1

Medical MalpracticeCase studies for Advanced

Practice Providers

Kathy Davis RN, RNP-C, MSNNovember 11, 2006

Objectives

1. Recognize chief complaints that lead to malpractice

2. Identify approaches to care to minimize liability

3. Discuss malpractice cases involving advanced practice providers

Legal consultant

Expanded role in nursingEmployed in law offices, insurance companies, private practice, risk managers, government agenciesSpecialties within the specialtyChart review only, testifying expertsExpert witness

2

Malpractice

Four legal elementDuty-The clinician owed the patient a dutyof careThe clinician breached the standard of careThe patient suffered an injuryThe patient’s injury was caused by the clinician’s mistake

CNA Claims Study

Reported and analyzed CNA-insured nurse practitioner claims data from 1994 to 2004Study was done to identify high risk areas for nurse practitioners and to analyze the overall litigation environment in which NP’s work.There were 718 policies in effect for NP’s in 1993 and 22,311 policies in 2004

841 claims (over 10 year period)

318 cases were eliminated from the study

Remaining 523 claims: 113 closed without any payment

122 closed with expense payment only (no indemnity payment)

3

288 claims results in indemnity payments.

75% CNA claims involved NP’s in family practice and adult/geriatric specialties

Average indemnity payment was $130,000-$170,000

Average adult claim: $135,000 (41 cases)

family practice claim: $154,000 (41 cases)

pediatric/neonatal claim: $308,000 (7 cases)

OB/GYN NP’s (pre-natal and post-natal care): $81,000 (9 cases)

nurse anesthetists and midwives not included in this Claims study but may be a future focus

Claims by Statereported closed with

indemnityFlorida 87 34

California 48 9

New York 48 5

Massachusetts 29 1

4

Location of claims

Physician offices

Clinic setting

Emergency departments

Hospital claims less frequent but most expensive indemnity paid

Most Expensive InjuriesNumber Average paid

Paralysis 1 $750,000

Back injuries 1 $600,000

Dislocation 1 $400,000

Brain damage 6 $377,000

OB/maternal death 1 $300,000

Number Average paid

Cancer 10 $235,000

CVA (stroke) 2 $192,000

Neurological deficit/damage 3 $191,000

Death 33 $177,000

Loss of organ or organ function 9 $161,000

5

Cancer related claims

Involved the failure to diagnose, misdiagnose, mistreatment or lack of treatment by the NP

Plaintiff alleged their conditions worsened, or their prognosis and or course of treatment were altered due to the NP’s actions or failure to act

Case Study

Failure to diagnose colon cancer1986, plaintiff aged 52 with strong family history of colon cancer, seen by NP Rectal exam, stool guiac. Discussed with MD need for barium enema. He suggested colonoscopy (never done) 1992-1996 pt saw NP, rectal exams and stools guiac done

1996- CBC showed anemia, June 1996, colonoscopy showed colon cancer

Cecal adenocarcinoma, moderately differentiated, metastatic adenocarcinoma in 3 out of 15 regional lymph nodes

Plaintiff argued standard of care demanded complete colorectal screening

and that earlier diagnosis and treatment could have been curative

6

Settlement

$950,000 settlement reached in favor of the plaintiff

Case in Massachusetts, anonymous vs. anonymous nurse practitioner

82% of claims involved allegations related to:

Diagnosis

Treatment

Medications

Diagnosis

Failure to diagnose

Delay in establishing diagnosis

Failure to obtain appropriate tests

7

Failure to diagnoseTop 5 conditions

Breast cancer 33.5%

Lung cancer 16.9%

Myocardial infarction 13.1%

Appendicitis 10.3%

Colon or rectal cancer 9.7%

Red flag complaints

Breast lump, nipple discharge, breast rash, enlarged lymph nodeChest pain or shoulder pain in a person with a 20+pack year history of smokingChest, jaw, or neck pain in an adultLower abdominal pain

Breast Cancer

Most common cancer in American womenAccounts for 31% of cancers in women

and 15% of cancer deathsWhite women are more likely to developAfrican American women are more likely to die from breast cancerIf found early, 5 year survival rates 97%

