things that get podiatrists sued wspma annual … that get podiatrists sued (and suggestions on how...

THINGS THAT GET PODIATRISTS SUED

(AND SUGGESTIONS ON HOW TO AVOID THEM)

WSPMA ANNUAL CONFERENCE - 2017

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 1

YOUR SPEAKER MATTHEW R. WOJCIK LAW FIRM: Bullivant Houser Bailey PC HOME: Seattle, Washington LICENSED IN: Washington, Oregon & Alaska FOCUS: 20 years representing physicians, hospitals, podiatrists, chiropractors, nurses, medical technicians, and product manufacturers in complex civil matters, primarily in the areas of:

• Medical Malpractice • Professional Liability • Product Liability

FUN FACTS: Was certified as an EMT and whitewater rafting guide. He keeps busy chasing after his two sons, coaching flag football, traveling the world with his wife, and trying to correct an "overly athletic" golf swing.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 2

MOST PODIATRISTS WILL BE SUED AT SOME POINT DURING THEIR CAREERS

True

False

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 3

True

7.4% OF ALL PHYSICIANS ANNUALLY HAD A MALPRACTICE CLAIM; 1.6% MADE A PAYMENT

All Physicians

0% 5% 10% 15% 20%

Claim with payment to a plaintiff

Any claim

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 4

1.6% 7.4%

Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.

ALMOST ALL PHYSICIANS WILL FACE A MALPRACTICE CLAIM OVER A 30 YEAR CAREER

0

0.2

0.4

0.6

0.8

1

1.2

30 35 40 45 50 55 60 65 70

Prob

abili

ty o

f Cla

im

Age (yr)

Any claim, high risk Any claim, low risk

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 5 Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk

According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.

PICA INSURES 9,000 PODIATRISTS IN 48 STATES

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 6

5% ANNUAL CLAIMS

FREQUENCY

GENESIS OF A LAWSUIT AGAINST A PODIATRIST

poor or unexpected medical outcome

patient unhappy enough to seek legal

counsel

qualified expert reviews medical

records and testifies that standard of care

was not met

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 7

PRIMARY RISK ISSUES

99

49 35

68

13

173 161

41

219

58

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 8

11% OF CLAIMS CLOSED WITH INDEMNITY PAYMENT

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 9

Closed with

payment

Closed without payment

COMPLICATIONS, POOR OUTCOMES & DISSATISFACTION CLAIMS ARE EXPENSIVE

Average Cost to Defend

$55,288 Average Indemnity

Payment

$117,806*

Average Case Open

24 months

Longest Shortest 9 years 1 month

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 10 * Excludes $0 payments

DISPOSITION

Decision for Plaintiff by Arbitrator

Directed Verdict for Defendant

Dismissed by Court

Insured Never Served

Judgment for Defendant by Court

Judgment for Defendant by Jury

Judgment for Plaintiff by Jury

Negotiated Withdrawal

Non-suit by Plaintiff

Other

Settled before Trial

Settled during Mediation

Settled during Trial

Settled Pre-suit

Summary Judgment for Defendant

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 11

SO WHAT DOES THIS MEAN?

A lot of time, effort, money, frustration

& stress is spent on claims in which

the medicine was good.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 13

REASONS PODIATRISTS GET

SUED Difficult,

Irrational, Angry, Litigious Patients

1

PEOPLE WHO…

…are desperate …are angry …are irresponsible …blame problems on prior medical providers …are addicted to drugs or alcohol …are high maintenance …complain about bills

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 14

HOW TO DEAL WITH PROBLEM PATIENTS? A.End Doctor/Patient Relationship B. Use Best Practices

-Take extra time -Perfect documentation -Establish expectations -Practice defensive medicine

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 15

IF YOU WANT TO GET SUED… • Wait a few days to dictate chart notes. • Liberally use the cut and paste function on your

electronic medical records. • Keep it short—you know what you were thinking.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 16

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 17

REASONS PODIATRISTS GET

SUED Patients Think

You’re in a Hurry

2

PRIOR PHYSICIAN MALPRACTICE EXPERTISE AND PATIENT’S SATISFACTION WITH CARE Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide, even by their patients who do not sue Patients complained they…

…felt rushed …never received explanations for tests …were ignored

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 18

JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 19

The overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all. Patients don’t file lawsuits because they’ve been harmed by shoddy medical care. Patients file lawsuits because they’ve been harmed by shoddy medical care--and something else happens to them.

JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 20

What comes up again and again in malpractice cases is that patients say they were rushed or ignored or treated poorly.

JAMA. 1994 Nov 23-30;272(20):1583-7. Obstetricians' prior malpractice experience and patients' satisfaction with care. Hickson GB1, Clayton EW, Entman SS, Miller CS, Githens PB, Whetten-Goldstein K, Sloan FA.

WENDY LEVINSON’S 1997 STUDY FOUND THAT DOCTORS WHO HAD NEVER BEEN SUED… …spent an average of three minutes longer with each patient than doctors who had been sued at least twice …were more likely to engage in active listening

“Tell me more about that.” …were more likely to make “orienting” comments

“First I will examine you, and then we will talk about your problem.”

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 21

PATIENT WHO DEVELOPED

INFECTION AFTER BEING CASTED

FOR FRACTURED FIBULA – ENDED

UP WITH

TRANSMETATARSAL AMPUTATION

“The ER doctor came in and looked at my foot. He asked me why I did not go back to the doctor who applied the cast. I told him that Dr. ____ would not return my calls.”

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 22

PATIENT WITH MULTIPLE

COMORBIDITIES & CHRONIC FOOT

ULCER/ABSCESS ADMITTED TO

HOSPITAL. INSURED CONSULTED TO PERFORM I&D.

PATIENT DIED 2 DAYS AFTER DISCHARGE

FROM HOSPITAL

“Dr. _____ arrived only moments before the surgery was about to get started. He came in with a negative attitude and was reprimanding nurses for calling him on the phone prior to his arrival. I felt he was annoyed and he gave me little time to ask questions or have a better understanding of the procedure…”

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 23

PATIENT WHO DEVELOPED

POST-OP COMPLICATIONS

FOLLOWING BUNIONECTOMY

“Dr. ________ didn’t take much of an interest in my pain and suffering following the first surgery, he seemed busy or disinterested.”

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 24

WHAT DOES THIS TELL US?

WHAT DOES THIS TELL US?

The quality of care matters, but… HOW you provide the care matters as much or more.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 27

REASONS PODIATRISTS GET

SUED Perform Lots of

Surgery

3

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 28

Litigation Risk Complications Patients with Serious Problems

=

TOP PROCEDURES INVOLVED IN CLAIMS (STATISTICS FROM PICA) 1. Bunionectomy 2. Hammertoe Repair 3. Wound/Ulcer Care

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 29

CONSISTENT OVER LAST 10 YEARS

SURGEONS FACE THE MOST MALPRACTICE CLAIMS ANNUALLY

Neurosurgery

General Surgery

Plastic Surgery

Obstetrics and Gynecology

Pulmonary Medicine

Cardiology

Neurology

Emergency Medicine

Anesthesiology

Ophthalmology

Pathology

Family General Practice

Pediatrics

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 30 Jena, Anupam B., M.D., Seth Seabury, Ph.D., Darius Lakdawalla, Ph.D., and Amitabh Chandra, Ph.D. "Malpractice Risk

According to Physician Specialty." New England Journal of Medicine 365.7 (2011): 629-36. Web.

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 31

REASONS PODIATRISTS GET

SUED Sloppy with

Informed Consent

4

INFORMED CONSENT STATUTE PROCEDURE TO OBTAIN INFORMED CONSENT OF PATIENT (1) In order to obtain the informed consent of a patient, a physician or physician assistant shall explain the following:

(a) In general terms the procedure or treatment to be undertaken; (b) That there may be alternative procedures or methods of treatment, if any; and (c) That there are risks, if any, to the procedure or treatment.

