<%@LANGUAGE="VBSCRIPT" CODEPAGE="1252"%> The EPIC Report - Fall 2006



The newsletter for members of the Emergency Physicians Insurance Company Risk Retention Group

Fall 2006 - In this Issue

  1. Message from the Chairman
  2. The Resolution of a Medical Malpractice Claim
  3. Federal Appellate Court Rules Michigan’s Non-Economic Damages Cap is Constitutional
  4. Patient Callback Programs - A Safety Net
  5. Clinical Issues Q&A
  6. Emergency Medicine Patient Safety Foundation Update
  7. News Briefs
  8. Board of Governors & Committee Members

Message from the Chairman - EPIC's Direction
Victor Miranda, MD
Chairman, EPIC Board of Governors

vmirandaThe Board of Governors’ role is to oversee the affairs of this company, and set strategies in order to maintain longevity within the marketplace and for our emergency physician policyholder-owners. One of our concerns has been dealing with soft market conditions and the slow-down in growth of the company’s membership over the past year after two years of dynamic growth.

We have set out to respond to this challenge by tackling the issue where it starts. We have had many intense discussions with referral brokers to find out their opinions and concerns on the issue. After strong research and analysis, the Board of Governors has agreed upon a preliminary solution, which is to increase the broker’s commission and to offer additional incentives and marketing material, so they may fully educate potential policyholders. We are also looking into the possibility of obtaining a surplus note and decreasing the surplus contribution as solutions to stimulating the company’s long term growth.

In today’s marketplace we must continue to focus on offering superior options and simultaneously offering competitive premium rates. EPIC will continue to follow through with our commitment to patient safety in emergency medicine while adapting to the needs of those we serve in this community.


The Resolution of a Medical Malpractice Claim
Tamara LeFevre, JD
Western Litigation, Inc.

Will it ever end? Once a physician finds him/herself in the middle of a medical negligence claim, it is not long before he/she begins to ask that question. There are many ways a claim can be resolved. Some can be resolved quickly, but most take time. Lawsuits can drag on for years. And a claim can languish for a year or more before it even becomes a lawsuit.
The resolution of a claim is dependent on a number of factors:

Different ways claims are resolved

Informal Negotiation
Informal negotiation between plaintiff’s counsel and defense counsel or between a third party administrator and plaintiff’s counsel is the quickest, and often best, way to resolve a claim. If the patient’s claim is clearly meritorious, early informal negotiation can dispose of it more rapidly and inexpensively than if the claim is allowed to linger. Early informal negotiation can also prevent a claim from turning into a lawsuit. At its very best, effective early negotiation can convince a pro se claimant (a claimant representing herself) or the claimant’s counsel to drop the claim completely.

Dismissal Without Payment
Occasionally, a plaintiff’s attorney will voluntarily dismiss a physician named as a defendant in a lawsuit when, upon more in-depth investigation of his client’s claim, he determines that the physician did not breach the standard of care. However, if plaintiff’s counsel has an expert witness willing to testify thatthe physician breached the standard of care he is not going to be inclined to voluntarily dismiss the physician, regardless of how weak the expert supportmay be.

More frequently, defense counsel must file a motion for summary judgment to have the physician dismissed by the court. Typically, such a motion is filed when the plaintiff’s counsel has not provided the requisite affidavit from an expert in support of the plaintiff’s claim.

Dismissals and summary judgments are difficult to come by. Judges are reluctant to grant them, at least not until plaintiff’s counsel has been given another chance to provide the expert affidavit and/or take necessary depositions to establish that his client’s claim has merit (that there is a substantial issue of fact). By submitting an expert’s affidavit, plaintiff’s counsel precludes defense counsel from obtaining a summary judgment on the merits and meets the requirement that allows him to proceed to trial.

When a summary judgment is granted, the case is dismissed “with prejudice,” which means the plaintiff cannot refile his claim. When a dismissal is granted “without prejudice” by the court, the plaintiff is permitted to refile the lawsuit, if he does so within a certain period of time – usually one year from the date of the dismissal. The time period varies depending on each state’s law.

A dismissal or summary judgment can also sometimes be obtained if plaintiff’s counsel filed the lawsuit after the statute of limitations has expired (the statutory period of time during which a plaintiff is permitted to file a suit). The statute of limitations is determined by each state’s law.

Settlement Conferences with the Court
Some jurisdictions have mandatory settlement conferences before the court, at which time the judge tries to facilitate settlement of the case. Other jurisdictions have settlement conferences only by agreement of the parties. Success is mixed. It depends on the skills of the judge, the nature of the case, the number of parties involved, and the reasonableness of the parties.

Mediation
Mediation is probably the best known method of dispute resolution. Most states require the parties in all medical malpractice cases to go through mediation before they can proceed to trial. Mediation is a highly successful process that usually takes six to eight hours. The mediator serves as a neutral third party and listens to each party’s view of the case during a “general session,” where all parties and their counsel sit together in a conference room. Following that, the mediator separates the parties (with their counsel) into different rooms, where the mediator can go back and forth and “caucus” with each party. The mediator’s goal is to move the parties toward a settlement by helping them to clearly appreciate the facts, the strengths and weaknesses of the case, and the risks involved in continuing with the case. Mediation is a confidential process. The mediator reports to the court only that the case settled or did not settle. Cases can be mediated more than once, if necessary. 

Arbitration
Arbitration is rarely used in medical malpractice cases. It is more commonly used in commercial cases, such as a contract dispute. Arbitration typically involves an arbitrator who hears arguments from all parties and sometimes witnesses, and then the arbitrator issues an award. Arbitration can be binding or non-binding. In a binding arbitration, the arbitrator’s award is final and cannot be appealed. The arbitrator issues a zero award if no negligence is found to have occurred.

Trial
Trial is the most stressful and risky way to resolve a claim. It can also be the most rewarding if the jury finds in favor of the physician. On average, a case will not go to trial sooner than two years from the time the lawsuit was filed. It can be shorter (rarely) or longer (not unusual). A case is usually scheduled for trial several times before it actually happens. The parties must go through the exchange of written discovery requests, depositions of parties and witnesses, and mediation or a settlement conference before they get their day in court.

