give away any kind of information even if you're not in named or involved in the suit okay medical records are basically the paper trail and I always tell my residents and fellow if you don't write it down didn't happen you got to take down the right down your thought process not just conclusions we're all busy we all sometimes can't find a computer at least in the old days you know you had the chart in your in you wrote a little something at now you got to go find the computer and you got to sit down and you got to log in and you got to do this it's worth it take the time to write it down let me give you an example you got a patient comes in emergency room they got a four centimeter aneurysm and they've got some abdominal pain the back pain so you examine them and you go well the back pain is I don't think this is anything I think maybe they reach but you know what it's got a four centimeter I'm just gonna bring him into the hospital and I'll keep me in overnight me and see what goes on alright so now you bring the patient in the hospital you can write one of two notes first no patient has a known abdominal aortic aneurysm and back pain will admit and observe it's basically what you're doing or you can write this note patient has a known abdominal aortic aneurysm back pain although back pain can suggest possible expansion or rupture I do not believe patients aneurysm is symptomatic however will admit and observe situation discussed with patient and family all state they understand and wish to proceed with present treatment plan when that guy ruptures at 2:00 in the morning which note do you want to have on the chart okay it's not hard to figure out all right office practices and I I make this comment because I have seen cases in review cases document phone conversations with other physicians okay if you're a surgeon and you call a medical doctor and they say hey can I go ahead and do the guy in the medical doctors yeah yeah go ahead he's fine you can go ahead and do it alright this was actually a case that happened he said yeah there's no problem go ahead he's cleared patient had a problem postoperatively medical problem postoperatively they asked the medical physician did you clear this guy there was nothing in writing he said I might have I don't I don't have a note I don't really remember so as I say once the law so start calls the colleagues develop amnesia they don't really remember they don't say they didn't but they go yeah I'm not sure I did okay don't be in that position make sure you get those things in writing make sure it in terms of your notes make sure that they are legible now we don't have so much trouble with writing but you got to make sure they're clear and concise people are looking at they're reading your notes they are a reflection of you these a couple of notes I'm going to show you our actual notes that were taken out of charts okay patient was shot in the head with a 32 caliber rifle chief complaint headache really okay patient referred to a hospital by private physician with green stools doesn't sound great patients been married twice but denies any other serious illnesses that's more or less funny depending right here on your situation this is one of my favorites mica status of vaginal suppositories number 24 insert until exhausted okay again you don't want to have these kind of things on your chart all right Good Samaritan X another thing that you need to know about is Good Samaritan when people think of Good Samaritan we think of Good Samaritans the roadside people being on the road and you know stopping Good Samaritan acts can also apply in the hospital and they can apply in the operating room a very famous case they actually happened to involve my home institution Beaumont Hospital Grodin versus Beaumont hospital patient came in the emergency room from a car accident they needed a general surgeon and what happened was the general surgeon they couldn't get ahold of them so there was a general surgeon walking through there and they grabbed him okay and he said you know we can't get the alcohol could you take care of this guy he was not on call he had no duty to do it he took care of the patient because he had no duty to do it and he was not on call he had no liability okay he was a good Samaritan we often get called as vascular surgeons you know can you come down to room six we got terrible bleeding we can't control if you are not on call then you have no liability now in the state of Texas there is some little caveat says for expected remuneration you could have liability however the argument would be hey you didn't expect any remuneration you just went in to save the guy's life if you get paid for it that's great but you didn't see the guy preoperatively so you didn't expect to get paid for it I would be happy to go in front of any jury and say yeah I went in and I saved this guy's life and he got a wound infection I don't know a jury that would find you liable for that and so again I think that you do have protection for those types of things as long as you're not on call if you are on call you now have a duty and so now all that comes down the only thing that you still will be liable for is what we call willful or wanton acts wool or wanton acts sour things such as suppose I say this guy's life and I say you know what I want this guy to remember I saved his life so I carved my initials in the bottom of his abdomen over here okay that's willful one okay then I'm going to be subject to liability for but aside from that you're really not going to be subject to any kind of liability again as I