Kevin M. Klauer, DO, EJD, FACEP Chief Medical Officer, EMP, Ltd. Assistant Clinical Professor,...

Kevin M. Klauer, DO, EJD, FACEPChief Medical Officer, EMP, Ltd.

Assistant Clinical Professor, MSU-COMEditor-in-Chief, Emergency Physicians Monthly

Professional Liability Landmines 2013

The Current Malpractice Climate

• Claims Frequency• 1/25,000 ED visits• Indemnity

– 2002: $80,000– 2009: $162,000

• CDC Ambulatory Care Study– 117 million ED visits in 2007– 94.9 million in 1997

2009 ASHRM Hospital ProfessionalLiability Benchmark Analysis

Future claim severity expected to increase 4% annually

Bouncebacks?30 Yrs135,000 Pts17

2009: 136 M

illion

The Current Malpractice Climate

• PIAA: 11,529 EM Claims/$664 Million• 18% No medical error could be identified• Negligent Adverse Events: 37% of Paid Claims

– South Med J. 2005 Nov;98(11):1083-7

• 49,345 Primary care claims 1985-2000– 23% Negligent– 68% in outpatient settings– Qual Saf Health Care. 2004 Apr;13(2):121-6

The Genesis of Risk

Unhappy Patients

Bad Outcomes

+

Top 10 Professional Liability Landmines 2013

• Boarding &Crowding• EMRs• Scribes• Pain and EMTALA• Insurance trends• Safe Harbors for Qual

ity

• tPA and consent• Apology laws• Medicaid repayments• Loss of Chance• Interruptions• APP Supervision

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Crowding & Boarding

Crowding & Boarding

Joint Commission. Sentinel Event Alert, June 17, 2002; http://www.jointcommission.org/sentinelevents/statistics

• 50% of sentinel events occur in the ED• 1/3rd are related to crowding

http://www.jointcommission.org/sentinelevents/statistics

http://www.jointcommission.org/sentinelevents/statistics

THE ASSOCIATION BETWEEN EMERGENCY DEPARTMENT CROWDING AND ADVERSE CARDIOVASCULAR OUTCOMES IN PATIENTS WITH CHEST PAIN Pines, J.M., et al, Acad Emerg Med 16(7):617, July 2009

• 4,424 Adults possible ACS• ACS: 18%• Death, Cardiac Arrest, Delayed AMI, CHF, Dysrhythmias, HYN

12% in ACS and 4% of others• ED Crowding ACS Group: Lowest qrtile to Highest: OR

(adverse event)• Occupancy: 3.1; WR #: 3.7; Pt Care Hrs: 5.2

Effect of Emergency Department Crowding on Outcomes of Admitted PatientsBenjamin C. Sun, Renee Y. Hsia, Robert E. Weiss, David Zingmond, Li-Jung Liang, Weijuan Han, Heather McCreath, Steven M. Asch. Annals of emergency medicine 10 December 2012

• 995,379 ED visits resulting in admission to 187 hospitals

• 5% greater odds of inpatient death• 1% increased costs per admission• 300 inpatient deaths• 6,200 hospital days• $17 million

INCREASE IN PATIENT MORTALITY AT 10 DAYS ASSOCIATED WITH EMERGENCY DEPARTMENT OVERCROWDING Richardson, D.B., Med J Australia 184(5):213, March 6, 2006• 736 shifts with ED overcrowding v. Non crowded shifts• Poor performance of standard performance measures• 10-Day mortality: 0.42% v. 0.31%

THE ASSOCIATION BETWEEN HOSPITAL OVERCROWDING AND MORTALITY AMONG PATIENTS ADMITTED VIA WESTERN AUSTRALIAN EMERGENCY DEPARTMENTS Sprivulis, P.C., et al, Med J Australia 184(5):208, March 6, 2006 • 62,495 Pts: ED Admissions to 3 tertiary facilities• Adjustment for confounders• 7-Day mortality: Occupancy 90-99%: Hazard Ratio: 1.2; Higher occupancy: 1.3• Deaths at 30 days: Due to overcrowding: 2.3 per 1,000 hospital admissions

