Medico-Legal Considerations in OB/GYN: Legal Risks, Documentation, and Claims

[00:00:02]anything that was everybody around i'm james bearer and we talking about medical legal considerations adobe today kind of got interested in this from several panels I've been on which we'll talk about later and a couple of lawsuits that the department has been involved in where I've had to write a narrative and so I think one of the biggest things is fear the unknown and so I'm going to try to dispel a little bit that this today this is for doctors for nurses for everybody so everybody's involved in this and as we'll talk about later lots of different people healthcare providers can be named in lawsuits it's her way to advance the slides attending without okay so these are the objectives we won't read over those so we'll start with a case presentation this is probably one of the hardest situations I think all the nurses and physicians in the rebel agreed day 1 1030 patient comes in 39 weeks admit her for induction she's one or two thick and high and her fetal heart racing is category 1 so this patients starting out with a good trip so I want to emphasize that baby is a healthy baby when it comes into labor so this is day two patients 6 to 7 centimeters has kind of fallen off the labor curb a little bit but strip still strip still looks okay category one or two depending on how you talk about the variability and what you think the baseline is and what do you think these are D cells and these are the baselines up here or the baselines down here and so you need more of the strip to determine but category one or two no need to do anything patients six to seven at this point so we keep on going four o'clock in the afternoon incidentally we're about to do ship change with the positions which we'll talk about later and this is the strip and this is I've seen this recently with a strip and a couple years ago from a lawsuit that we're dealing with very similar strip so you can see that we got big variables the patient's pushing and the variables are down into the 60s and the big part about the strip is that during recovery period here there's zero or minimal variability and the patient came in with good variability definitely not acid otic and now we're here in the patient's push and I think this is the worst situation for all the obstetricians because you have a patient that's pushing it seems so close and and what do you do if you take the patient back for a c-section at our very high risk for complications of the c-section everybody knows cutting a patient that's complete and the heads way down there lots of issues with vaginal tears and bleeding and things like that so this is just this is a tough situation so it's one everybody kind of think about this trip and the situation as we kind of receive a lecture and hopefully by the end of the lecture maybe you think about this strip a little bit differently i know in my first two years here at LSU to my last few years here at LSU my the way I handle things like this has changed dramatically I think the the more experienced we get the more bad outcomes that we see it kind of jade's how we practice a little bit and so I may be one of the attendings that tends to jump to see section a little bit earlier and that's just because of some bad outcomes and I want to have my goal is to have a healthy infant so again I just want everybody kind of think about this trip as we go through so this is we'll just have a little fun for a second this is how not to act if you ever have to do a deposition see I'll get this over here Jenny in still not coming up Shh this is when it happened ready well I guess we're not going to have fun hell all right well this kind of killed the whole thing but still try just pretend it's still funny okay so I bones in the body deposition and some I accuse my fat accomplices which makes me wonder this lawyer has any idea grades must receive in college a secular top medical school if you have graves clothes talented supposedly to be a surgical team I have an MD from Harvard I am or certified guarding thoracic medicine trauma surgery I have been awarded citations from seven different boys every sip and see yes let's go goes in that Chapel and they form their me is a white as a missionary well if your drawers and bleep is it suffered you know come most of their shock who you think and praying to go ahead bu Bible test great church when they love my baby and will not God he was an operating room number to a second guest I have boundless I am God no it's probably not what you want to do in the deposition so that's pretty good because that's an OB case too so hopefully we never act like that so that's how not to act in the deposition will talk a little bit about depositions in a few minutes here so the purpose of this presentation is a little too earlier is to get you ought to rethink how we approach patients rethink how we approach situations and kind of identify some gaps here at LSU that maybe we can work on to cover ourselves a little bit better all right so we have a unique environment here we have no established relationships with patients usually sometimes when patients on the high-risk service will get to know them pretty well but generally they come into clinic they see a different resident to have a different attending they come into the hospital there might be four different attendings in charge of their care as we switch through several days lots of different nurses lots of medical students going in and out of the room we got nursing students we got a whole host of people so we don't have a good feel for the patient sometimes and I ran into this the other day when had a patient that was a very dead set on having a vaginal delivery and I didn't have a good rapport with the patient it's hard to gain that rapport when you talk to him for five minutes multiple attendings like we talked about we get all the transfers here we can't transfer people to somewhere else we can't refuse care the patient the other day really wanted to go to our birthing center and with midwives and she couldn't afford it that's why she was here and so she was trying to implement her plan in a kind of a non-traditional way at a traditional care provider neona neonatal outcomes something dr. groom and I were talking about the other day dr. grooms been pretty good about this but we probably aren't as attendings and probably not as residents either we don't see what happens to the babies Kaitlyn and I had a Erbs palsy I don't think either one of us know was what happened as has happened to the baby since it's been discharged and so you know that's that's bad on my part and this is commonplace around here we don't see what happens with the babies and private practice I would deliver the baby I would round on the mother I would ask him how the baby's doing they come back for their one week checkup I would see the baby I would know what's going on with a baby and that would influence how I how I handled a similar situation in the future and so I think a lot of the times bad things happen they go up to NICU and we kind of just forget about it and so that's something that we probably need to do better here nurses have doctors close by at all time so we have a unique position in that especially in obstetrics out in town nurse sees evaluates the patient the doctors in the clinic or at home at night nurse interpret reads the strip calls the doctor asked for orders and they're they're kind of running the show in the labor unit here it's not the same and so that that's a unique situation as well patient population as we all know is very unhealthy here I don't have to say too much about that so we're going to go over some trends I think a lot will surprise