said medical malpractice litigation is not a team sport and this is a cartoon I love it says basically I think you read it what everyone check to see if they have an attorney I seem to have ended up with to anybody who's been involved in medical malpractice litigation each doctor has a lawyer the hospital has a lawyer all kinds of they're all kinds like it's just you and your attorney and again this is not a team kind of thing it's everybody for themselves okay now in Texas specialist specific liability everybody according to statute has to have 200 $600,000 malpractice insurance usually each party is responsible only for the percentage of their liability so if there are three doctors and the jury says you're 30% you're 40% your are you know 20% or 30% okay fine everybody pays their portion however if you have more than 50% liability you can be held in terms of joint and several liability which means you're responsible for the whole thing and they tell you okay you're paying everything you go after the other guy all right so again it doesn't really affect us the people who really get nailed on this or the hospitals okay because if the guy doesn't have insurance if the doctor doesn't have insurance and the hospital is supposed to they say well the hospital is 60% liable if the physician doesn't have insurance a lot of times the hospital will come a hundred percent liability therefore that's why you have to have to six insurance because the hospital is tired of holding the bagging and you sort of can't blame them about their statute of limitations statue limitations usually is about is two years in most places it has various it changes one thing however is it different in any state and that it's fraudulent concealment if you don't tell the patient something happened the statute of limitations is forever so in other words you're doing an aortic aneurysm you're doing it open which is for most of us a historic operation you know of interest only we're doing it open but so you're doing an aorta open and you get into the iliac vein okay get in the iliac vein you put a stitch in it and it's better that's fine you don't really even have to put that in the operative report you don't really have to do anything with it however if you get into the activate and you transfuse them ten units of blood you probably ought to tell that patient and the family that that's what happened if they have a complication from that at a later date and you don't tell it you have fraudulently concealed that and they can come after you two or three five ten fifteen years after that so make sure you tell patients about those things again wrongful death the only reason I put that up here is because with wrongful death people say well statute of limitations over a patient died but it's two years I'm free you may not be free sometimes it takes time to get letters or what we call letters of authority to get the person who's gonna represent the estate so it may be longer than two years if you do have a wrongful death case okay so what happens with a malpractice suit what's the actual kind of how does it go from A to B to C alright well first thing you're gonna have at your hand is pre suit investigation the lawyer is gonna go out and he's gonna get an expert and he's gonna try to establish a standard here and get an expert said you did something wrong the next thing is you're gonna get what we call basically a Notice of Intent and you do have this in Texas so basically what this is what I like to refer to as people say okay sort of almost like a stick up letter either pay me money now or I'm gonna sue you and that's really basically what this part it is is that you either gonna have to if you want to pay me something right now then I won't file a suit against you but I'm sending you this notice that I'm gonna sue you what you have to remember about this Notice of Intent is they don't have to have an expert to do that now they can have an expert that said maybe or whatever but they don't have to name an expert so theoretically they could say they're going to sue you and then not sue you so when you get a notice don't all of a sudden start preparing for trial because it may never even go to a complaint second thing is then the third thing is you get the complaint now the complaint any of you have ever read a complaint it makes you look like the worst human being in the world they list all these terrible things they negligently let my patient die on the table and never tried to lift a finger and they could have saved their limey nits just horrible to read you should read it but it's it's painful to read and you know and you get angrier and angrier as you're reading this thing then you have the interrogatories and what happens is in the interrogatories the attorneys get to ask questions they want to try to get information so I'll send you a list of questions and they will send you almost any kind the courts are very lenient unfortunately about letting them ask you pretty much whatever they want to ask you so and and lawyers let me tell you lawyers are there are as lawyers that are not so smart but there are a lot of lawyers that are very smart and very good at what they do and so they ask questions the proverbial question do you still beat your wife tough questions answer okay I mean no I don't anymore or yeah I do I mean you know so you have to be careful how you answer these questions and then you do the discovery depositions okay everybody's trying to in a discovery deposition they want to nail down what the defendants going to say at trial because nobody likes surprises