Cases

$3.58 Million Judgment for ER Delay That Resulted in Death of 12-year-old Boy

7:00 7:30 8:15

“The infant girl presented to the hospital with clear signs and symptoms of Streptococcus A, a bacterial infection that had invaded her blood and organs, persistent fever, skin discoloration and weakness. Emergency room physicians kept the infant waiting 5+ hours”

LIABILITY EXPOSURE

ED Attending: Liable for Bad Outcome, or Not? August 2012. ED Legal Letter;Aug2012, Vol. 23 Issue 8, p90

Recommendations

• All emergencies are addressed by the EP• EP should be notified of change in status

– Vital signs• Periodic reassessments performed with

documentation provided



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EMRs & Technology

Medical Malpractice Liability in the Age of Electronic Health Records. N Engl J Med 363;21. November 18, 2010

• Early– Inadequate training– Documentation gaps– EHR bugs and failures

• Mid– Metadata creates more discoverable events– Cut and paste histories– Information overload– Ignoring decision support

• Long term– Failure to use may = breach in SOC– Widespread decision support may result in false SOC

• March 5, 2012• Defense attorney Catherine J. Flynn• e-Discovery• $50,000• Modification allegations

Case Presentation

CC: Passed out/fever

HPI: 33 year-old male, no previous medical history, c/o sudden-onset headache today. – He has been having fevers as high as 100. – He had 2 episodes of syncope today. – No nausea or vomiting. – He has had some chest congestion with cough.

MEDS: PercocetALL: Cephalosporins; LevaquinSH: Smokes tobacco. Denies drugs. Occasional EtOH.

Physical Exam

GENERAL: Well-appearing male, appears to be in pain. VS: T 98.1º, HR 81, BP 123/77, RR 14, SaO2 97% on RA

HEENT: NC/AT. PERRL. EOMI. Mucous membranes moist.NECK: Supple. No meningismus or meningeal signs.

No JVD, no LAN.HEART: RRR, no murmursLUNGS: Clear to auscultation bilaterally.ABD: Soft, nontender, nondistended. Normal active BS.EXT: Thin, good peripheral pulses. No edema. NEURO: Alert and oriented x3. No deficits on exam.

ED Timeline

11:13 Arrives by private vehicle 13:28 Seen by EM resident 13:59 Attending EM physician signs up on

computerized tracking system 14:49 Ketorolac 30mg IV administered· 16:24 LP completed· 18:26 Morphine 5mg IV;

Vancomycin 1gm IV administered (after LP results)

Diagnostics

WBC 12.9, 84% neutrophils CT Head: Normal Lumbar puncture: CSF clear & colorless

Tube #1 - 26 WBC / 650 RBC Tube #4 - 34 WBC / 41 RBC

ED Course

· 20:08 Ceftriaxone 2gm IV administered (ordered by EM attending)

RN calls EM physician (elsewhere in a large ED) Reports patient c/o hand pruritis / flushed skin® Physician gives verbal order via cell phone to D/C

ceftriaxone infusion

20:18 Benadryl 50mg IV

ED Course

RN calls EM physician a 2nd time due to pt c/o SOB® Per RN, ‘Pt gasping, audibly wheezing, drooling,

with edema of face, lips, tongue, arms’

ED Course



Epinephrine 0.3mg 1:10,000 IV x2 doses Solumedrol 125mg IV· Pepcid 20mg IV

ED Course



Epinephrine 0.3mg 1:10,000 IV x2 doses Solumedrol 125mg IV· Pepcid 20mg IV

Pt intubated with adjunct use of bougie

One Little Detail:

On subsequent review, it is discovered that the same physician ordered IV ceftriaxone for a pt with a cephalosporin allergy 6 months earlier

In a bizarre coincidence, it also happened to be the exact same patient, who had developed urticaria and mild wheezing during that previous encounter

Case Presentation

• 44 yo male with a groin rash– DX as tinea cruris– Developed a horrible excoriating rash after

starting his “antifungal” cream• ED doc wanted to prescribe fluconazole, but

inadvertently prescribed fluorouracil (5-FU)

$20,000



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Scribes

Scribe UpdateFAQs, regarding scribes, published by The Joint Commission on July 12, 2012.