Appeal
Even after a verdict or summary judgment is issued (whether in favor of the plaintiff or the defendant), the case is not necessarily over. Each party has a right to appeal the decision within a certain, limited period of time – usually 30 days from the entry of judgment in most jurisdictions. Once that time period has passed, if no appeal has been filed, the matter is concluded and the verdict stands. If an appeal is filed, the judgment can be upheld or overturned. If overturned, the original judgment may simply be reversed or it may be “reversed and remanded,” meaning the case has to be tried all over again.

Conclusion

Once a payment is made by a carrier on behalf of a physician because of a settlement or judgment, the physician must comply with state and federal reporting requirements. All such payments, regardless of what state they are made in, are reported to the National Practitioner’s Data Bank (www.npdb-hipdb.hrsa.gov). The report is made by the physician’s insurance carrier or third party administrator on the physician’s behalf.

Regardless of the outcome, the resolution of a claim usually evokes mixed feelings. If the physician settles, she is relieved to have the claim behind her but may feel angry that the claimant was compensated. If the physician gets a verdict in her favor at trial, she is thrilled with the victory but often worn down by the stress of the process.

The resolution of a claim may come early or late in the evolution of the claim. The timing depends on circumstances and strategy. And while a favorable resolution can never be guaranteed, a physician’s defense counsel and third party administrator are there to guide the physician toward the most effective and desirable resolution possible.

Tamara LeFevre, J.D. has been an attorney in Houston, Texas for 18 years. She represented physicians in medical malpractice suits until she joined Western Litigation, Inc. (WLI) 9 years ago. WLI is a third party administrator that provides claims management services to EPIC and other insurers and self-insured health care providers. For additional information, go to www.westernlitigation.com.

Federal Appellate Court Rules Michigan’s Non-Economic Damages Cap is Constitutional and that the Cap Applies to EMTALA Claims
Robert A. Bitterman, MD, JD, FACEP
EPIC Board of Governors
Claims Management Committee Chair

The court also held that state law peer review privileges do not apply to EMTALA actions filed in federal court.

The case of Smith v. Botsford General Hospital [1] contains a number of fascinating aspects and lessons for hospital based emergency providers.

The Trial
Kelly Smith was a 33 year-old 600 pound man injured in a high-speed SUV rollover accident. EMS took him to BotsfordGeneral Hospital in Detroit, Michigan. The emergency physician with help from residents in emergency medicine, orthopedics and general surgery diagnosed and treated Smith for an opencomminuted left femur fracture. Botsford then transferred Smith, stating the patient’s size precluded its ability to assess the patient with a CT scan andits operating room lacked the facilities tohold the patient’s weight if surgery became necessary. During the ambulance ride to U of M Smith’s condition deteriorated further and 21 minutes into the transfer he died from extensive blood loss. [1] (The hospitals were 30 miles apart, with mostly expressway between them, but the medics stopped the ambulance on the way to reestablish IV access andto take on additional manpower.)

Smith’s family sued Botsford Hospital in federal district court, claiming the hospital and its medical and nursing staff transferred Smith before stabilizing his emergency medical condition (EMC) in violation of federal law, the Emergency Medical Treatment and Active Labor Act, EMTALA. [2] Botsford admitted the patient had an emergency medical condition, but asserted it had stabilized the patient prior to transfer and that the patient’s death could be attributed to his morbid obesity, alcohol and cocaine use.

Plaintiffs sued the hospital under EMTALA, rather than under ordinary state malpractice law, intentionally to circumvent Michigan’s cap on non-economic damages.

The Evidence
Interestingly, since the only theory of liability was the EMTALA ”failure to stabilize” claim, the court would not allow any ”standard of care” evidence or questioning of the expert witnesses. For example, the plaintiff could not assert that the hospital should have given fluids at more than 100cc/hour or when Smith’s blood pressure was mid 70s or unobtainable that blood should have been administered prior to transfer. What the physicians and hospital should have done is a ”standard of care” issue, not an EMTALA stabilization issue. Instead, the experts could only explain the nature of the patient’s injuries, interpret the clinical and laboratory data, and then opine to the jury on whether the patient was stable, as that term is defined by law (not by medicine), at the time of transfer. Under EMTALA to "stabilize" means: 

"with respect to an emergency medical condition . . . to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility." [3]

In other words, was it likely, within reasonable medical probability, that the patient would arrive safely at the receiving hospital, or was it foreseeable that the patient would materially deteriorate in route?

The plaintiff contended that due to the amount of blood loss from an open comminuted femur fracture in a restless patient thrashing around for three hours in the ED, a tracheal tube in the right main stem bronchus, a Hbg of 11.6 with a base deficit in a major trauma patient with known sleep apnea, the hemodynamic ramifications of tachycardia in the 130s, respiratory rates in the low 30s, blood pressure dropping in the low 70s for over 2 hours and entirely unobtainable at the time of transfer, pale and ”extremely cool extremities,” zero urine output for the entire ED stay, and EMS’s concerns at the time of transport (see below) … it was entirely foreseeable, certainly within reasonable medical probability, that the patient would materially deteriorate during a 30 minute transfer.

The hospital countered Smith was stable and it fully expected he would arrive safely at the receiving hospital and that his alcohol and cocaine use contributed to his unexpected demise. (The patient’s alcohol level was 110, and the hospital had no real-time evidence of cocaine toxicity –no urine was ever available, despite insertion of a foley catheter, to run the urine drug screen ordered by the physicians. The autopsy found evidence of cocaine use, but also determined the sole cause of death was hemorrhagic shock due to blood loss from the femur fractures.)

Smith questioned why the hospital, if it thought the patient was so stable, didn’t provide the patient any IV pain medications? Botsford claimed that it didn’t administer medicine to control the patient’s pain or agitation out of concern for his airway (although the patient already had a secure airway due to the tracheostomy tube in place to treat his sleep apnea).