the classic teaching in law school is don't ever ask a question that you don't already know the answer to okay that's the law school teaching and basically what they're trying to do is they're also trying to evaluate you as a witness they're trying to figure out are you going to get rattled are you going to get angry are you going to present well to a jury so that's why they do these discovery depositions before they do these discovery depositions if they're good attorneys they'll do their homework they'll go to Google and they'll search your name and they'll look and see if there's anything there in Google they will check your CV and see if they're what's on there they'll read all of your past depositions to see what you've testified through to in the past they will get all past legal problems in Michigan we have a thing called MIP which is a minor in possession he had a cute is under 21 and he has a drink it's caught by a police they give him a minor in possession that's come up at depositions for medical malpractice when you were 18 weren't you busted by the police for drinking alcohol at a beer party yeah okay you know I mean but they will bring up anything and everything one to try to make you look like the worst human being in the world and number two is to rattle you and to sort of put you on edge however the huge advantage that you have is that no matter how much an attorney reads no matter how many experts he talked to he or she can never know as much medicine as you do and that's the advantage that you get they can never know as much about your field as you know but that doesn't mean that you know that they don't think they do and they don't try to show how smart they're so let me give you again true questions these are questions that were asked at trial 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 okay attorney so the date of conception of the baby was August 8th yes and what were you doing at that time you are not shot in the frakerz no I wish at midway between the Freitas and the navel are you qualified to give a urine specimen being qualified since childhood to give a urine specimen doctor how many autopsies have you performed on dead people all my autopsies are performed on dead people this is my favorite doctor before you perform the autopsy did you check for a pulse no to check for blood pressure no to check for breathing no so it's possible that the patient was alive when you began the autopsy no well how can you be so sure doctor well because his brain was sitting in a jar on my desk but you see they don't give up but could the patient still have been alive nevertheless and this is my favorite it's possibly could have been alive and practicing a lot somewhere that's one of my favorite responses of all time okay rules for giving a deposition maintain your composure it's just like if you're a surgeon in the operating room if you're a cardiologist in the cath lab you've got to maintain your composure you've got to answer only direct questions a lot of plaintiffs attorneys will say to you so what do you think happened and what they're doing is just sort of fishing they want you to sort of say something that you know they they can twist around and make it sound so just answer direct questions and answer only the question they ask okay yeah I ask you a question you answer you answer that question if they say what do you think happening say well I don't know what you mean what what do you mean what happened what what do you want to know and I'll be happy to answer any question never try to educate the plaintiff's attorney this happens so often doctors think you know if I just make this guy understand he'll drop this case he just doesn't know that I did the right thing I just gotta make him understand then forget it it ain't and you will never make him understand all right so don't try to educate the plaintiff's attorney there are things that I've had cases where a plaintiff attorney so dr. Brown this doctor in this case that you reviewed he did a bypass from the femoral artery to the popliteal vein and this was what happened and I'll go no he didn't know so now he's all crazy well what are you talking about this whole case he says and then usually unfortunately the defense of Tennessee did you mean popliteal artery and I guess oh yeah yeah popliteal artery goes oh yeah yeah he did do a bypass to the popliteal artery so I offer nothing to these people in terms of I don't help him out one iota and I would suggest that you don't either answer what he asks you and that's it and again be prepared it's been said and again this is I think are really true quote more cross examinations are suicidal than homicidal okay again be very very careful lack of concentration like anywhere in medicine can be fatal as far as the conduct of the rest of the trial then you usually have a case evaluation settlement conference and then the will or will not go to trial if you don't settle when I get asked all the time is can I sue the plaintiff's attorney for filing a frivolous lawsuit the answer that is in general no now if they if you want to file a case for a malicious prosecution you can occasionally do that or lawsuits filed in violation of the court rules yeah you can sometimes do that but basically you can what you can do and again it's really a little bit more than we would need to go into today what you can do though is go after that expert witness and make sure you take that expert witness and send in something to your society that says hey this is what this guy testified to I really think this guy should be investigated