David R. Lucchese, J.D. Galloway, Lucchese, Everson & Picchi Walnut Creek, CA

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CATHOLIC HEALTHCARE WEST 3 rd Annual Perinatal Safety Collaborative Defending Safe Care and Evidence-Based Practices. CATHOLIC HEALTHCARE WEST 3 rd Annual Perinatal Safety Collaborative September 12, 2010 Sacramento, California. David R. Lucchese, J.D. Galloway, Lucchese, Everson & Picchi - PowerPoint PPT Presentation

Transcript of David R. Lucchese, J.D. Galloway, Lucchese, Everson & Picchi Walnut Creek, CA

  • CATHOLIC HEALTHCARE WEST3rd Annual Perinatal Safety Collaborative

    Defending Safe Care andEvidence-Based PracticesCATHOLIC HEALTHCARE WEST 3rd Annual Perinatal Safety Collaborative September 12, 2010 Sacramento, California

    David R. Lucchese, J.D.Galloway, Lucchese, Everson & PicchiWalnut Creek, CA

  • AVOID OR MITIGATE CLAIMS?

    Lawsuits against healthcare providers and healthcare facilities cannot always be avoided, even when appropriate or evidence-based practice was rendered to the patient.

  • AVOID OR MITIGATE CLAIMS? (contd.)

    At present, there is no immunity from lawsuits if care provided meets evidence-based guidelines.

  • AVOID OR MITIGATE CLAIMS? (contd.)

    The more extensive and more costly a disability caused by medical care, the more likely there will be a lawsuit financial need.

  • BETTER ANALYSIS: REDUCE CHANCE OF LAWSUIT

    Conduct yourself in a manner that appreciates that a lawsuit can come out of any patient encounter be aware of the danger!

  • BETTER ANALYSIS: REDUCE CHANCE OF LAWSUIT (contd.)

    For doctors attempt to follow established best practices, evidence-based management of patient encounters. For nurses, be sure to now and follow established hospital practices.

  • BETTER ANALYSIS: REDUCE CHANCE OF LAWSUIT (contd.)

    Make complete and timely entries in the written or electronic record.

    Be polite, friendly and honest (without admitting wrongdoing) with patients.

  • ARE PERINATAL PROVIDERS STILL THE TARGETS IN MALPRACTICE CASES?

    YES!

    In the PIAA malpractice claims closed analysis, between 1985 and 2007, obstetrical claims ranked first among all specialties for the number of claims reported and the total amount of indemnity paid.Closed claims involving the brain-damaged infant had the highest average payment at $565,152.

  • ARE PERINATAL PROVIDERS STILL THE TARGETS IN MALPRACTICE CASES?(contd.)Verdict Search each year publishes the top 100 top civil cases in the United States (all types):2004 7 of top 100 civil cases were perinatal brain injury cases, ranging from $23 million to $63 million.2005 7 of the top 100 civil cases were perinatal brain injury cases, ranging from $17 to $212 million.

  • WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? Although in California, general damages for pain and suffering are limited to $250,000, there is no limitation on the collection of economically- related injuries.

  • WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (contd.)Perinatal brain injury cases have high economic damages.

  • WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (contd.)These cases involve injuries to babies who during their childhood and adulthood are usually severely disabled secondary to their brain injuries, requiring: extensive medical careexpensive and constant assistive care for ADLsrecovery for loss of their adult earning capacity

  • WHY ARE THE SETTLEMENTS AND VERDICTS IN PERINATAL BRAIN INJURY CASES SO LARGE? (contd.)Medical and assistive care have some of the highest rates of inflation.Because of extensive care, these children often have a relatively long life expectancy.

  • THE FACTORS IN THE ECONOMIC EQUATION General damages for pain, suffering and loss of enjoyment of life, etc. = $250,000 (limited by Section 3333.2, Civil Code)

    Economic damages according to proof at trial

  • THE FACTORS IN THE ECONOMIC EQUATION - Economic Damages (contd.)Medical and assistive care costs:Level of care needed fee per hour (doctor, RN, LVN, CNA)XFrequency of care required (# hours per day)XNumber of days per year service needed gives annual costX Estimated life expectancy of the child

  • THE FACTORS IN THE ECONOMIC EQUATION - Economic Damages (contd.)Loss of earning capacity - what the jury finds would have been the level of academic achievement of the child if not disabled; then a forensic economist applies US Bureau of Labor Statistics for the average work life earnings of persons with that level of education

  • DAMAGES - FOUR Y/OLD QUADRAPLEGIC $13.5M (PCV)Male: 4 years oldCondition: spastic quadriplegiaLife expectancy: 56 yearsGeneral Damages(past and future)ECONOMIC DAMAGESFuture (Present Cash Value)$250K2% of Total Value$691KMed.Care5% of TotalValue$622KMed.Supplies4% of Total Value$451KEducation3% of Total Value$105KHouse Modifications $0Past0.1% of Total Value$8.9MAttendantCare66% of Total Value$2.5MLoss of EarningCapacity4 Yr. College19% of Total Value

  • MOST FREQUENT LEGAL ISSUES Opinion of Clark, et. al (2008) in a review of 189 closed perinatal claims of a major insurance carrier between 2005 and 2005, 79% of those cases involved substandard care.