Expert Testimony
Defendant’s emergency medicine expert testified that Smith's chronic alcoholism contributed to his death, and that his opinion stemmed from conversations with one of Smith’s deceased relatives, who had once consulted the physician regarding Smith’s drinking problems. However, neither the expert, who had a great deal of malpractice testimony experience, nor the defense counsel disclosed the information until it came out on cross-examination by the plaintiff, and they conceded that outside this personal knowledge no other admitted evidence supported his opinion concerning Smith's chronic alcoholism. [1]

The federal rules of evidence impose an affirmative obligation on all parties to disclose in advance of trial "the data or other information considered by [its expert] in forming his opinions." [4] Furthermore, experts are not supposed to use personal knowledge to form their opinions, but instead rely on the record and their training, experience, and expertise alone. Consequently, the judge excluded the witness’s entire testimony, leaving the hospital without an emergency physician expert to support its case. [1]

Botsford complained that exclusion of its emergency expert was highly prejudicial to its case and fundamentally unfair. However, the court stated that striking the expert’s testimony was "not fundamentally unfair" to Botsford, given that the federal rules of civil procedure,authorizes –indeed, directs – exclusion of the witness as the primary sanction for such a disclosure violation. [5] The court could have imposed a less stringent sanction, but declined due to the nature of the violation and its conclusion that the expert’s testimony was "largely cumulative" of the testimony of another expert witness, a toxicologist, who the defense had presented before its emergency medicine expert. [1]

Admissibility of Findings of Government Investigations
Plaintiffs reported Botsford to the Centers for Medicare and Medicaid (CMS), the federal agency charged with the regulatory enforcement of EMTALA, with the intent to later obtain the government’s investigation materials to use to their advantage in preparation for trial or in settlement negotiations. At the conclusion of CMS’s investigation, its findings become public information available via the Freedom of Information Act. [6] CMS determined that the hospital did not violate EMTALA, so in a turnabout the hospital attempted to introduce the government’s findings into evidence at trial. The court disallowed the evidence, however, declaring it ”untrustworthy” as defined by the federal evidence rules [7] for a number of reasons, such as: the plaintiffs were not a party to the hearing or able to cross examine witnesses and the physician reviewer did not have all the relevant data at the time of his review.

Typically, it is the plaintiffs who want to introduce CMS reports that a hospital violated EMTALA to sway the jury with an ”official” government judgment against the hospital. The courts usually do not allow use of CMS findings against hospitals at trial because there is no due process in CMS proceedings. The hospitals really can’t challenge CMS or they lose their Medicare and Medicaid funding for years while the process unfolds. Hospitals, therefore, simply write a ”Plan of Correction” to come into compliance with the law as mandated by CMS to avoid bankruptcy and get CMS off its back. (But see a very recent case from an Alabama district court that did allow the plaintiff to use CMS’s report at trial, Henderson v. Medical Center Enterprise, 2006 U.S. Dist. LEXIS 57898.)

Admissibility of Peer Review Materials or Incident Reports
Plaintiffs subpoenaed an EMS incident report written at the direction of the medic’s supervisor immediately after Smith died. The report was extremely damaging to the hospital’s case. For example, it noted that the patient kept saying ‘I can’t breathe… I can’t breath.’ and that he was uncooperative, agitated, pale, cool, and that one of the two IVs (D5 and water) wasn’t running. At one point the medic asked the physician for the second time if he felt the patient should be transported. Furthermore, the medics were instructed to delay transporting the patient while they waited 15 minutes for the patient’s x-rays to be copied. During this time the medic wrote that she repeatedly told the emergency physician and nursing staff about uncontrolled hemorrhaging from the wound, uncontrolled movement of the fracture sites, and expressed concern that no blood pressure could be obtained and that no blood was being administered. She even asked the emergency physician if there was any way he could stop the bleeding or sedate Smith to stop his agitation or the movement of his fractured leg. The physician’s alleged response was, “There is not much I can do at this time; he needs to get to the U of M.”

Both the EMS agency and Botsford argued vigorously that the report was inadmissible and privileged as ”peer review” material under Michigan law [8] However, the court determined, consistent with federal common law precedent, that state law privileges do not apply in cases brought under federal law such as EMTALA [9], and allowed the report into evidence.

The court also noted that “the incident report was made by a neutral party who, presumably, was objective in stating Smith’s condition,” and that “since the objective reasonableness of Smith’s transfer by Botsford is the crux of this case, production of the incident report is particularly relevant.” [10] Interestingly, the medics were later sued by the plaintiffs in state court for their role in Smith’s care, most remarkably for not refusing to transport Smith based on what they knew of his condition at that time.

Jury Verdict
After fifteen days of trial the jury sided with Smith’s family, deciding that Smith was not stable, as defined by EMTALA, at the time of transfer. The jury returned a verdict for $35,000 in economic damages and $5,000,000 in non-economic damages for Smith’s pain and suffering and for the loss of love and companionship to his next of kin.

Michigan had enacted tort reform laws which placed a cap on non-economic damages for medical malpractice at $359,000. [11] However, the judge ruled that an EMTALA claim was not a medical malpractice action, and therefore, Michigan’s non-economic damages cap did not apply to this case.

With a mere $4,641,000 at stake, Botsford naturally appealed the district judge’s ruling regarding applicability of the cap to damages recovered under EMTALA. [1]

Appeal to the Federal Sixth Circuit Court of Appeals
The Sixth Circuit started its analysis by asking whether the plaintiff's EMTALA failure-to-stabilize claim would constitute a malpractice claim under Michigan’s state law. It looked to a recent Michigan Supreme Court case, Bryant v. Oakpointe Villa Nursing Ctr., which articulated the test for determining "whether the nature of a claim is ordinary negligence or medical malpractice" (ordinary negligence claims do not come under the cap law). [12] First, the court asked "whether [the claim] is being brought against someone who, or an entity that, is capable of malpractice." [1] Second, the court considered whether "the alleged claim sounds in medical malpractice," which, in turn, depends on answering two additional questions:

"(a) whether the claim pertains to an action that occurred within the course of a professional relationship; and
(b) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience." [1]

Smith did not dispute that Botsford was an entity capable of malpractice or that the claim pertained to an action that occurred within the course of a professional relationship. Therefore, the court only needed to decide if the claim raised questions of medical judgment beyond the realm of common knowledge and experience.