you because they surprised me i think everybody thinks that med mal is increasing and if you look at the if you look at the uptick at the end it is this is just from Diedrich healthcare all they did was take the national practitioner data bank which records all settlements or judgments and you can look this up online yourself i just use this because they had nice charts that were easy to read so the top is the total payout amount so you can see the total pad amount nationwide is decreasing and the total number of payouts is decreasing so there are less claims there are some things have been put in place over the years to help reform reform and we'll talk a little bit about those but med mal is definitely not having a big rise it's on it's on the decline so if you're thinking about state by state this is total payout so this is not proportion to the population you can see the good states or the gray ones in the blue ones the kind of purple and blue kind of blend here but you know kind of round us the medical malpractice is is not too bad if you really want to get away from it go up here so the next point is per capita so the states have different populations so naturally the bigger bigger states are going to higher payouts but this is per capita so best States to practice in North Dakota Texas and New York is by far the worst and their their way past these other states and so I'll start looking at this graph and I was thinking what's different and what's what it what are these have in common over here one thing that I kind of looked at was uh we're caps and if you buy a news web cap is it's a limit on damages so there's three types of damages that's the basics that you need to know from a law perspective I'm not a lawyer so I'm going to do my best with all this but there's non-economic damages non-economic is pain and suffering that's where most of the caps are aimed at or non-economic damages economic damages in the case of like a CP baby it's going to be the cost to take care of the baby for the course of the baby's life okay neurological insult and that's why CP cases are so lucrative you have a child that might have a life span of 30 or 40 years that needs every day care so you can imagine the economic cost to that is going to be really really high and that's why a lot of plaintiff attorneys will target these cases the good ones these are also very expensive to try punitive damages you don't find that too much in mid mail unless the action by the physician or nurse or healthcare provider was intentional and I was in act of malice or gross negligence and they do have some provisions in different states about this every state is different so wherever you're going to practice you just have to see what your your local laws are so to apply this to the last graph all these but to had caps and the ones with the highest per capita med mal payouts only one had a cap and Marilyn here had a really high cap and the reason I have that a different color is because if you look at some papers about caps and are they effective states with really high caps don't seemed it doesn't seem to make a difference so this is a breakdown of allegations and we'll talk about this and this is where I want you all to kind of focus as we talk is to is there certain situations that are setups for lawsuits and those are the ones you have to be more diligent about your documentation to sort of protect yourself so the by far the biggest claim around the United States for med mal is failure to diagnose and so an OB that might be for dr. groom maybe an ultrasound where dem FM missed something and GYN it might be you missed a you have an annual and you missed a breast cancer that's very common but that's by far the biggest reason for claims and you can see obstetrics has its own little category on this this chart as well alright and so the next question for this kind of for the medical students were all OB gyns in here is which specialties have to have the most claims this is out of New England Journal medicine pretty recent neurosurgery the highest this is proportionate claim so the more claims and the fewer physicians in that field they're going to rank higher on this list so there's definitely less neurosurgeons than there are OBGYNs and so but you can kind of get a flavor for the for which specialties have the most litigious environments so we'll just talk about some current trends in our field specifically here for a second acog survey 75% of OB gyns have been sued in their lifetime so three out of the four the residents you'll just get ready it's going to happen the number one reason for claims in OB GYN no one moved up there Ginny must have done that to neurological insult and that includes brachial plexus injury so that's something if we see on the labor unit we have a low cord gas below seven we have a possible Erbs palsy we need to be very very very very proactive and documentation on that patient me included fetal death maternal death that's pretty self-explanatory and then the last bullet point I have there is the landscape is changing and that the recent conference I went to for this Jeff feelin who is the md JD that is a practicing o bein an attorney does a lot of professional witness and does a lot in medical legal areas he and adam snyder both who was a defense attorney in Chicago both said and if you look at any of the papers what kind of the trend is going to is not intrapartum so it used to be look at the strip you have bad strip the tourney goes back looks at the strip and and that strip looked bad baby had a bad outcome you know lawsuit what that's changing two more and this is for like Hillary and for not our inpatient nurses but our outpatient nurses is failure to document or diagnose before the patient comes into labor and so that seems to be a trend that plaintiff attorneys across the united states are starting to gravitate more so for for instance a baby that is 4500 grams they're expecting us to be able to know the exact weight and to offer the patient the correct you know the correct mode of delivery when you know we all know the baby's weight could be off by ten percent so this is going to make it a little more difficult it makes it a reason why we have to be very diligent in outpatient setting of documenting that we that we sent the patient a letter they didn't follow up you know with their results and things like that and that's what they're focusing on a lot so one at 70 VG 1 is not delivering baby so a cog always uses this and I'm going to try to to be unbiased in this presentation because I want you all to think from the plaintiff side as well the plaintiff attorney and from the patient that's potentially harm and so a cog uses one at seven OB GYN it's not delivering babies and they say one of the reasons for this is med mal but we all know that older physicians as they get up in there OB GYN practice that they stopped doing OB for a number of reasons taking call getting up in the middle the night things like that and so that's not quite the whole story they predict a shortfall of nine thousand fourteen thousand Obie's which is good for weirsdale home so there you go the pendulum will swing back from in del home and you'll be okay Obie's have the second highest liability insurance premiums anybody know who has number one neurosurgery yes and the average payment this is this is pretty big for a CP baby or neurologically impaired baby is 1.15 million dollars so you can see why a plaintiff's attorney would want to go why they would focus on cases like this typical plaintiff attorney they're going to take their expenses out of the settlement and then they're going to get thirty three to forty percent so it would make quite a bit of money off this case these cases take