(2) After giving the explanation specified in subsection (1) of this section, the physician or physician assistant shall ask the patient if the patient wants a more detailed explanation

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 32

ADVICE ON INFORMED CONSENT • Informed consent is a conversation, not a piece of

paper • Use the best form possible to guide conversation • Personalize the conversation • Write on consent form, draw on diagram • Make patient initial and sign sections

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 33

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 34

REASONS PODIATRISTS GET

SUED Fight about Money with

Patients

5

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 35

REASONS PODIATRISTS GET

SUED Treat a Diabetic Ulcer for a Long

Time with No Significant

Improvement

6

MEDICAL BOARD INVESTIGATIONS What to Expect

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 36

PHYSICIANS WITH BOARD ACTIONS - NATIONAL

4,295

4,571

4,449

4,713

4,501 4,439

4,201

4,091

2008 2009 2010 2011 2012 2013 2014 2015

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 37 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2016.

PHYSICIANS WITH BOARD ACTIONS - WASHINGTON

64

48 49

69 73

51

63 63

2008 2009 2010 2011 2012 2013 2014 2015

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 38 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2014.

NUMBER OF PHYSICIANS DISCIPLINED - NATIONAL

660

166 256

377

585

859 825 785

473

960 903 892

438

167 275

472

739

1012

450

857 812 900 952

1067

2008

2012

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 39 U.S. Medical Regulatory Trends and Actions Report. Rep. N.p.: Federation of State Medical Boards, 2014.

INVESTIGATION TRIGGERS • Patient complaint • Complaint by others involved in patient’s care • Filing of medical malpractice lawsuit • Settlement of medical malpractice claim or lawsuit • Anything else reportable to the NPDB • Prescription Drug Monitoring Program data • Self report

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 40

Inappropriate Prescribing Practices

1

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 41

REASONS TO BE

INVESTIGATED

Large Malpractice Settlement or Jury

Verdict

2

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 42

REASONS TO BE

INVESTIGATED

Boundary Issues 3

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 43

REASONS TO BE

INVESTIGATED

Bedside Manner 4

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 44

REASONS TO BE

INVESTIGATED

Personal Substance Abuse

5

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 45

REASONS TO BE

INVESTIGATED

WHAT TO EXPECT MEDICAL BOARD INVESTIGATIONS

• Investigation of every report • Process is different in every case • Timeline can be very long • Looking for violation(s) of the Medical Practice Act

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 46

INVESTIGATIVE TOOLS MEDICAL BOARD INVESTIGATIONS

Subpoenas Interviews Prescription Drug

Monitoring Programs (PDMP)

Public Information Undercover or Unannounced Clinic Visits

Center for Personalized Education of

Physicians (CPEP)

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 47

INVESTIGATION OUTCOMES MEDICAL BOARD INVESTIGATIONS

Closure w/o Action

Letter of Concern*

Non-disciplinary Agreement

Complaint and Notice - Hearing

Rights

Stipulated Order

Reprimand, Suspension, Probation

Fines

Restriction(s) On Practice

Final Order Revocation or Denial

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 48

WHAT TO DO? MEDICAL BOARD INVESTIGATIONS

• Insurance Company

• Attorney • Consider

Terminating Patient

• Cooperate • Explore Resources

• Communicate with Patient

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 49

OTHER ISSUES MEDICAL BOARD INVESTIGATIONS

Credentialing National

Practitioner Data Bank

Commercial Payers

Board Certification Personal Civil Lawsuit

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 50

HOW TO AVOID? MEDICAL BOARD INVESTIGATIONS

Golden Rule

Trust Your Instincts

Be Aware of “Concerning” Areas

Get Advice

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 51

IT’S (PODIATRY IS) A SMALL WORLD, AFTER ALL.

QUESTIONS? Matt Wojcik matt.wojcik@bullivant.com

WASHINGTON STATE PODIATRIC MEDICAL ASSOCIATION (WSPMA) ANNUAL CONFERENCE 2017 53