Smith argued that the EMTALA claim was not a malpractice action on the grounds that it does not raise questions of "medical judgment” because violation of EMTALA requires no breach of the professional standard of care – the hallmark of traditional malpractice claims. However, the 6th Circuit followed the Michigan Supreme Court’s ruling that the traditional definition of malpractice “contributes to an understanding of what constitutes a 'medical judgment,’” but it does not limit ‘medical judgment’ to claims arising from a breach of the professional standard of care.” [12] Instead, it identified the need for expert testimony as the key distinguishing feature of claims involving medical judgment:
 
“If the reasonableness of the health care professionals' action can be evaluated by lay jurors, on the basis of their common knowledge and experience, it is ordinary negligence. If, on the other hand, the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts, a medical malpractice claim is involved.” [12]

Under this basis, the 6th Circuit had no difficulty holding that EMTALA’s failure-to-stabilize claim would constitute a malpractice action under Michigan law. It decided that “compliance with EMTALA's stabilization requirements entails medical judgment (assuring "within reasonable medical probability, that no material deterioration of the condition is likely") which can be understood, as this case exemplifies, only through expert testimony.” [13]

The court thus concluded that Michigan's cap on malpractice damages limited plaintiff's non-economic damages to $359,000, provided the cap survived a constitutional challenge.

Constitutionality of Michigan’s Non-Economic Damages Cap
Plaintiff's last argument was that Michigan’s cap law [14] violates the Seventh Amendment Right to Jury Trial and the Equal Protection Clause. The court quickly rejected both assertions, agreeing with other courts that had found medical malpractice caps constitutional. [15]

It summarily dismissed the Seventh Amendment argument by noting that:

“The jury's role as factfinder is to determine the extent of a plaintiff's injuries, not to determine the legal consequences of its factual findings.” And …
"If a legislature may completely abolish a cause of action without violating the right of trial by jury, we think it permissibly may limit damages recoverable for a cause of action as well." [16, 17]

Plaintiff's equal-protection challenge fared no better. The court determined that a limitation on a common law measure of recovery is a classic example of an economic regulation, subject only to limited “rational basis” review, and does not violate any fundamental right. Under a rational basis standard, a statute is valid if it ”rationally furthers a legitimate governmental interest.” [18] It also noted that the statute deserves ”a strong presumption of validity,“ and should be upheld, ”if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” [1] The court cited language from a Michigan appellate court case, Zdrojewski v. Murphy, which previously addressed an equal-protection challenge to Michigan’s cap law and had concluded that the statute satisfied the rational basis test. [19]

“The purpose of the damages limitation was to control increases in health care costs by reducing the liability of medical care providers, thereby reducing malpractice insurance premiums, a large component of health care costs. Controlling health care costs is a legitimate governmental purpose. By limiting at least one component of health care costs, the non-economic damages limitation is rationally related to its intended purpose.” [19]

Thus, plaintiff's equal-protection argument failed. The court held the Michigan’s non-economic damages cap survived rational-basis scrutiny and serves a legitimate state interest in controlling health care costs.

The Sixth Circuit affirmed the judgment in all respects but remanded the case to the original district court for reduction of the non-economic damages to $359,000 in accordance with Michigan law. [20]

Final Judgment by District Court – July 2006
The lower court was to simply enter judgment according to the Sixth Circuit Court’s direction, but the plaintiff tried one last maneuver to increase the amount of damages recoverable: Smith asked the court to revise the judgment of non-economic damages to $641,000, instead of $359,000, through application of a special "higher cap" available under Michigan’s cap law. [14, 21]

Michigan caps non-economic damages at $359,000, but if one of three exceptions applies the damages are capped at the higher amount. [14] Smith argued that the exception under Mich. Comp. Law. §600.1483(1)(b) applied, which states:

“The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living.” [14]

Since death tends to cause these things, Smith pleaded for damages under the higher cap. However, the court found that Smith erred by not raising the issue at the proper time during the legal proceedings and therefore waived her rights to invoke the higher cap. [21]

Therefore, the saga ended with Smith awarded $35,000 in economic damages and $359,000 in non-economic damages.

References

  1. Smith v. Botsford General Hospital, 419 F.3d 513 (6th Cir. 2005).
  2. Smith sued under EMTALA, 42 U.S.C. §1395dd, for damages available under Michigan's Wrongful Death Act, Mich. Comp. Laws §600.2922.
  3. 42 U.S.C. §1395dd(e)(3)(A).
  4. Fed. R. of Civ. P. 26(a)(2)(B).
  5. Fed. R. Civ. P. 37 authorizes exclusion of an expert witness for a Fed. R. Civ. P. 26 violation. See Roberts v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003).
  6. 5 U.S.C. 532.
  7. Fed. R. of Evid. 803(8).
  8. Mich. Comp. Laws, Section 333.20175(6).
  9. Fed. R. Evid. 501; and see for example Burrows v. Red Bud Community Hospital District, 187 F.R.D. 606 (N.D. Cal. 1998).
  10. Smith v. Botsford General Hospital, Case No. 00-71459, Memorandum and Orders of U.S. District Court Judge Avern Cohn, September 28, 2000.
  11. Mich. Comp. Laws §600.1483. The statute actually caps damages at $280,000, but the number changes as a result of yearly inflation adjustments. This case occurred in 2003, and the adjustment applicable then capped damages at $359,000.
  12. Bryant v. Oakpointe Villa Nursing Ctr., 684 N.W.2d 864 (Mich. 2004).
  13. Smith v. Botsford, 419 F.3d 513 (6th Cir. 2005), quoting 42 U.S.C. §1395dd(e)(3)(A); (emphasis added).
  14. Mich. Comp. Laws §600.1483. The statute actually caps non-economic damages at $280,000.00 but this number changes as a result of yearly adjustment. The 2003 adjustment, applicable at the time of trial, capped damages at $359,000.
  15. Joining the majority of courts addressing the issue in finding that EMTALA's incorporation of state law extends to caps on damages. E.g., Power v. Arlington Hosp. Assoc., 42 F.3d 851, 862 (4th Cir. 1994); Valencia v. St. Francis Hosp. & Health Ctr., 03-cv-0252-LJM-WTL, 2004 U.S. Dist. LEXIS 7929, at *7 (S.D. Ind. Mar. 1, 2004) (agreeing with Power and listing cases); Barris v. County of Los Angeles, 972 P.2d 966, 973 (Cal. 1999) (same); Hughes v. PeaceHealth, No. A123782 (Or. Ct. App. Mar. 15, 2006). But see Cooper v. Gulf Breeze Hosp., Inc., 839 F. Supp. 1538, 1542-43 (N.D. Fla. 1993) (discussing the differences between medical malpractice and EMTALA and declining to apply state procedural requirements applicable to malpractice claims), and Jeff v. Universal Health Services, Inc., No.04-1507 (E.D. La. July 27, 2005) 2005 U.S. Dist. LEXIS 17819.
  16. Smith v. Botsford, 419 F.3d 513 (6th Cir. 2005), quoting Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989).
  17. See also Phillips v. Mirac, Inc., 685 N.W.2d 174, 180 (Mich. 2004), echoing the reasoning in Boyd and finding a cap on damages lawful under the Michigan constitution's analogous jury right.
  18. LensCrafters, Inc. v. Robinson, 403 F.3d 798, 806 (6th Cir. 2005).
  19. Zdrojewski v. Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002). Michigan appellate court addressing an equal-protection challenge to Mich. Comp. Laws §600.1483 concluded that the statute satisfies the rational basis test.
  20. Smith v. Botsford, 419 F.3d 513 (6th Cir. 2005). Smith filed a petition for rehearing en banc, which was denied on November 22, 2005. The U.S. Supreme Court denied certiorari.
  21. Smith v. Botsford General Hospital, 2006 U.S. Dist. LEXIS 48154 (July 17, 2006)