long periods of time to get if they go to trial sometimes four or five years very expensive for the plaintiff attorney and it's a it's a it's a risk they're paying all the expenses up front in anticipation of winning the case in GYN what we need to worry about by the biggest is breast cancer failure to diagnose breast cancer and so we do a breast exam and we offer patients a mammogram and we have a conversation and they don't want to start their testing till 50 when they're 40 then we need to document all these things in the chart average payout for a breast cancer case is four hundred thousand dollars ovarian cancer is about 800,000 so you can you can look at the average payout it's usually the life expectancy the longer the life expectancy from failure to diagnose the higher the payouts going to be for those economic damages and then major injury claims and surgery that would be like getting a you're getting into the bow or something like that so the the biggest reason that that patient sue is they have an unexpected outcome so it's our job to make sure that their expectations they know their expectations clearly the biggest way to do that is informed consent and I think that's something that we need to work on probably in our department patients if they know an outcome is a possibility and you kind of tell them how likely that is and it happens then they're less likely to sue they have no idea that you could have your ureter cut in a in a TL H then you we cut their ureter then that's an unexpected outcome and that's that's more likely to trigger a lawsuit the other thing that some doctors don't do is they don't talk to the family there's a complication they go into hiding they don't they don't go and tell them what happened and they try to avoid it you do not want to avoid talking to the family you need to go in there there's lots of debate on what you should say the exact words but in general you should sort of apologized for for the outcome and have a discussion with a patient how do you know you're getting sued if you're in private practice you'll get a request for records this will be the first step and if that happens you need to be on alert a subpoena might be coming if you get subpoena do not contact the attorney for the planet contact your your insurance provider of your hospital and figure out how to go about that at the conference they said that plaintiffs attorneys try all kind of things some plaintiffs attorneys will actually call the office and try to talk to the doctor and they'll talk to them and and and ask them questions and and try to befriend them and they've had they've had clients that they're defending that have actually talked to the plaintiff's attorney said always such a nice guy he was he was really reasonable he was he knew you know where I was coming from so do not do that I don't know if that happens around here or not and again contact your representative one thing that they said I didn't think about they said do not go into the record I don't know Mary Lou well you can address that later they seem to think if you went into the record after us you got a subpoena that and there was any kind of discrepancy in the record that the plaintiff attorney could say that you went and altered the record even if you did I know epic has they can tell what you've done and edited but they just said just to cya don't do that and again I said we talked about not talking to the plaintiff attorney so next we're going to kind of go through how you make a claim in Louisiana so you all understand the process so the first thing you get a request for you follow request for review this is done on there's a website on a state government website louisiana division of administration you go to the website you're the plane fraternity can download the form they basically fill out the form they pay the filing fee and send it in this initiates a claim what happens after the filing an attorney chairman is selected these are these are attorneys judges people that get the panel together in Louisiana we have a panel process three doctors review the case before and we'll talk about that in just a second so the tourney chair is in charge of everything he assembles the the panel he talks to the plaintiff attorney they pick a panel member the defendants pick up a panel member and then the two doctors they pick a third panel member if nurse is getting sued then there's a possibility nurse will be on the panel I'm on a panel for a lawsuit in Alexandria right now and one of the defendants is one of the nurses and so I'm not sure who's going to be on the panel but a nurse can be on the panel for another nurse but a nurse couldn't be on a panel for a position once the the panel is convened they 180 days to render a decision and they have to render the decision has three outcomes we have there was a breach of the standard of care there was no breach of the standard of care or they need more information so first off they have to establish the singer care and we'll talk about the kind of anatomy of what needs to be proven by the plaintiff's attorney but basically that's the first step so the second step is a breach occurred did it cause damages so there's mistakes made all the time I would give it easy example as a patient comes in positive GBS we don't give her penicillin g baby comes out baby does fine baby goes to the nursery goes home never has any earlier late sepsis that was obviously a breach of the standard of care signature cares the patient needs to get penicillin doctor missed it did not fill the standard of care but there was no harm done so in that case repeating a lawsuit so this is just some more information about panels from norcom so everybody sounds like panel system when I first heard about panels like oh that's that's fair you get three doctors non-biased doctors to look at the case and I thought it stopped at the panel said no then the lawsuit was over but that's not true the panel just gives an opinion and the plaintiff's attorney can still proceed with the claim so and in fact only about seven percent of the time do doctors actually ruling in favor of the plaintiff in the panel so doctors are probably a little biased to other doctors and me and dr. groom talked about that how maybe that is a bad perception to with the panel system that were kind of all protecting each other and watching the others back and kind of stats back that up the memories of pain are compensated if you're on the panel you get about 300 bucks if you're the head administrator they make about two thousand dollars it's just quite an expensive process 90 days for the plaintiff to file suit after the panel has met so if these dates are not complied with in the basically the claim is is null and void and remember if you're on a panel and you make a decision you can be called to testify later so keep that in mind too so don't be trying to volunteer for the 300 bucks to get on these things alright I got one more deposition to watch so after the panel case maybe drop the two parties could settle also be filed you can if a lawsuit is filed and it goes on you'd have depositions and this is another thing not to do in a deposition this is low Wayne who probably a doctor groom doesn't know who that is thankfully yeah you should be thankful because i'm about to give up okay what's dragon ever I hear you huffing ducker groom she well I'm not going to tell okay this is a little Wayne a deposition is that an interview that you actually gave with Katie Couric was erected hey well that's nice what's to take good rest but now pressing your stuff okay so that was you you perform that the virgin you're my honey you all again Mickey Mouse they're all bad things okay and the reason I put that up it's funny