and really probably ought to be kicked out of society that you can do and you should do another question I always get asked if I settle a case am i admitting that I committed malpractice the answer to that is a definitive no you are not admitting malpractice basically what you're saying is I don't want to talk about it anymore okay I don't want to talk about it you get you pay so much money it's over I didn't commit malpractice but I don't really want to go through this now what's the advantages of settling a case obviously there's no loss of time going to trial what's it gonna cost you as a clinician to go sit in trial they got to pick a jury then you got to try the case how much is that gonna cost you and you've already paid your malpractice insurance so you've already put that money out there so you want to spend more money on top of that by missing your practice that's something you have to think about there's no risk of excess personal liability you know where'd you go into this and you go to trial and the guy says well okay I'll settle for you know a hundred thousand 50 thousand seventy-five thousand and say it's a death case but you didn't do anything wrong that jury could say well this guy was young and he died we're gonna find for two million dollars or whatever now you have not only lost your malpractice you've got to pay out of your own pocket so you got to be careful that you don't want to subject yourself to excess personal liability if you settle a case you are not admitting any type of liability and in fact there is no finding a liability you've got to remember that if you go through the end of the to the end of the case and you are found liable that sticks with you forever so somebody says yeah have you ever been involved in a mout play yeah I was found guilty of being negligent whether you were you're won't that sticks with you forever so again I'm not telling you to settle every case because I would not settle every case there are certain cases that you should go to trial and see through to the end what I'm saying to you it's a business decision unfortunately a lot of physicians will go I'm going to court I'm gonna defend my reputation you know I I don't want anything I want to have this blemish on my medical reputation don't be silly you're in business this is a business decision make the smart business decision and not an emotional decision so obviously the best thing to do is to avoid being sued the problem is you can't avoid being sued so what do you do well you know how to avoid obvious risks the types of things that we've talked about here this morning you understand the bagel basic legal concepts of a medical malpractice suit and how you can help your attorney you again know when to hold them and when to fold them when you're going to go to court and when you're going to say you know what let's settle this case and let's get on with my practice and then finally and most important document document document document document the more you document the better off you're going to be again Alan thank you so much for the invitation I appreciate it thank you Bill I'm gonna start taking some questions let me ask you a couple of questions first of all and that was a statement you made last night he said we thank plaintiffs attorneys of the problem you said no plaintiffs attorneys are not the problem once you elaborate of that a little bit as we as we went through here in the beginning I talked about the four components and the first component is there is that our second point you have to establish that the physician violated the standard of care well how is that done in over ninety plus ninety five percent ninety eight percent another physician has to go in there and say they violated the standard of care the attorney can't file the case if he doesn't have somebody who says hey this guy committed malpractice so in truth it's your colleagues it's not the plaintiffs attorneys who are causing this problems it's your colleagues who are saying this is malpractice so that's why I strongly believe that this is misplaced there's anger at the plaintiffs bar and the plaintiffs attorneys they don't know one way or the other whether it's malpractice or not as an attorney your duty is this you have a client who comes in and says I've got damages okay and they've got a physician patient relationship and you now have a physician who says yeah I'll testify you now have an obligation as an attorney to take that case I got a patient I had an operation at a procedure they had a complication I got an expert who says it's negligence if I turn that down I'm committing malpractice as an attorney now I can send it away to another attorney and say hey there's I think it's a good case but I'll go somewhere else but again so the focus has to be on our profession the meta at my one of my professions the medical profession and not the legal profession so sure those questions well would your hand off you've got a question so we get the microphone to you but one other things while we're doing this bill was you're really strong about societies and the role of the expert witness them you want to really comment why you think societies in general fail to help police this and I would suspect that many of you who have been involved in litigation or whatever once the case is over and you've won or prevailed you go okay great you're happy how many go on now and go and take that expert witness who testified against you and said things obviously that weren't untrue and then pursue that send their name to the medical board send their name to the