  • MOST FREQUENT LEGAL ISSUES (contd.)In my own 30 + years of experiencedefending perinatal providers:Prenatally (mostly involving the perinatologist and the ob)Diagnosing and treating gestational diabetes causing later problems during deliveryMissing abnormalities in ultrasound testsDiagnosis and treatment of preeclampsiaManagement of post-date pregnancies

  • MOST FREQUENT LEGAL ISSUES (contd.)IntrapartumInduction and augmentation-related problems, including uterine tachysystoleFailure to diagnose a failure to progress and then sectionFetal heart rate interpretation misinterpreting the maternal heart rate for the fetal heart rateFetal heart rate interpretation failure to diagnose FHR pattern requiring immediate intervention for fetal intolerance to labor

  • MOST FREQUENT LEGAL ISSUES (contd.)Intrapartum (contd.)Improper use of vacuum or forcepsFailure to diagnose and avoid a potential shoulder dystocia; or failure to properly resolve a shoulder dystociaFailure in the face of a fetal indication for section to start the procedure in a reasonable time after the decision to sectionFailure to continued FHR monitoring in the operating room

  • MOST FREQUENT LEGAL ISSUES (contd.)Intrapartum (contd.)For CNMs: failure to follow hospital guidelines for interface with the supervising physician, or need to transfer careFor L&D nurses: not following nursing protocols; failure to notify ob or CNM of significant abnormalities in the mother or fetusFailure of the obs, and/or nurses to alert the nursery of potential problems for a soon to be delivered baby so they will be presentRegarding resuscitation of the newborn, if needed: failure to have necessary staff present and failure to follow NRP guidelines in the resuscitation

  • HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE Better documentation the key to later explanationThis is constantly mention, but not always followed.Especially needed if there is an emergency should someone be a scribe, and document as if during a code.Physician progress notes need to be more frequent during labor, an use a SOAP format; the plan is especially important if labor progress is slow.

  • HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (contd.)Shared understanding of FHR interpretation among providersInstill in providers the importance of teamwork and communication between providers on the maternal and fetal conditionHave a higher awareness of potential danger during the second stage of labor

  • HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (contd.)Have drills for obstetrical emergencies, including shoulder dystocias; and/or have an OB rapid response teamWhen a cesarean section is called make sure that everyone knows the indication, the rapidity at which the baby needs to be delivered, and have the section start as soon as the circumstances merit continue monitoring the fetus

  • HOW TO REDUCE RISK AND IMPROVE CHANCE OF DEFENSE (contd.)If there is any belief the fetus may be depressed at birth, alert the nursery to have necessary resuscitators and care providers at deliveryIf possible cord blood gasses should be obtained on every delivery, but for sure if the baby is at all depressed at birth; and, if the baby is depressed the placenta should be retained and examined.

  • PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT There are some perinatal injury cases where truly the baby experienced peripartum hypoxic-ischemic brain injury and the totality of the facts make the case one that cannot be defended at trial Those cases are settled often for very significant amounts of money in the millions of dollars.

  • PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT (contd.)I have won most of the perinatal brain injury cases that I have tried in court or in arbitration. In my review of jury verdicts and settlements in other states there are many of these cases that are being tried in court, rather than settled, and many are being won as well.

  • PERINATAL BRAIN INJURY CASES CAN BE DEFENDED IN COURT, OR THE SETTLEMENT CAN BE SIGNIFICANTLY LOWERED, IF CERTAIN ELEMENTS ARE PRESENT (contd.)There is a trend to try these cases if the content of the medical records can be opined by expert witnesses to demonstrate that the actions of the perinatal healthcare professionals were in compliance with the standard of care, and there also clinical evidence to support an expert witness opinion that the infants brain injury did not occur during the intrapartum period.

  • THE CAUSATION ARGUMENT:

  • CAUSATION

    WERE THE ACTIONS BY THE DELIVERY TEAM THE CAUSE (SUBSTANTIAL FACTOR) OF THE BABYS BRAIN INJURY?

  • Stevenson, et al: Fetal and Neonatal Brain Injury: Mechanisms, Management and the Risks of Practice (1989):The human brain is susceptible to a wide variety of genetic, developmental, and acquired abnormalities and insults.