number one but also that's admissible in court so the Wayne goes to court and the jury sees that I don't think they're going to be too lenient so if you ever have to do a deposition remember it's recorded for a reason if the recording hurts you then the the plaintiff's attorney will use the actual recording with the video in court if it if it doesn't help their case then you'll never see it again so you want to go in dress nicely suit and you want to be respectful and you want to think about your answers and if you're if you're worried then you ask your attorney but just remember if you ever in a deposition it's admissible in court and they will use it if you do a job like Lil Wayne did so again specific to Louisiana this is only for Louisiana opposition's hospitals must participate in this patient compensation from the patient compensation fund right now is 828 million dollars that the state sets aside to pay damages to patients if for some reason you decided not to participate in this then you are not you're not protected by all the the tort reform laws like the cap in Louisiana so you definitely want to make sure most hospitals would be the only situation I can see this happen if you were a private practitioner and you didn't follow the correct paperwork or do what you needed to do this could really get you in the end in the week you always here for OB that the statute of limitations is until the kid is in high school or 20 years and that's what they told us that the birth conference I went to but in the statute and I was talking to Mary Lou about this there is no mention of 20 years anywhere in Louisiana statute and we were trying to figure this out the statute limitations is one year from diagnosis or recognition of the injury so obviously you know our birth injury that's going to show up pretty quick but I guess if failure to diagnose like a breast cancer something that has to be within a year and it cannot exceed three years so that's important if it's outside the time frame you're not going to get sued are you right okay I guess you always Never Say Never yeah you can always get too so these are this kind of the anatomy of a lawsuit the plate the plaintiff bears the burden of proof all the defense has to do is disprove any of the four necessary elements in the the med mal case so what is the burden of proof it's different in med mal or civil law than it is in criminal law so I'm criminal all yo see on TV or whatever that's where I get up unless my information on the courtroom situations is that the jury has to it has to be proven beyond a reasonable doubt okay that's a high level of proof in in law in civil law it is a preponderance of the evidence so I didn't know what that meant so i looked it up and basically the description was it's got to be greater than a 51-percent chance that that is likely so they tell the jury that and it's got to be greater than a 51-percent chance that you know any of these four things happen because of the position so the first thing you have to establish is duty or standard of care where Duty comes in an example would be an ER physician calls you as an ob/gyn to come examine a patient and doesn't do a proper check out doesn't make you think that the situation is a cute talks to you on the phone and you okay the patient to come to clinic and then something bad happens to the patient then you have to decide whose duty was it was it the gyns duty to come in and see the patient regardless or was it the ER doctors duty and who is at fault here then under duty comes standard of care you have to establish a standard of care and this is what we were talking about before this is really difficult to do because standard of care is what an average position would do in that situation it's not the best care it's not the worst care it's what an average normal person would do in that situation so we could I mean the resins have sat in when we round with dr. groom in the morning I think there's a variety of opinions always from different staff and so that that's hard to establish and the other thing that makes that difficult is you can you know the plaintiff attorneys going to find a professional witness and they're going to they're going to testify that you you violate they're going to find somebody that will say you violated a standard of care and so that has to be also that's the first step then you have to cite that Senator care if there was a if the standard care was breached like we talked about earlier that'd be like you did not give the penicillin then there has to actually the breach has to cause damages so the baby got GBS sepsis you could prove the link from not giving penicillins a standard of care it was not given by the doctor that's clearly a violation of standard of care and the baby got sepsis and died then after that the attorney has to argue damages and so we talked about non-economic economic and punitive damages and then it goes to the jury at the end and they decide so again the outcomes are probably different than what y'all think only five to six percent this is in high-risk and low-risk liabilities only five to six percent of cases that go to juries return a plaintiff verdict so that sounds good but the thing to just remember is this green right here the 27 in the 31 or settled cases so but you can see it's still a large proportion of cases are thrown out and so things like the panels that we have in Louisiana that helps you some of that to get rid of some of the frivolous stuff because they go to a pan on the panels like unanimous and maybe the attorney didn't do due diligence like investigating the case and then they get the panel and then they see that they're kind of up against a wall and they drop the case so I just wanna take a second to look at things from a plant attorneys perspective so you know attorneys are there guided by the law we're guided by medicine and research and two totally different ways to think and this is from an article of a very successful plaintiff attorney I think in Illinois you and they asked him about doctors asked about all kind of things and he says he respects doctors but they deserve the same treatment so the plants attorneys they think that some of them are there's bad doctors or bad lawyers but most of them are really had the patience interest in mind and so we got to try to remember to separate that out and not take that personally they're doing their job we're doing our job and this is what they feel is a you know compels them and and they feel like they're doing good or if they're just making money whatever this guy says specifically you can prevent a lawsuit with a quick honest apology we talked about that earlier I remember we had the case with a lap a couple years ago me and shims adini we left a lap in that's indefensible went apologize to the family got hospital administration involved i think it was settled pretty quickly again i want to he mentions this in the article again frivolous lawsuits are not that common because it is so expensive and the attorney take such a risk to litigate a claim they're paying the expert witnesses there you know using their time which are billable hours and if they lose they get nothing and they asked the Attorney what his the biggest reason he thought doctors uh how they messed up and he said one was complacency and the other was tunnel vision he said a lot of cases they focused in on one diagnosis and they can keep a good working differential in their mind and miss something totally and again remember the most common reason get sued as a failure to diagnose so what about nurses nurses get sue to and you can just type it in on PubMed you can go on the national practitioner data bank and look at the statistics for nurses but this is one of