Patient Call Back Programs – A Safety Net
Graham Billingham, MD, FACEP
President & CEO EPIC Insurance Managers

One of the greatest strategies to decrease risk exposure in the emergency department is the implementation of a patient call back system. It is easy to design and implement, and it’s cost effective. It provides a “failsafe” mechanism to capture patients who have slipped through the cracks after being discharged or to make adjustments in the care plan. I had the opportunity to practice for many years in an ED where such a program was implemented and it was the single best program that we instituted which resulted in decreasing our exposure, improving patient care, improving customer satisfaction, and promoting our ED. Simply put, it allowed us to extend a personal touch to the community and let them know that we care.

Here are some of the lessons that we learned:

Goals

System Design

High Risk Categories (examples)

Lessons learned

Benefits

In closing, a patient call back program is an invaluable tool for quality improvement, customer satisfaction and marketing. There are multiple studies now showing benefit and increased compliance with discharge instruction and follow up care. After implementing this system, we had one lawsuit in eight years.

We had a retired nurse, “Bill,” who called back all high risk categories and any patient that the physician flagged or was concerned about. He identified many complications and worsening symptoms, provided follow up on our care, loved what he did and got excellent feedback from the community. Most of the time the response was, “You’re who and you’re calling from where? Gee, nobody ever called me back from the emergency department before.” My advice is to get yourself a “Bill” – it’s a wise investment and you will never look back.

Clinical Issues Q&A
Robert A. Bitterman, MD, JD, FACEP
EPIC Board of Governors
Claims Management Committee Chair

Who Has Liability Exposure When Specialist’s and Emergency Physician’s Opinions Differ?

Question
Our emergency physicians have a problem with one of the on-call cardiologists. After being consulted to see patients who presented with chest pain, he frequently comes to the ED and discharges the patients without speaking to the emergency physician caring for the patient, including some patients the emergency physician felt should definitely be admitted to rule out an acute myocardial infarction (AMI) or new onset coronary ischemia. The cardiologist in question insists the emergency physicians have no potential liability once he comes into the ED, examines the patients, and assumes responsibility for discharging them.

Do the emergency physicians have any continued liability exposure in these cases?

Answer
Scenario A.
If it is a borderline case where the EP is comfortable deferring to the judgment of the consulting cardiologist, then the emergency physician has no further liability. The EP has referred the patient to the on-call physician in the appropriate specialty for the definitive medical decision making regarding that disease presentation.

Scenario B.
If the EP feels strongly that the patient should be admitted, then the EP incurs additional duties beyond merely referring the patient to the on-call cardiologist.

First, the emergency physician has the legal duty to inform the patient (and it is strongly recommended that any family present also be informed) of his independent clinical impression, recommendation for admission, and the risks/benefits of not staying for further work-up, care, or observation.

Second, the emergency physician must clearly document those facts in the medical record contemporaneously– not hours later, especially not after the patient dies at home or returns in cardiac arrest. The documentation should also reflect that after discussion and consideration the patient and family elected to follow the consultant’s advice and that the consultant assumed full responsibility for the patient’s care. The entries into the medical record should be objective, simply stating the facts, and not be condescending or inflammatory.

It is true that we can transfer responsibility of care and the medical/legal liability to the consulting cardiologist, who ostensibly has greater training and expertise in the care of potential cardiac patients. Our job is to inform the patient of our professional judgment and then the patient gets to decide whose opinion to accept or reject. As always, patients control their medical care and must live (or die) with their own decisions.

Additional Comments
If such cases are handled as recommended, then the rogue hospital cardiologist is correct: the EP will not have any liability; instead he, the consultant cardiologist alone, will be liable if he negligently sends the patient home.

It's not much different that getting two opinions of whether surgery is necessary for a critical condition. If one doctor strongly recommends the surgery and the other says it's not necessary or worth the risk then whichever doctor the patient decides to ignore is not liable as long as he gave the patient his honest opinion prior to the patient's decision. The patient decides which doctor's recommendation to adopt.

Emergency physicians typically err in these situations by not telling the patient of their own recommendations prior to or after the involvement of the consulting specialist (i.e., not willing to confront the specialist or give the patient contrary advice which seems to undermine the specialist, though sometimes this happens because the specialist comes in and surprises the EP by discharging the patient without the knowledge of the EP).