society very few people do it almost nobody does it because they're so glad it's over they just say oh okay it's fine it's over I'm out I don't want to worry about it but what happens is is that person keeps doing the same thing over and over again to your colleagues and the only way to stop them is to get them censured or kicked out of their National Society there is precedent for this there was a doctor a neurosurgeon in the American Society logic surgeons who was testifying falsely against neurosurgeons and to their credit two or three neurosurgeons went to the Society and said listen look at this deposition testimony this guy's obviously lying he's not telling the truth we want him kicked out of society Society looked at it and they kicked him out of the Society for six months he went to what happened was he then went to and sued the Society saying that they kicked him out because he was testifying against doctors it went to the Sixth Circuit federal court and the judge in that case said not only is it not only they allowed to do it not only the Society allowed to do that it's their responsibility to do that so there is precedent you gotta remember it you may not seem to severe well they kicked him out for six months okay they kicked him out for six months but he's now done as a neck for a witness because every time he goes to testify the defense attorney says well doctor you ever been kicked out of a society for testifying falsely goes yeah okay fine no more questions you know if you're sitting on a jury what do you think they're gonna think you lied once it is a question about more about outpatient practice and something that has always bothered me patients we treat a lot of patients for chronic management preventive medicine somebody has high cholesterol high blood pressure lot of risk factors he sees me once or twice I give him advice medication change of lifestyle extra then it disappears it doesn't show up for next year I kept keep hoping he'll come back two years pass whatever and then he has an adverse event my question to you and you know it's a societal question too is who is responsible my physician am I supposed to run after them and drag them back to the office or is it their responsibility to make sure that they follow up yes the best way I can answer that is unfortunately a little bit of both and the reason I say that is this you have this patient and it depends obviously how urgent the follow-up is in other words the patient has a blood cholesterol of 700 or something like that you know or whatever if it's very urgent or emergent they got to come back in a a week or two that's one thing but just in general follow-up they have the responsibility your responsibility comes in and you say okay you see this patient he change his blood pressure medication it's very high and he's proposed to come back in a week or two weeks and he doesn't show up you have the responsibility to have you know he's on your list there he doesn't show up you have a responsibility to have your office call that guy and say listen you know you had an appointment today you didn't show up and he doesn't answer whatever now you write in the chart patient told or call patient and again reminded him you're now done you've now fulfilled that responsibility on your initial note and the chart what you need to say is have explained the patient the serious and in fact life-threatening contact of him not following up patient states that he understands so really you're just again laying a foundation laying a record and saying hey I told you and in fact even called you once and you didn't show up you really pretty much then have no liability anymore you're now out of the loop and I don't think again I can't think of any cases where a physician has been found liable for not following up repeated times we have multidisciplinary conference between surgery interventional cardiology structural disease which are now you know recommended for complex interventions whether it's babbler or coronary and there's multiple opinions that are raised and we don't always reach a consensus obviously the surgeon and the cardiologists are seeing the patient are going to end up making the decision but should these be should these conversations be documented or is anyone liable at any point well those conversations absolutely should be documented and the cardiologists who makes the decision should say listen we discussed these we discussed this case these possibilities were raised interview in evaluating this I believe that this is a best approach some people have the erroneous belief that you know what's suppose you have a way they talk about three ways of treating a specific entity and some people believe that well I'm not going to put down the other two ways because maybe nobody will realize that there are other two ways if something goes wrong they won't be able to hold that against me what are you kidding me I mean there are a lot of smart people out there and they know that other ways these are knowledgeable things people here know them people a lot of places know those ways so the best way to defend yourself is to let subsequent court jury whatever they hey listen I get it I know that there are other ways to do this it wasn't that I didn't think about it it wasn't that I was negligent that I wasn't thinking about these things I thought about it this is what I decided to do basic malpractice lies you cannot be held liable for medical malpractice for a judgment if you're making a pure judgment you can't be held liable for medical malpractice and so that's what you want