the this is one of the case examples out of the one of the journal article so five month old infant is in the ICU nurse doing a good job notices drop in the potassium level in the labs cause the doctor it's a resident on call of course it's always a resident and the resident orders potassium chloride for the baby the nurse gives ten times the dose she it was her duty standard of care is violated so now we got to prove that it caused damages the baby dies so there's the causation and Hospital investigates matter and finds out that the nurse a was not supposed to give IV potassium chloride that was not in the the policy in the nursing manual and that be she had 10 times the dose that she was ordered to give so this is like a slam dunk what are the stats on a nursing so it is going up just remember adverse action includes more things and just malpractice payments this includes licensure issues claims other things and so you can see there is a rise and if you look before this there was a sharp rise before 2004 and we'll talk about why here in just a second but you can see over all the numbers aren't real big for for payouts nationwide but in going to the conference one of the big trends and OB or their naming the nurses as well as the physicians again we don't have that situation here because we're kind of have a unique set up but you can imagine if you're one of Lady nurses if you're working out in town and you're having to call a doctor and you're having interpret the strip and you're having to let that dr. know how important it is for him to look at the strip or or whatever how there could be some pushback and you know not kind of really operate on the same team so why are why they're big increases from 95 to 2001 delegation so I think all the nurses can can appreciate this that you'll have more and more responsibility hospitals are cutting back with staffing and so things are delegated an example on the floor talking to Houston is the AIDS taking the blood pressures and they might put them in and then the nurse taking care of a patient on the floor they may not tell the nurse that they may not know that that blood pressure is abnormal that pulse is abnormal and in the nurse didn't find out for an hour too and so delegation is is one of the big reasons early discharge apply ten years ago we weren't sending people home day of surgery for a hysterectomy we do that commonly now so you can imagine keeping a patient for three or four days you know that they're good and well and you're not going to worried about them coming back or having an issue that would have had it by now and that's not the case anymore nursing shortage is in cost control don't think i have to say too much about that i think everybody's seen with the hospital coming in how their formulas to to come up with staffing and sometimes is don't really match what's really going on and so that's always a constant give-and-take but that's a big reason why nurses are having more claims advances in technology fetal heart rate monitoring it's not that new but that would be an example back 30 years ago a nurse didn't have to sit and look at a strip and decide how much variability they had because category one or two or three and they thought the baby was asked to not date it wasn't to that extent so that's an example of that increased responsibility autonomy since nurse practitioners have gotten more and more autonomy crnas have more and more autonomy and can do more things it uh that is spills over to general nurses so along with them getting increased autonomy and increased responsibility for things happening y'all get it to whether you like it or not another big thing is patients are more informed they have a complication they can just pull out their phone look on google and say Erbs palsy they can look it up and in a heartbeat they can look and they can start you know asking the nurse did my doctor do this did this what would it say about the birth weight at my chart did blah blah blah and so patients are definitely more educated and definitely have better access to medical information and so that that that helps to and expanded legal definitions I talked about that when we talk about nurse prac sand and how that spilled over to general nursing so what's the best way to deal with the lawsuit is just not to get sued obviously and so I want to talk about documentation and nursing in in physicians because we have this in the past we were all under LSU now we're not nurses are new you H doctors are nella she Mary Lou's going to represent us but if we y'all renamed in a case y'all would have a separate attorney so it's very very very important at the birth injury conference Jeff feelin and the defense attorneys made a huge deal out of this is to make sure that there is no disagreements or there's no infighting in the note and so I know sometimes I've done in the past when I was a resin he minds of staff you make little chippy comments or put some things that should not be in there he needs just to stick to the facts right that so an example for nurse notifies you and she says the strips low category too and you think its category one then she's going to document category two that's what they should do that's what she thinks it is it's an opinion it's not a big deal and then you should document that you were notified by the nurse that it was category to strip however he fills a category one strips and no further metric measures are needed so you just leave it simple like that you don't say the nurse came up to me and told me I had you know give this big lengthy keep it very simple because what will happen is the plaintiff attorney will get the records and they'll say look this nursing this doctor obviously fighting to the record can you imagine what it's like in that labor unit how can they do anything together there's no camaraderie no teamwork this is just this is a setup for for bad things to happen and that's what happened to my client so you have to be very very very careful about this so we won't have a unified approach only the facts and then a big thing we probably should do more of this and we have it for shoulder dystocia but anytime we have a bad outcome we probably all develop a template and have certain elements of documentation immediately after a possible batting outcome and especially the ones that are high risk that we could possibly get be involved in a lawsuit for the biggest one again I talked about early as informed consent patients sue because they have an unexpected outcome this is our chance if you're doing a surgery if you're doing a delivery to to do that I think one thing that we've gotten really bad about is letting medical students do we talked about in education committee meetings as letting medical students do sign consent forms that's probably something we just need to I was talking to chasten jesse said ah I told you that for like ten years but we need to do away with that that needs to be that needs to not there needs to be a policy we should not be letting medical students especially when it offers be back in potential for a vacuum those are two areas that are very very risky for litigation a lot of the panel's I've been on lately have all involved vacuum delivery and the baby is usually fine there's not like a major deficit had one that it had an Erbs palsy that resolved but they still want to damages and the doctor had put on a vacuum it was appropriate but she said the doctor never told me about the vacuum so that's what they're doing so you got a way we can head this off at the pass is good informed consent we already do root cause analysis here but if you go to a hospital and you have mistakes and things that are happening and they do not do that you might want to be the