  • Criteria to Define an Acute Intrapartum Hypoxic Event as Sufficient to Cause Cerebral Palsy

    From Neonatal Encephalopathy and Cerebral Palsy, ACOG and AAP, January 2003

  • Steps to Take to Investigate and Prove an Unpreventable Fetal/Neonatal Brain Injury Obtain a complete and comprehensive set of the medical records of the mother and the baby, including the neonatal and pediatric records.Obtain the complete and clear copy of all ultrasounds of the pregnancy, and all neuroscans available, including any intrauterine scans, if any, plus all postpartum CTs, ultrasounds and MRIs of the brain.

  • Steps to Take to Investigate and Prove an Unpreventable Fetal/Neonatal Brain Injury (contd.)Have the films of the baby reviewed by a pediatric neuroradiologist, and if correlation to fetal/neonatal brain development is required, a pediatric neuropathologist.Have the pregnancy evaluated by a perinatologist, and the child's neonatal and pediatric development evaluated by a pediatric neurologist.

    Have placental slides evaluated by a placental pathologist.

  • IMAGING STUDIESInjury has already occurred at time of first imaging study dated January 9, 2005.

    Clinical events of January 13th, reveal no significant effects on the brain as demonstrated by imaging.

  • SUMMARYPatients first brain scan on Day Two of life, reveals brain injury has already occurred.

    Final scan reveals expected residual scarring from this original in-utero insult.

  • DEFENSE CAUSATION EXPERTS Defense experts: (a) pediatric neurologist looks at 14 hour ultrasound of babys brain showed the changes in the brain caused by hypoxic injury, but weeks before labor; and (b) placental pathologist who showed a blowup of slide of placental tissue which demonstrated structural changes in the villi chorioangiosis (much increased number of blood vessels) that was caused by hypoxic injury weeks before labor.

  • WRITTEN RULING BY ARBITRATORS FOR DEFENSE (5/30/06):The arbitration panel is particularly impressed with the fact that the testimony of Dr. Machin and Dr. Barakos on visible structural abnormalities, which they testified could not have occurred without a hypoxic injury preceding labor, was not disputed by plaintiff with contrary expert opinions in these areas.Accordingly, the majority of the panel finds that plaintiffs have failed to sustain their burden of proof either on the issues of causation or standard of care.

  • TO HAVE A DEFENSE DAMAGES PRESENTATION OR NOT?In a multimillion dollar, policy limit busting case, foolish if not to have an alternative damages case.The defense attorney must work with the defense damage team early in the litigation process on regarding reasonable future care scenarios cafeteria style presentation.How to emphasize the reasonableness of the defense future care plan.

  • Cmon, cmon its either one or the other.

  • PAGE v. CARPER (Alameda County, 2003)Perinatal brain injury secondary to uterine rupture 3 year old - severe cerebral palsy G tube fed; totally dependent for all activities of daily livingLife expectancy disputed: P = 50+; D = 22 yearsCourt granted Ds MIL to limit future damages to only gross value only no present cash value

  • PAGE v. CARPER (Alameda County, 2003)Plaintiff only one life care planDefendants options to choose fromEconomists testified for both sides; defense used bar graphs showing effect of plaintiffs economists opinion regarding future inflation in costs v. the defendants economists opinions

  • Child Care Needs

    Chart2

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    PLANTIFF

    DEFENDANT

    JURY

    $$ MILLIONS

    TABLE #2 CHILD'S CARE NEEDS

    TABLE 1

    TABLE 1

    482032

    Plaintiff

    Defendant

    Jury

    YEARS

    TABLE #1 LIFE EXPECTANCY OF CHILD

    TABLE 2

    TABLE 2

    26.33.18.5

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    TABLE #2 CHILD'S CARE NEEDS

    TABLE 3

    TABLE 3

    25.8

    4.8

    13.05

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    TABLE #3 FUTURE EARNING CAPACITY

    TABLE 4

    TABLE 4

    52.1

    57.9

    7.9

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    $$ MILLIONS

    TABLE #4 TOTAL DAMAGES

    TABLE 5

    TABLE 5

    57.9

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  • Future Earning Capacity

    Chart3

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    TABLE #3 FUTURE EARNING CAPACITY

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  • Life Expectancy of Child

    Chart1

    482032

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    482032

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    TABLE #4 TOTAL DAMAGES

    TABLE 5

    TABLE 5

    57.9

    8.4

    16.2

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    Cost of Annuity

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  • Total Damages

    Chart4

    52.1

    57.9

    7.9

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    TABLE #4 TOTAL DAMAGES

    TABLE 1

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    482032

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    TABLE #1 LIFE EXPECTANCY OF CHILD

    TABLE 2

    TABLE 2

    26.33.18.5

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    DEFENDANT

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    TABLE #2 CHILD'S CARE NEEDS