8

Myocardial Infarction

MI is the leading cause of death in the United StatesOne third of individuals who have a MI do not surviveListen to the story…history, history, historyCase study #1Case study #2

Rules

Know red flag complaint and conditionsRule out the worst things firstKnow the risk factors that call for screening testsFollowing up on diagnostic tests and referralsRevisit an unsolved problem until it is resolved

Rules

Prescribing musts:Have office systems and policies for follow upAudit charts for mistakes or omissionsTreat every medical opinion that you give as if it were given during an office visitHave specific follow up activities for tests or procedures

9

Treatment

Failure to treat symptoms in accordance with established standardsFailure to obtain consultationImproper managementDelay in treatment or careImproper treatment

Medication

Failure to properly discontinue medication

Administering wrong medicine

Incompatibility/contraindicated

Cost of malpractice

Costs about $100-250,00 to defend a caseDepends on number of experts, may be 6 experts on each sideCausation, damages expertRehabilitation expert, life care plannerAbout 85% of cases are settled out of court

10

Case studies

Almost every nursing paper, and publication, whether specific for NP, PA, Midwives or CRNA has legal advice and case studies

NSO on line has a case of the month

Kaiser Permanente

Self insured for medical malpractice

In-house legal team at region

Kaiser lawyers also contract out to defense law firms

Every facility has a risk manager

Ombudsman

KP program based on National Naval Medical Center Program in MarylandDifferent from member services or risk managerInformal process usedShift from adversarial to early collaborationKP to date – over 9,000 cases with positive provider and member response

11

Ombudsman

Impartial third partyResolves healthcare conflicts at the earliest possible time as close to the event as possibleClarifies perceptions, frames issuesHelps create options & assist in reaching sustainable & mutually satisfactory solutions

Addresses communication issues, may include:Unexpected outcomes/deaths

Medical errors

Possible systems/practice issues

Communication problems

Lack of information

What do patients and families want?

An honest explanation

Sincere acknowledgement, sometimes comes in the form of an apology

Fix of the problem/system so “it doesn’t happen to anyone else.”

12

Communication Musts

Provider and patient develop a partnership with shared decision making

Effective communication is essential both before and after disappointing outcomes

Loss of trust & emotional distress may occur when accompanied by perceived professional indifference

Conclusions

Know what you know, know what you don’t knowUse your critical thinking skillsListen, listen, slow down, listenTreat every patient as if they were your own familyUse your mentors, consult with specialists

Conclusions

Continue to improve your communication skillsNetwork with other providers within your facility, community and the stateAsk your mentor to look at the patient with you…I need some help here; Can you look at this patient with me; I’m not sure what’s going on

13

Conclusions

If no mentor available, find oneCall the MOD, ER doctor or a specialistKeep your skills sharp, read, go to conferencesDocument, document, documentKnow where to go for help if you are named in a law suit

Conclusions

Be prepared

Relax, work hard

Balance your family, friends, and career

Have fun at a challenging and rewarding profession

BibliographyBogart, J. (ed.). (1998). Legal Nurse Consulting: Principles and

Practice. American Association of Legal Nurse Consultants.

Buppert, C., (2004). Avoiding Malpractice. Annapolis, MD: Law Office of Carolyn Buppert.

Buppert, C., (2004). Nurse Practitioner’s Business Practice and Legal Guide. Sudbury, MA: Jones and Bartlett Publishers, Inc.

Nurse’s Legal Handbook. (1999). Springhouse, PA: Springhouse.

Nurse Practitioner Claim Study: An analysis of Claims with Risk Management Recommendations. (1994-2004). CNA Health Pro; NSO (Nurses Service Organization).

14

Nurse Practitioner’s Legal Reference. (2001). Springhouse, PA: Springhouse.

Poynter, D. (2005). The Expert Witness Handbook: Tips and Techniques for the Litigation Consultant.Santa Barbara, Ca: Para Publishing.

NSO (Nurses Service Organization). http://www.nso.com/

The American Journal for Nurse Practitioners: The Pearson Report. (2006). (Vol. 10 No. 1). California pp. 40-42.