physician champion of that because recalls analysis is how most most everybody is doing this now and this helps with systems issues and sometimes it's not the doctors fault sometimes it's not the nurses fault sometimes it's not the respiratory therapist is fault it's not it's a system issue that caused the problem and if you don't have things like this in place they're going to continue to happen and you're going to be drug into it team atmosphere I kind of touched on that already when won't go back into that and then Hospital support we've had an issue with that because I think dr. groom a year or two ago has had tried to talk to the hospital for you H took over that we needed a risk management team and so if you have something a potential bad outcome or a bad outcome that there's a group of people that you can go to that includes like an attorney and the speakers that came to talk to us at the at the conference the two defense attorneys they were on their hospital they were permanently employed by the hospital when there was a mistake they were involved like the next day and they they it decreased claims and decreased everything they settled a lot of cases and it was it was very helpful we do not have that here so I don't know what to say too much about that and then we talked about early apology later and I think that's very very important and I've had to do it myself I've cut a year ago before and left a lap in a patient those are two things that I can think of right off the top where I went and talked to the patient and you know I didn't tell the patient you know sorry I cut your ear I'm an idiot I just said you know things happen this is one of the things we talked about this is by far not a normal complication this is one of the ones that is in the one to two percent that shouldn't happen and she never see so she came back over and over again I saw her I took control I brought her to the private clinic I took care of her every time she was admitted to the hospital all in took care of her unit she was through the emergency room on a different service and you know just to try it that was the best thing I could do the other thing I'll tell one quick story and I'm I let Mary Lou takeover is keep on social media this was a true story from the birth conference at a case in chicago illinois area a doctor was about to go for a five o'clock run she said about to do my five o'clock seven mile run this is an ob/gyn just got called to the hospital for an emergency hashtag placental abruption okay it tagged it on Facebook attacked her location and the time that she got on this is an extreme example obviously but this is real this is stupid she got made that post and then went to the hospital so plaintiff attorney they ate that up there like oh so I guess it wasn't too big of an emergency you got on facebook and post it where you were going and what you were doing and they they connected the patient with the with with that and it was it was a debacle the the defense attorney said they were it was undefendable they settled the case immediately and it was for a lot of money so maybe not to this maybe I probably know I would hope none of us in the rumor that dumb but we do you know some people still do get on social media and make comments and do things and you have to be really careful and just keep work out of social media period it shouldn't shouldn't have anything to do I had a day that'd be about it okay no pictures no anything else don't tag yourself anywhere don't do that so alright so just again to reiterate a point I hope that looking at the strip now after I talked to you all for about 30 or 40 minutes changes something in the way that you would approach this situation I'm not saying you should do a c-section how I should manage it but something I would hope would change for all the providers in the room when you have a situation like this and i got that through then I feel like this presentation was a success so these are already talked about the gaps at LSU so the last thing is I want to turn it up to Mary Lou blackley she is who handles all of our med mal cases so if you ever sued at LSU she's going to take care of it so i forgot to say one important thing when you're in the state system your your your defense is is handled by the state's attorney's office and are the attorney general's office and they're assigned to you we don't have to go and get a lawyer and they do it all the time the big thing is that I never knew until recently is if you're named in a lawsuit resident they named the resident sometimes they'll name a nurse named a doctor whoever they name when it comes down to the end of the suit you will not your name will not go if they settle it or it goes to trial part of the agreement when you're suing a state employee is that they will not be named specifically at the Embassy so you might start out as your name in it and so that's an important thing for residents that are going out so every application that you do the hospital and ask Mary Lou about this how you answer this question legally and this is for our faculty to if you ever reup for privileges or anywhere they ask if you are currently or have ever been involved in a lawsuit if it's within this system you did not legally have to answer yes to that question because the lawsuit is against the hospital the state and it's more of a general thing they're not specific people in the lawsuit unless it's outside a crazy situation like intent to hurt a patient or intentional act or something like that so um Marylou black Lee's been 12 years of the attorney general's office she got her JD from LSU in Baton Rouge this is the she's done almost mostly med mal over the past especially the past more recently and she's kind of the expert here and what I'd like to do later after at a later date is maybe get her in to talk to the faculty and to the nurses and have like a multidisciplinary meeting in to look at some things that we could probably improve on with the recommendations from the from the attorney side so with that i'ma let change is Rupert wedgie so in ice specifically made LSU steak sooo what according to the database if we if that person is however are go where this so I appreciate dr. marrow inviting me to share some information with y'all as he said I mostly do med mal work and I want to address just first a couple of things that he mentioned briefly and that is the panel process is good for weeding out not only frivolous lawsuits but weeding out lawsuits that just really are not going to be worthwhile for an attorney to pursue so the panel process does provide some benefit in that respect the negative aspect of the panel process is that it retards the process of getting from beginning to end of the claim because the the panel is appointed and it expires within one year of the time the attorney chair is appointed but it can be extended and oftentimes it will take some time to get through the panel process and then if you think about the statute of limitations and we call it prescription in Louisiana so any other state is going to be talking about statute of limitations but if you hear the word prescription that doesn't mean your local pharmacy it means to us when the time to to assert your rights runs out and although there's a 90-day window after the end of the panel for the person to file suit if they had any time left on their one year when they filed their panel request then they have that time left as well so it can be a fairly lengthy period of time that you have to wait after the panel rules to see if the other person is going to file suit before you can say shoo i'm done with i don't have to worry about it anymore but ordinarily all you need to do is contact the attorney that was dealing