to do is you want to clearly on that chart make it clear that hey there are several options this is my judgment I'm saying this is my judgment this is what I decided to do thanks dr. Rubin I am I'm gonna add on to dr. together the other outpatient we have a lot of situations where patients because of their coverage of their insurance can't get a procedure done that you recommend it or can't get a medication because it's not covered by their insurance what is the physician liability in that case what do we what did we document first of all it's obvious we need to document that but what has has there been any precedent for a physician liability in those kind of cases the thing is this is that if you think a patient needs to have a procedure and they can't they don't have insurance for it you have to tell that patient you need to have this done they said well you know I don't need I don't I don't have insurance well and now give you a superficial example patient here needs to have some type of Doppler evaluation for a deep vein thrombosis or whatever and the patient says well I don't have coverage for the Doppler I don't want to do the Doppler exam you can't say well you don't have coverage and you know what we'll we'll forget it it's probably okay you know I'm not gonna order the Doppler then if you don't have insurance I won't order it or you don't have insurance I won't order the CT scan you now have assumed that liability the fact that because the insurance company is going to say to you their response to these cases and there is case law about this huge company's gonna say hey I didn't tell you not to get the scan you know we're not saying you shouldn't get the scan don't hold us responsible we're just saying we're not gonna pay for it okay but it's not our responsibility we didn't tell you not to order it so you're gonna have the responsibility so what you have to do is order it the hospital doesn't want to do it the insurance company always want to pay for it okay that's on them now the responsibility is their responsibility not your responsibility but there's been no precedent there's been no cases where the insurance company has been found liable or if the or if a physician on the other end of the insurance company you say you want to get a procedure in and the patient and the insurance excuse me the physician on the insurance come for the insurance company says no we're not gonna do that we're not gonna pay for that there is a case in California where a insurance company would not pay for extended days in the hospital physician patient was in the hospital they said physician said you know he needs to be in the hospital and the insurance company not paying for any more days he said well okay if I'm not gonna pay for I'm out discharge them they discharged him he had a complication and the physician was held liable not the insurance company let me add so there's a pretty heterogeneous group of people who work here someone pure private practice someone employed by the hospital doctor can you talk a little bit about hospitals versus physicians and a malpractice suit yeah and there are in hospitals a lot of Hospital situations one of the alternatives or one of the things that you can have is you can have if you're again if you're working for the hospital the hospital is liable for you and so there's really not an issue in those kind of cases the hospital assumes liability they buy the insurance policy at cetera where it gets a little complex is that many hospitals will offer insurance policies if you buy the insurance policy and do joint coverage with the hospital so in other words you go to the hospital hospital says alright we'll provide malpractice insurance and we'll give it to you at a lower rate but if there's a lawsuit we're partners okay we're going to do this as joint we can have one lawyer it's going to be the hospital and the physician together now what they get you at is they say well it's a lot cheaper the problem is there is a significant potential liability there there was a case in Michigan and this is the case that I haven't unfortunately know about physicians involved physician did and the order by femoral bypass graft unfortunately things went very wrong and the patient subsequently ended up with bilateral below the knee amputations the patient sued the hospital and the physician and the hospital and the physician had joint coverage the physician had bought his coverage to the house and they defended it together well the hospital attorney presented the case for the plaintiff attorney presented his case hospital attorney who was also the doctors attorney came in there and said hey you know what you got to let my hospital out of here you know the hospital really didn't do anything you got to let the hospital out and the judge said okay fine so now the doctors there by himself okay what happened was is that they found a judgment I think for thirty two million dollars against the doctor alone because he was out there by himself now obviously they didn't collect thirty two million dollars but they froze all his assets it was it didn't get any paychecks for a while I mean it was a terrible situation so you've got to be very careful and if you have joint coverage with a hospital or a clinic be very careful and sometimes it may be better to get your own attorney in those kind of situations yeah thank you for the great overview and I think your perspective of both sides makes it good for us okay two questions one is a curler to what man asked you know we deal with transplants vag and also the interventional world