Some recommended general rules:

  1. Always tell the consultant that you are asking him to admit the patient (vs. consult to help decide a course of action, such as admit or discharge a borderline case).
  2. Written medical staff by-laws must require the consultant to speak with the emergency physician PRIOR TO DISCHARGING the patient in any case where the EP called the consultant to admit the patient. It’s always best if the physicians can reach a mutual agreement on the patient’s care plan, but if not, at least they shared their reasoning and opinions in an effort to convince the other of their point of view.  (The same rule applies with residents at teaching hospitals. However, any good (non-arrogant) resident or attending/specialist on-call physician would do that anyway – just to be sure he wasn't missing a key piece of data and to address any concerns of the emergency physician prior to sending the patient home.)
  3. This medical staff rule allows the emergency physician to discuss the case with the consultant and reassess the patient/situation or interact with the patient prior to discharge. We often tell the patient we are calling a consultant to come in to see them and admit them, but don't get into the details or risk benefits of the admission/discharge issue or emphasize our concerns to the patient because we expect the consultant to proceed with the admission. If we learn that the consultant intends to discharge the patient, then our conversation with the patient and the family will be very different, in much greater detail, and more forceful (and much better documented).  
  4. The medical staff should have a mechanism in place to deal with recalcitrant physicians on staff. Additionally, hospital risk management and/or legal counsel can be involved as necessary to ”educate” the on-call cardiologist.
  5. A good method for an emergency physician to deal in real time with an attending whose judgment is suspect or whose antics jeopardize patient safety is to inform the patients in advance (in a nice way) that you definitely plan to admit them, and if the consultant recommends a different course, you need to sit down with them to discuss the issues some more, including potential options, and come up with a mutually agreeable plan before the patient leaves. This way the patient knows not to leave the ED before talking with you. This ”heads-up” defensive practice can literally save patients’ lives, as well as markedly diminish the potential for litigation.

Emergency physicians are actually much better than any other specialist on the medical staff at determining who needs to be admitted and who doesn't because of our unique experience; specialists tend to think within their narrow spectrum rather than the overall big picture of critical diseases. For instance, a cardiologist may only consider whether the patient needs to be admitted for acute coronary ischemic syndromes, and miss the pulmonary embolism or aortic dissection. Trust your judgment, and be sure your patient benefits by it.

Liability for Changes in the Interpretation of Imaging Studies

Question
Help! I’ve been sued for missing a subarachnoid hemorrhage in a headache patient seen on a busy Saturday afternoon shift. A moonlighting radiologist interpreted the head CT scan as ”negative for bleed,” so I sent the patient home. Sometime mid-morning the following Monday one of our full-time radiologists who specializes in CT, read the imaging study as ”obviously positive for acute subarachnoid hemorrhage.” For ”yet to be determined reasons” the patient wasn’t contacted and informed of the change in reading until late Tuesday, and she is now a vegetable.

Who is liable for the patient’s damages; me, the first radiologist, the second radiologist, or the hospital?

Answer
The short answer is that all four parties are probably liable.

Our last issue of the newsletter addressed the question of preliminary radiographic imaging studies and incorporation of those readings into the patient’s permanent record. This time we address the issue of changes in the interpretation of a preliminary or ”wet” reading after the patient has left the emergency department.

First radiologist
Relatively straightforward analysis: if the moonlighting radiologist fell below the standard of care in interpreting the images for subarachnoid hemorrhage (SAH), then he or she will be liable for a share of the damages awarded the patient. His proportional amount will be decided by a jury if the case goes to trial or by the multiple insurance companies involved if the case is settled without a trial.

Second radiologist
The CT specialist over-reading the film could be liable on a couple of theories. First, does re-reading the film almost 48 hours after the patient left the ED fall within the standard of care? Especially a study that literally could make a difference between life and death of the patient? How do you think a jury would rule?

Second, the radiologist detecting a true life-threatening emergency medical condition on the study has a duty to inform the patient of the findings on a timely basis. That certainly didn’t happen here, for ”unknown” reasons. If the radiologist gets past a claim of reading the film too long after the patient left the ED, then he could conceivably not be liable if the patient was already headed down the tubes by the time he read the film. In other words, if immediate notification of the patient wouldn’t have changed her clinical outcome, then there is no ”causation” connection; the radiologist didn’t contribute to the patient’s adverse outcome.

The hospital
The hospital will almost certainly be liable. The ”unknown reasons” why the patient wasn’t informed on a timely basis almost always fall in the hospital’s domain. The radiologist could have failed to notify the emergency department of the acute SAH, an emergency physician contacted by the radiologist could have been distracted by the vagaries of a busy department and neglected to contact the patient, a nurse could have failed to tell the EP in with a major trauma patient that the radiologist just called and needed to speak to him about a critical finding, or any number of things could have gone awry to break the communication chain. The hospital will usually be vicariously liable for the actions of all the individuals involved in the process.

The hospital had a duty to ensure that an appropriate and timely reporting system existed and functioned appropriately. The JCAHO and Medicare conditions of participation both require hospitals to have policies and procedures in place to resolve all differences in the interpretations of ED x-rays and  imaging studies between the emergency physician and the radiologist and between the preliminary radiologist’s reading and the final radiologist’s reading.

Interestingly, if the patient could have been saved by timely notification of the second radiologist’s interpretation of the CT scan by the hospital or the first radiologist, then the first radiologist may get off the hook. He can argue that there existed a superseding intervening cause of the patient’s injuries, and but for those intervening actions the patient wouldn’t have suffered the injury. In other words, if the second radiologist, the hospital, and the emergency department would have had their act together the patient would have been saved. Their negligence, assuming it was unforeseeable, is a legal defense for the first radiologist’s negligence. If tried to a jury, however, the jury would typically hold all the negligent parties liable for at least some portion of the damages, spreading the blame among the parties as it judged them culpable.

Note that the hospital has the same potential defense as the second radiologist – if timely notification would not have changed the patient’s outcome, then no causal connection exists between the hospital’s negligence and the patient’s injuries.

Emergency physician
So if all that is true, why am I liable? It is likely that you were negligent because of failure to perform a lumbar puncture (LP) on the patient when she initially presented on Saturday afternoon, which undoubtedly would have detected the disease. If you order a CT scan to ”rule out bleed,” then it is incumbent upon you to do the LP, since the science tells us that CT scans still miss a significant percent of subarachnoid bleeding, and the consequences of missing this entity are catastrophic. True, newer CT scanners are highly accurate, particularly in the 12-18 hour window after the aneurysm started hemorrhaging.

Since your question left out the clinical details, a timeline, and possible discussions with the patient regarding the science/potential LP – I only arbitrate you ”likely negligent” – but this exact scenario is a very common cause of much malpractice monies paid out by insurance carriers on behalf of their insured emergency physicians.