• “Scribed for Dr. X by name of the scribe and title” with the date and time of the entry.

• “scribed” entries-- the physician or practitioner must actually sign or authenticate through the clinical information system.

• The authentication must take place before the physician or practitioner and scribe leave the patient care area

• Scribes cannot perform CPOE



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APP Supervision

Coding & Billing

• “Incident to”? Not in the ED• “Split/Shared Visit” Allowed in the ED• “Face to Face”? Demonstrate that the physician personally saw the patient face-to-

face and participated in the management of the patient.

Not be limited to a physician’s co-signature of the NPP’s note or additions to the NPP’s note.

Not simply indicate that the physician reviewed and/or discussed the case with the NPP.

*Coding for a shared visit may be based on the information recorded in the combined notes of the non-physician and the physician.

Coding & Billing

• No “Face to Face”?• The service may only be billed for under the

NP/PA’s provider number.• Critical care services are not covered under the

“Shared services” rule.• Qualified NPPs may provide critical care

services (and report for payment under their National Provider Identifier (NPI)), when these services meet the above critical care services definition and requirements. (trans 1548)

Smoke & Mirrors?

• 100% v. 85% PFS?• Does signing the charts meet the

requirements?• Does billing 85% remove physician

liability?



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Pain and EMTALA

• Am J Emerg Med May, 2007– Patient identification– Letters to patients and their primary care physicians

regarding frequent ED visits and opioid rescue– Non-narcotics used in subsequent visits– Primary care follow up for alternatives suggested

• Decrease in ED and Primary care visits

“Chronic pain program”

Chronic Pain

• South Carolina Hospital Association

Our Emergency Department staff understands that pain relief is important when one is hurt or needs emergency care.

But………………….

• The primary role of the Emergency Medicine provider is to look for and treat an emergency medical condition.

• You may be asked about a history of pain medication use, misuse, or substance abuse before prescribing any pain medication.

• We may ask you to show a photo ID, such as a driver’s license, when you check into the Emergency Department or receive a prescription for pain medications. We may also research the statewide prescription data base regarding your prescription drug use.

• We may only provide enough pain medication to last until you can contact your doctor. We will prescribe pain medications with a lower risk of addiction and/or overdose when possible.

For your safety, we do not:

– Give pain medication shots for sudden increases in chronic pain, or aggravation of chronic pain syndromes.

– Refill lost or stolen prescriptions for medications. You must obtain refill prescriptions from your primary care provider or pain clinician.

– Prescribe missed methadone doses, or provide prescription refills for chronic pain management.

– Prescribe long-acting pain medications, such as OxyContin, MSContin, fentanyl patches, or methadone for chronic, non-cancer pain.

– Prescribe pain medications if you already receive pain medication from another doctor or emergency department.

CMS Response



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Safe Harbors for Quality?



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Insurance Trends

• July 15, 2012• “Malpractice insurance is a lawsuit

magnet”– Unnamed hospital CEO in NYC

• Reduced Judgments• Can result in financial catastrophe

$1 mill/$3 mill $2 mill/$6 mill

• Perceived imbalance in financial exposure• Projected premiums: 30%-40%• Increased cost of care• CMA: Avg. Indemnity $200,000• Settlements/Judgments > $1,000,000



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tPA and Consent

• Standard of Care• Doctrine of Informed Consent



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Apology Laws

LIABILITY CLAIMS AND COSTS BEFORE AND AFTER IMPLEMENTATION OF A MEDICAL ERROR DISCLOSURE PROGRAM Kachalia, A., et al, Ann Intern Med 153(4):213, August 17, 2010