we're getting more into a group decision-making model where these committees like we always say oh the committee made the choice but there are people in the committee so the legal obligation why is the individual so the committee are independently liable or if some if some decision is questioned does that become because we document and the one person signs saying oh this is what we did in the committee so when you have those kind of command we have a similar kind of thing we much as you have here we have a complex aortic surgery conference and we will discuss complex aortic cases and come to a consensus however if it's my case I'm making the final decision I will put down whether everybody agrees or not agrees I will put down case discussed at Beaumont hospital complex aortic surgery conference these were the points that were raised in view of this and I put down why I decided to do what I was going to do and so again it's documentation you know make sure and I would clearly you know which if you come the consensus of your committee is to do a I would clearly make sure that's in the chart patients case discussed at such-and-such this was the consensus of the committee I think that's an important component and my other question is the usual situation of against medical advice when patients leave a lot of times I see that when they leave the oh it's like he left so we don't have to do anything but I'm I'm not wrong you're still obligated to give him prescriptions give a follow-up and make sure that you you do things that need an appropriate outpatient fall off is that correct yeah that sort of case dependent in other words what yet again it comes to the law it gets complex so the arguments go this way if you give him those things they argument say well but you treated him you obviously thought it was okay because you gave him all the treatments and stuff like that the other way to say is I'm not and and the other way say I'm not giving him anything well somebody will look at that and go well you couldn't give him anything I mean if you to give him something it had been okay I would argue that you know what I would give the patient whatever you think is reasonable to give them and if they go home AMA they go home AMA and you say okay patient went home AMA I do not think it's safe for them to go home I think they are at increased risk I've explained to those patients I have given them these prescriptions in hopes that you know they'll at least do this but I do not think this is the appropriate care and now you've documented that and the problem is we all know that but we all can't go find the computer and write it down of things they call you think you know mister so-and-so is going home am a great I can't get him out of here send him out okay but then you don't go right up break that charlie no so so well before you get to mujeeb yeah one it's like you had a document document document let me ask you about the electronic medical record it seems to me like that's what we do and that basically is potentially a big problem een you talked a little bit last night about the dangers of the electronic medical record and I think you know we went on epic I guess just over a year ago know talked a little bit about cutting and pasting and the amount of stuff that is that is being moved around medical record yeah the despite what we think most of the time a lot of people in the government are not stupid they sort of get this okay and they're starting to look these frauds they're starting to look at these notes and people are saying okay some physicians have said okay well we got to have these components no problem they put together an electronic note and they keep moving it from patient a the patient B the patient C to make sure they have all the components so you can get paid I can't tell you how many charts I've looked at in reviewing for medical malpractice cases where the patient has palpable pedo pulses and has a right B ka okay I mean to tell you those are really sensitive fingertips you know I mean really I mean come on right BK and they got palpable P no pulses that's what we get into with these medical records and you get into a situation where you know you've got your chart and you've got your basic record and you maybe make a few tweaks here but then you forget to make a tweak or a patient has a little bit different so I guess I'm not saying completely abandon medical records because they're here to stay and that's what's going to happen but use them wisely and take the extra time which none of us want to do medical reflect Roenick medical records has added literally hours to all of our days okay in terms of trying to get this done but unfortunately they're here to stay so you just sort of have to deal with it and you have to make sure that the note says what you want it to say lawyers love the electronic medical record they think it's the greatest thing in the world yeah yes so my question is can I go back to the charge and document something which I miss for example the primary care physician asked me to prescribe anticoagulation on his behalf because he's not in the hospital and you're just trying to help that patient get out of the hospital the patient needs to go home and I forgot about documenting like can you go back like from a previous encounter and say I have had a conversation with dr. X and he recommends prescribing this which I have done and given the instructions to the patient probably not after the suits and filed okay but but before the suits been filed you can probably do that thanks very much there's a excellent