with the case for you and they'll let you know when you can forget about keeping your materials or your information about that lawsuit now I wanted first to address you can help the attorney that's appointed to represent you and LSU if you are sued as a resident and this really doesn't apply to the nurses since they are you H employees now but they will have another attorney from the private sector that would represent them I am a state employee just like everybody else in here except those who work for you age so I don't have I mean I have to keep up with my time but I don't have billable hours I'm going to get paid regardless and my objective is to represent LSU doctors residents anybody else who's employed by LSU and to make sure that your rights are protected so how you can help me is I'm going to always contact you in writing first and the first thing as dr. Barrow said don't talk to an attorney without knowing that you're okay to talk to that attorney so there will be plaintiffs attorneys who may try to call you and talk to you about a case before they may actually file a claim do not talk to an attorney without checking with legal affairs so the reason that we always make our first contact in writing is that we want you to be able to confirm with legal affairs before you talk to anybody that it's okay so they will know who's going to be representing LSU and the resident or the faculty member before you get a letter from anybody so if you get a letter it's going to be by fax or email and it will give you and the end of the letter instructions to please contact legal legal affairs and confirm that it's okay to talk to that particular person it would not always be me necessarily although I do most of them but we have two or three other attorneys in the office that may end up handling a medical malpractice suit the second thing is if you get a letter and of course we want you to promptly check with legal affairs and then we contact the individual and make an appointment to have a meeting but don't go back and talk to a nurse a therapist or someone else who was in the room if because particularly with the you H employment of the staff and the LSU employment of the doctors we don't want there to look like there's a coordination of stories and it's just better if you don't let their take on things influence what you're telling you're the attorney that's going to be representing you so it's just better to meet with the attorney and not actually go talk to anybody else and say what do you remember about this or how did you howdy what's your take on how that happened or to refresh your memory your attorney is normally going to have the medical records before they come to visit with you if you need to refresh your memory by going into the computer record and it can be a benefit to you in terms of meeting with the attorney it's okay to do that I wouldn't say don't do that but don't make any changes certainly the first contact is just the beginning of the whole process once you respond and you schedule a meeting we will accommodate you and whatever way we can we're going to come to the hospital we'll meet you anywhere you want we'll meet you outside hours I met a resident up here on a Saturday because it was just the only time that he had to meet but it's imperative for us to me develop a relationship and try to understand each other when you meet with the attorney remember we're not doctors and we know we may know some of the acronyms y'all use and some of the abbreviations but when it comes to knowing the details of what you do on a daily base as strips you got it you got to talk to us like we're six years old and take us from the beginning and let us know I'm you know I'm going to talk legalese and if you don't understand it you tell me and I'll try to explain it in normal language and we need y'all to do the same thing for us the reason that it's often the residents that we speak to as opposed to the stab we're always going to talk to the staff doctor but oftentimes the resident was the person on the ground at the time the critical incident occurred and it's always personal knowledge that is the best evidence there is a statute that says you can't introduce it in court unless that person has personal knowledge so oftentimes that's going to be the resident and there's just no way to get around that now we'll also talk with the staff but they don't always have that complete idea of what the clinical picture was or what exactly happened they may come in after the incident has occurred so it's important that we speak with the resident the person who is doing the hands-on care and that we get the information firsthand from them about what we need to do that doesn't say that we're going to we will not make a decision about defending a lawsuit or pursuing a settlement until we've talked to everybody that we need to talk to and sometimes that's a lot of people but you can always count on the fact that we're going to need to interview however many residents we need to interview and it doesn't mean that you're necessarily going to be involved in a lawsuit or involved in a medical review panel where you know maybe your name wasn't even in the medical records but often times will we will contact somebody in the medical records and they were just the note taker they just wrote the note so we need to know and we have to go investigate back up the line as to who was the decision maker what they knew and when they knew it and those kinds of things so it's important to just call us let us know what your role in the case was and then we can take it from there as to whether or not you need to be involved in a in any other way if you're asked to provide a narrative because you are the person with first-person knowledge then just try to provide it as promptly as you can we know you're busy we'll do whatever we can to help you will give you examples of things that we've had in the past that we've used and it's usually just asking for your recollection of what happened and what the clinical picture was and what you did and why you did it and that's really just the beginning and the end of it this is for the panel I'm just talking about the panel process it can be and that brings me to talking about the the last thing I wanted to mention about helping the attorney is most of you residents you're going to you're not going to wind up here in the neighborhood you may go on to fellowships or practices in other states so please leave good contact information with the resident coordinator with somebody so that because we have the panel process and it may take a couple years to get to the end of that then we have the 90 days that they have to file the suit and sometimes it may be three years later that you get a call saying well so-and-so wants to take your deposition about that case you remember that panel that you are involved in and so we just need to be able to get in contact with you wherever you may be if you're in a distant state we can go take a video deposition we wouldn't necessarily have you come back ideally we'd like for you to come back and testify if we're going to go to trial in the case because I just that shows the jury a person to consider when they're making a decision about whether or not there was a breach of the standard of care and whether or not the team was working together as it as it should have been working I want to mention a couple of things that you're not covered for and as dr. Barrow mentioned the in the state system if you are a resident a faculty member any employee of LSU you are covered under the state risk management plan and you are provided with medical malpractice coverage you are not covered for just two things if you're a resident it's everything in