• University of Michigan• Full disclosure of medical error • Offers for compensation• Claims/yr: 53-32• Claims resulting in lawsuit/yr: 39-17• Avg Cost: from $405,921 to $228,308

Apology Laws

• Per the AMA: 35 states in 2012• Those without: Alabama, Alaska, Arkansas,

Illinois, Kansas, Kentucky, Mississippi, Nevada, New Jersey, New Mexico, New York, Pennsylvania and Rhode Island

• Dresser R. The Limits of Apology Laws; Hastings Center Report, Volume 38, Number 3, May-June 2008 pp. 6-7 – Limited Protection



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Medicaid Recovery

• October 8, 2012– Wos v. E.M.A.– NC: Lien on settlements of 1/3rd

– Disproportionately high when the medical expenses are < 1/3rd.

– NC victory = Chilling effect on lawsuits • March 20, 2013

– SCOTUS: Affirmed 4th Circuit Courts Holding– Medicaid Act Preempts State Statutes– Case by case basis: Expenses only



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Loss of Chance Doctrine

• Probabilistic Cause• An alternative to traditional causation in

seriously ill patients• Hawaii: 1972• Approximately 50% of states• If < 50% chance or survival or

improvement– Recovery rare

Chilling New Ways Patients Are Suing Doctors. Anthony Francis, MD, JD; March 29, 2012. Medscape.com

• 2008: Mass: Matsuyama v. Birnbaum– 37.5% Chance

– (1) “the full amount of damages allowable for the injury,” without any probabilistic offset;

– (2) the probability of survival before the medical malpractice;

– (3) the probability of survival after the medical malpractice;

– (4) the difference in probabilities between steps (2) and (3); and

– (5) the product of the difference in probabilities (4) and the full amount of damages (1).

Civil Rights Violations: “Failure to Accommodate”

• Does not require the burden of expert testimony– Probable medical negligence



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INTERRUPTIONS

ED Interruptions

Chisholm CD, Collison EK, Nelson DR, Cordell WH. Emergency department workplace interruptions: are emergency physicians "interrupt-driven" and "multitasking"? Acad Emerg Med. 2000 Nov;7(11):1239-43.• Three EDs: Urban teaching, Suburban teaching, Rural• Investigator followed EPs for 180 minute periods• Tasks• Interruptions: …event that briefly required the attention of the

subject but did not result in switching to a new task• Breaks in Task: …an event that required the attention of the

physician for more than 10 seconds and subsequently resulted in changing tasks.

Mean # of Interruptions: 30.9Mean # of Breaks in task: 20.7

Jeanmonod R, Boyd M, Loewenthal M, Triner W.The nature of emergency department interruptions and their impact on patient satisfaction. Emerg Med J. 2010

May;27(5):376-9.

• Observation: 4 hour blocks of time• If in the primary patient interaction, Pt

satisfaction assessed (1-10)• 53%: While reviewing data• 50%: While charting• 26%: Bedside interruptions• 60%: By other providers• Negative Impact on Patient Satisfaction

Case Presentation

• 48 year old white female• CC: Left upper back pain• HPI: 3 hours, acute onset, non-

reproducible to palpation but slightly worsened by ROM

• Assoc: Pleuritic• PSHx: No ETOH, ½ ppd Tobacco history

Case Presentation

• CBC, Urinalysis, BMP, Troponin I negative• ECG SR without ectopy or ischemic

changes• CT Pulmonary angiogram: Negative

Case Presentation

• Disposition• Discharged • 3-5 Day follow up• Rx: Ibuprofen and Vicodin

Case Presentation

• Died 26 hours after discharge

Case Presentation

• Claim Filed• Combined Settlement on behalf of the

physician & hospital



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Remember! When Your Day Seems Bad? It Could Always Be Worse!

Thank you!

Kevin M. Klauer, DO, EJD, FACEP Chief Medical Officer, EMP, Ltd. Assistant Clinical Professor,...

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