Final Word
Any material change in the interpretation of the reading of the imaging study by the over-reading radiologist must be communicated immediately – verbally and in writing – directly to the emergency physician on duty in the ED. The emergency physician should review the situation in light of the change in radiological interpretation and arrange for appropriate care of the patient and document same in the patient’s permanent medical record.

Such radiology imaging follow-up systems (and the same applies for critical EKG over-reads, lab tests, and cultures that come back after the patient leaves the ED) are crucial to avoiding liability related to a whole batch of encounters for emergency physicians, such as fractures, wound foreign bodies, intracranial hemorrhages, pneumonias, and lung ”spots” that turn out to be cancerous.

Hospital, radiologists, and emergency physicians must all work together to create and implement a follow-up system in their institution that works each and every time to the patient’s benefit.

Resources

Emergency Medicine Patient Safety Foundation Update
Dianne Vass
Executive Director EMPSF

In September 2006, the Society for Academic Emergency Medicine (SAEM) and EMPSF approved joint sponsorship of an Emergency Medicine Patient Safety Research Fellowship for 2007 – 2008. The primary goal of the program is to conduct original research that leads to the improvement of patient care through patient safety initiatives in the emergency department. The one-year research fellowship grant will provide up to $75,000 in funding, and will be offered to senior residents and junior faculty who are board eligible or board certified in the field of emergency medicine. The fellow will be required to have a mentored experience in a supportive research environment and complete a scientific project. Specific project examples could include research of existing medical malpractice claims data, development of risk reduction and prevention tools, development of emergency medicine protocols and guidelines, or improving pediatric care in the emergency department. The application deadline is January 30, 2007. Applications will be available from EMPSF on the website (www.empsf.org) in early November.

We will present the 2006 Stuart Fleming Patient Safety Award at the national ACEP conference in New Orleans. The awards ceremony will be held at The Marriott Hotel on October 15 during a joint EMPSF-EPIC reception. The award is given to the EPIC-insured group that has shown an outstanding commitment to our patient safety objectives. The award is inspired by the late Dr. Stuart Fleming, who was an early advocate of patient safety in emergency medicine and a founding member of EPIC.

During the remainder of the year, we will continue our pursuit of funding sources for research and our focus on providing education for physicians and patients. For more information about the foundation, visit www.empsf.org.

News Briefs
Robert A. Bitterman, MD, JD, FACEP
EPIC Board of Governors
Claims Management Committee Chair

Tired, overworked interns suffer needle sticks
A survey of 2,737 interns at US hospitals published in JAMA found that those first year physicians working extended work hours and night shift had a higher incidence of needle sticks or other percutaneous injuries, thus increasing their exposure to potentially contaminated fluids. The injuries were twice as frequent during the night as during the day. The study was published in the September 6, 2006 issue of the Journal of the American Medical Association (JAMA) and can be found at http://jama.ama-assn.org/cgi/content/full/296/9/1055.

Architects recommend private rooms to improve patient safety in hospitals
The American Institute of Architects (AIA) new 2006 guidelines say private patient rooms should be the standard for all new hospitals. The AIA recommendations, which are used as the basis for hospital building regulations in 42 states, say private rooms address safety, noise, and privacy issues in adult acute-care hospitals.

A panel of 124 doctors, hospital administrators, infection control experts, engineers, and architects stated that building design can reduce medical errors and curb infections. According to the panel, single-patient rooms decrease the spread of infectious diseases between patients and other staff members, decrease the possibility of misidentifying patients, and facilitate compliance with federal privacy rules.

The new recommendations apply only to patients in medical, surgical, and post partum units. They do not affect units where the panel felt roommates could be beneficial, such as newborn nurseries, geriatric facilities, or psychiatric units. .

Additional information on the new AIA guidelines: http://http.aia.org/ev_aah_guidelines.

FDA seeks comments on guidance related to emergency research
The Food and Drug Administration recently published draft guidance on the conduct of research in emergency settings when investigators request an exception from informed consent requirements under the FDA’s emergency research regulations. The guidance also addresses additional human subject protections required for emergency research.

The FDA is seeking comments from the expert community and other interested parties on the issue. Once finalized, the FDA’s directives are intended to help institutional review boards, clinical investigators and sponsors in the development and conduct of emergency research.

The action was prompted by Senator Charles Grassley after the recently highlighted clinical trial, given advanced approved by the FDA, of administering artificial blood to unconscious major trauma victims in the pre-hospital setting to compare its efficacy to normal saline on morbidity and mortality.

For more information see http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-14262.pdf.

CDC finds 51.3 million Americans uninsured for at least part of 2005
According to the Centers for Disease and Control (CDC), in 2005 approximately 41.2 million persons of all ages (14.2% of the U.S. population) were uninsured at the time of the interview and 51.3 million (17.6%) had been uninsured for at least part of the year. 

Among the 20 largest states, the percentage uninsured ranged from a high of 24.6% in Texas to a low of 6.5% in Massachusetts.

For children under the age of 18 years, the percentage uninsured was 8.9% in 2005, which continues a declining trend every year since 1997.

The CDC report is available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/insur200506.pdf.

Senate hearing on special health courts
The Senate Health, Education, Labor and Pensions Committee held a hearing in late June to consider legislation creating health courts as an alternative to the current medical malpractice system.  The hearing examined S.1337, legislation sponsored by Committee Chairman Sen. Mike Enzi (R-WY) and Sen. Max Baucus (D-MT), which includes funding for state demonstration or pilot programs to implement alternatives, including health courts, to the current medical malpractice legal dispute system.

The new health courts would utilize full-time judges specializing in medical malpractice cases. The court, not the parties, would choose impartial medical experts to testify, and winning plaintiffs would be reimbursed for their medical costs and lost income, plus a fixed amount via an award schedule.  Both proponents and opposing witnesses testified at the hearing on both sides of the idea and on the overall issue of whether the current medical malpractice system is broken to the point that novel approaches are needed.

Health care providers felt that the new courts would insert more fairness and reliability into the system, reduce the number of specious malpractice claims and litigation costs, and lower health care costs and medical malpractice insurance premiums. Lawyers groups, such as the American Trial Lawyers Association, and some consumer advocacy groups were concerned that the model would deny access to jury trials for injured patients.