the course and scope of your residency training would be covered you're not covered for any injury or death to a patient which results from gross negligence or from any will floor want an act or omission that's the way the language of the statute reads I'm going to say that would be something like well I get the woman who posted on Facebook if she hadn't gone and she knew it was going to be a bad outcome and she didn't appear pretty quickly that's kind of gross negligence it's something that indicates such a callous disregard of the patient safety that you can say the doctor knew or should have known something bad was going to come out and so that's just the way you can think about is this callous disregard for the patient's health the other thing that you're not covered for is a resident is moonlighting so if you're doing something that's not part of your residency that's not going to be covered under the state system and then there are few miscellaneous things i wanted to mention i think dr. Barrow mentioned depositions and that's part of the discovery process when you you can do part of the discovery process in the panel or when you get to lawsuit it just depends on what that particular situation demands in terms of discovering what went on and putting it on the record and I know that there is a peer review process that takes place in the hospital when any kind of adverse event occurs or some unexpected outcome what I want you to know is that peer review material if you are asked to give a statement for a peer review committee a sentinel event committee anybody who is reviewing as part of the hospital's quality assurance program that material is confidential it is not subject to discovery and it cannot be subpoenaed so the reason I say this is that oftentimes people may write something for the the peer review and then maybe an attorney asked them for something later and they say oh well i'll just send this it's not a good idea because then that opens the door for the other side of claim that you've waived the confidentiality and that is statutory confidentiality it's designed to allow people in the hospital to be very objective in reviewing the actions taken by their healthcare providers so that that can improve the quality of care and to have to give out that information would kind of put a chilling effect on that so there is a statute that says we don't have to give that up and I have actually tried a motion to try to get our peer review stuff and we were able to keep it secret but if you say anything about it then it could be it could be construed as a waiver and so so we'd like to avoid that if possible if you want to use what you did for the for the peer review as the basis for what you do for a narrative that's fine but there should never in any circumstance be any production of peer review material to anybody including the attorney the other there are a couple of different there is an exception to that and this will only be of interest to you if you get involved na credentials or privilege a credentialing or privilege issue and the doctor whose privileges may be affected by what happened in that circumstance can get the records so that's one exception to that rule the other statute I wanted to mention to you is that specifically it's specifically provided that if you say I'm sorry if you deliver apology if you try to explain to the patient what happened as dr. barrows encourage you to do that cannot be used against you as evidence of liability so sad to say many people have tried and in the past have been able to use the doctor coming in and saying I'm sorry as an indication well you know they were at fault they said I'm sorry so that means they are acknowledging fall it is not a situation where that's admissible anymore it it would be otherwise say what we call a statement against interest and that's the little esoteric hearsay rule information that you don't really need to know about but feel safe in delivering upon apology and a brief explanation very simple explanation about what occurred and what and you know that you are sorry that that adverse outcome occurred to that patient so that cannot be used against you and also I would say if you are asked to be involved in a medical review panel case or a case that's going on to lawsuit please do keep in contact keep the contact information of the attorney that you were working with so that you may in the down the line need to know what the status of that case is so you're applying for liability insurance and the insurance company wants to know now that information is whether or not you are involved as a as a defendant in a medical review panel complaint that information is not a reportable event so you don't have to report it let me make sure I get it what the statute says correct it is not reportable by any healthcare provider that would be you to the Louisiana State Board of Medical Examiner's any other state board that does similar licensing any credentialing board of a clinic hospital a health insurance company or a managed care company that's not to say you don't have to put it on a liability insurance application and it's not infrequent that I get inquiries from former residents who you need information about the pendency of a lawsuit or the pendency of a Medical Review Panel when it comes to their liability insurance so it's helpful to keep the contact information so that you know who you need to contact if you're asked for a letter or any explanation of what the status of a case is if you were not named as a defendant in the Medical Review Panel complaint then you don't need to worry about it period because you're not a target if you were named then you would only have to report it to a liability carrier that you were seeking coverage from if you are involved in a lawsuit that's a different story that is not confidential it's a matter of public record and so you would need to report that any questions yes what it is put these peer reviews in place have done that to prevent who's from going to court and I've done in the last year and a half 14 Kentucky and one for Tennessee and if they said no they don't know you're saying in this state so silly that they say there's no merit to the case correct how many of those actually go once they get an overt it from board I would say five percent it does serve to weed out a lot of suits that would have gone directly to the lawsuit before so it does cut down on a lot of lawsuits that just have them merit women's on that might have merit and then the other aspect of it is if the panel rules in favor of the hospital the doctors you have three automatic expert witnesses on your side and then they have to go out and get an expert witness if it's and in general unless it's cutting off the wrong leg or leaving a lab sponge in they have to have an expert to say that there was a breach of standard of care so oftentimes they may even file a lawsuit but if you're not able to find an expert witness then you can get it dismissed on a motion so that does help cut down on the frivolous litigation and the huge cost of defending such a claim so if i find the panel process is worthwhile to participate in collaboration yes we do we know you know I know that fatigue farm is doing most of you H defense work and we walk together all the time it's just that there would be a private panel panel would be the same but there's a private panel for you age and there's a public a state panel for the doctors and we would hope that there would always be a united defense you know in some cases is just not going to be possible but most of the time it's going to be united and it's going to be cooperative well the other thing I wanted to mention is just don't African vehicles are no real side