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    TABLE 3

    25.8

    4.8

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    PLANTIFF

    DEFENDANT

    JURY

    $$ MILLIONS

    TABLE #3 FUTURE EARNING CAPACITY

    TABLE 4

    TABLE 4

    52.1

    57.9

    7.9

    16.2

    14.6

    PLANTIFF

    DEFENDANT

    JURY

    $$ MILLIONS

    TABLE #4 TOTAL DAMAGES

    TABLE 5

    TABLE 5

    57.9

    8.4

    16.2

    3.7

    14.6

    3.1

    Plaintiff

    Cost of Annuity

    Defendant

    Cost of Annuity

    Jury

    Cost of Annuity

    $$ MILLONS

    Table #5 Award vs. Annuity Premiums

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  • ReferencesAmerican College of Obstetricians and Gynecologists. Professional Liability and Risk Management: An Essential Guide for Obstetrician-Gynecologists (2005) 187 pages.Chauhan SP, Klauser CK, et al. Intrapartum nonreassuring fetal heart rate tracing and prediction of adverse outcomes: interobserver variability American Journal of Obstetrics and Gynecology (2008) 199(6): 623.Clark EA, Misher J. Team training/simulation Clinical Obstetrics and Gynecology (2010) 53(1):265-277.Clark SL, Belfast MA, Dildy GA. Reducing Obstetric Litigation through Alterations in Practice Patterns. Obstetrics and Gynecology (2008) 112(6): 1279-1283.Crofts JF, Fox R, Ellis D, et al. Observations from 450 shoulder dystocia simulations: lessons for skills training Obstetrics & Gynecology (2008) 112(4) 906-912.Druzin ML, El-Sayed YY. Cesarean delivery on maternal request: wise use of finite resources? A view from the trenches Seminars in Perinatology (2006) 30(5): 305-308.

  • References (contd.)Fahey JO, Mighty HE. Shoulder dystocia: using simulation to train providers and teams Journal of Perinatal-Neonatal Nursing (2008) 22(2):114-122.Fox M, Kilpatrick S, King T, Parer JT. Fetal heart rate monitoring: interpretation and collaborative management Journal of Midwifery and Womens Health (2000) 45(6):498-507.Graham, EM, Petersen SM, et al. Intrapartum electronic fetal heart rate monitor4ing and the prevention of perinatal brain injury Obstetrics & Gynecology (2006) 108:656-666.Gherman RB, Chauhan S, et al. Shoulder dystocia: the unpreventable obstetric emergency with empiric management guidelines American Journal of Obstetrics and Gynecology (2006) 195(3):657-672.Lerner S, Magrane D, Friedman E. Teaching teamwork in medical education Mt. Sinai Journal of Medicine (2009) 76(4): 318-329.Leonard M, Graham S, Bonacum D. The human factor: the critical importance of effective teamwork and communication in providing safe care Quality Safety Health Care (2004) 13 Supp: 85-90.

  • References (contd.)Lucchese DR. Defending the perinatal brain injury lawsuit: trending toward trial. For The Defense (2007) 56-70, 83.MacLennan A, Nelson KB, Hankins G, et al. Who will deliver our grandchildren? Implications of cerebral palsy litigation JAMA (2005) 294(13):1688-1690.Macones GA, Hankins GDV, Spong CY, et al. The 2008 National Institute of Child Health and Human Development Workshop Report on Electronic Fetal Monitoring: update on definitions, interpretation, and research guidelines Obstetrics & Gynecology (2008) 112(3) 661-665.McCool WF, Guidera M, et al. The role of litigation in midwifery practice in the United States: results from a nationwide survey of certified nurse-midwives/certified midwives Midwifery and Womens Health (2007) 52(5):458-464).Miller, David A. Intrapartum fetal monitoring: Maximizing benefits and minimizing risks. Contemporary Ob/Gyn (February, 2010). 55(2):26-36.

  • References (contd.)Parer JT, Ikeda T. "A framework for standardized management of intrapartum fetal heart rate patterns" American Journal of Obstetrics & Gynecology (2007): 26.e1-26.e6.Phelan JP, Korst LM, Martin GI. Causation fetal brain injury and uterine rupture Clinics in Perinatology (2007) 34:409-438. Physician Insurers Association of America. Risk Management Review (2008 Edition).Schifrin BS, Cohen WR. Medical legal issues in fetal monitoring Clinical Perinatology (2007) 34(2):329-343.Simpson KR, Knox GE. Common areas of litigation related to care during labor and birth: recommendations to promote patient safety and decrease risk exposure Journal of Perinatal-Neonatal Nursing (2003) 17(2):110-125.Willis Healthcare Practice. Health Trek (September, 2008) 1-10.