Center for Legal Policy at the Manhattan Institute studies impact of litigation on U.S. health care
A recent study of the impact of health care related litigation on doctor shortages, hospital closures, diminished access to emergency services, and the arrested development of life-saving vaccines and innovative drugs makes for fascinating, but disheartening reading. The publication is titled “The Lawsuit Industry's Effect on American Health, 2005”.

Go to http://www.triallawyersinc.com/healthcare/hc02.html to view the study.

MRSA a greater public health threat than SARS or ”Bird Flu”
Methicillin-resistant Staphylococcus aureus infections (MRSA), according to infectious disease experts, may be a more immediate threat to public health than SARS or avian influenza. The bacteria is carried by an estimated 2.3 million Americans and easily travels by skin-to-skin contact or shared personal items, causing outbreaks among healthy athletes, prisoners, and military trainees. IV drug users, male homosexuals, and persons in health care settings are also at high risk.

The CDC estimates that MRSA causes about 90,000 serious infections and kills 17,000 people a year. A recent report in the New England Journal of Medicine* found that MRSA is the most common cause of adult skin infections treated in large city emergency departments. Despite the accelerating incidence of MRSA infections, only 13 states require public reporting of hospital-acquired infections (including MRSA). Legislation is pending in a number of states; contact your representatives.

Preventative efforts range from requiring health care providers to sanitize their hands between patients to testing and isolating carriers of the bacteria when they enter the hospital.

*[Moran GJ, Krishnadasan A, Gorwitz J, et al. Methicillinresistant S. aureus infections among patients in the emergency department. N Engl J Med 2006;355:666-74.]

ASHRM provides guidance on how to disclose adverse events to patients
The American Society of Hospital Risk Management (ASHRM) recently published a booklet addressing the disclosure of adverse events or unanticipated outcomes to patients and families. It addresses such issues of when, how, and what to say during disclosure, and provides organizational scenarios and strategies for implementing and enhancing the practice of disclosure. The table of contents may be previewed on the ASHRM web site.

The 44-page booklet ”Risk Management Pearls on Disclosure of Adverse Events” is available at www.ashrm.org, or by phone (800) 242-2626. (Request item # 178571.)

Board of Governors & Committee Members

Board of Governors

Victor Miranda, MD, Chairman
Robert A. Bitterman, MD, JD, FACEP
Edward Boudreau, MD, FACEP
Michael C. Choo, MD, FACEP, FAAEM
Robert G. Ripley, MD, FACEP
Bartholomew G. Nyhan, MBA, CLU

EPIC Committee Membership

Audit Committee                                                                
Mark VanMeter, Chair
Robert A. Bitterman, MD, JD, FACEP

Emergency Department Information Systems
Frank Orth, DO, FACEP, Chair
John M. Strayer, MD, FACEP, Co-Chair
                                                                                                               
Patient Safety & Risk Management Committee
Jonathan E. Laine, MD, FACEP, Chair
Christopher Goliver, MD, FACEP, Co-Chair
Brian Robb, DO, FACEP
Mag Greig
Robert Orosz, DO, FACEP
Patrick Johannes, MD, FACEP
Scott Welden, MD, FACEP
Russell Rudy, MD, FACEP
Randal D. Bensen, MD, FACEP

Claims Management Committee
Robert Bitterman, MD, JD, FACEP, Chair
Dennis Block, DO, FACEP, Co-Chair
George Dengler, DO, FACEP
Thomas Gutwein, MD, FACEP
James Foster, MD, FACEP
Richard Garrison, MD, FACEP
Jeff Wright, MD, FACEP

Finance & Investment Committee
Robert Jasper, MD, FACEP, Chair
Jay Taylor, MD, FACEP, Co-Chair
Bartholomew G. Nyhan, MBA, CLU
Michael Choo, MD, FACEP, FAAEM
Paul Fleming, MD, FACEP
Mark Jacoby, CPA
Karen Massey, MHA, CMPE, CMSM

Underwriting & Marketing Committee
Christian Burke, MD, FACEP, Chair
Ameet Deshmukh, MD, FACEP, Co-Chair
Bartholomew G. Nyhan, MBA, CLU
Sean Fulton, MD, FACEP
Frank Kaeberlein, MD, FACEP
Mark Menadue, DO, FACEP
Christopher Pund, MD, FACEP
Jon Vargas, MD, FACEP
Edward Boudreau, DO, FACEP, FAAEM

EPIC Insurance Managers

Senior Management Team
Graham T. Billingham, MD FACEP, President & Chief Executive Officer
James T. McMahon, Senior Vice President & Chief Operating Officer
Douglas D. Wisman, Senior Vice President & Chief Financial Officer
Mick Parmentier, Vice President, Claims
Grace Crisostomo, Director of Underwriting
Shawn Mountcastle, Director of Operations

Emergency Medicine Patient Safety Foundation Management Team
Dianne Vass, Executive Vice President & Chief Operating Officer
Jennifer Terhorst, Operations Coordinator

The EPIC Report is published quarterly by EPIC Insurance Managers for members of the physician-owned Emergency Physicians Insurance Company Risk Retention Group (EPIC). Letters to the editor and articles, to be edited and published at the editor’s discretion, are welcome. Views expressed in letters to the editor are those of the writer and do not necessarily reflect the opinion or official policy of the EPIC RRG or EPIC Insurance Managers. Please sign letters and address them to the editor or send them via email to editor@epicrrg.com.

Publisher: EPIC Insurance Managers, Inc.
Editor: Michelle Hoppes
Managing Editor: Shawn Mountcastle
Web Master: Jason Fontaine

EPIC Insurance Managers publishes The EPIC Report to inform emergency medicine member groups insured by the Emergency Physicians Insurance Company Risk Retention Group (EPIC) on issues pertinent to emergency medicine and professional liability insurance. Any recommendations found in the newsletter are intended as guidelines, not standards of care, and do not ensure successful outcomes. Any guidelines address principles of the practice of emergency medicine, and are not inclusive of all proper methods of care nor exclusive of other appropriate methods. Treatment decisions must be made by individual health care providers within the context of specific situations and in accordance with the laws of the jurisdiction in which the care is provided.

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