The EPIC Report - Spring/Summer 2006

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

Spring/Summer 2006 - In this Issue

Message from the Chairman
Evaluating Medical Malpractice Claims
The Evaluation for Cardiac Chest Pain in the ED – A Risk Management Approach (Summary)
Cookbook Medicine
Risk Management Program Update
Emergency Medicine Patient Safety Foundation Update
News Briefs
Conferences
Board of Governors & Committee Members

Chairman’s Note
Victor Miranda, MD
President & CEO, StatCare
Chairman, Board of Governors

EPIC is changing the face of medical malpractice insurance. By partnering with emergency medicine physicians who are willing to commit to raising the standards of patient safety, EPIC is creating the solution to the continuing medical liability crisis we face. This commitment to best practices and patient safety ultimately leads to the reduction of risk factors that lead to malpractice claims. This, in turn, leads to stable and affordable malpractice insurance rates.

EPIC’s affiliations with the Emergency Medicine Patient Safety Foundation (EMPSF) and Patient Safety & Risk Solutions LLC offer benefits for EPIC policyholders that support a collaborative approach to the reduction of errors in the practice of emergency medicine.

As incoming Chairman of the Board I am committed to preserving EPIC’s progressive vision of improving the care being provided in emergency rooms across our nation.

Evaluating Medical Malpractice Claims
Tamara LeFevre, JD
Western Litigation Specialists, Inc.

Common sense suggests that a medical malpractice claim's failure or success would rest solely on the answer to one question: did the physician provide proper care and treatment to the patient? From a legal standpoint, that is indeed the key question that must be answered by a judge or jury. However, when fully evaluating the likely success of a medical malpractice claim, the question of whether the physician provided proper care is really only the starting point.

The required legal elements that must be determined in a medical malpractice claim are negligence, damages, and causation. A plaintiff must prove that the physician breached the “standard of care” (i.e. acted negligently) and that such negligence caused the claimant to suffer “damages.” Consideration must be given, however, to a number of other factors in order to determine whether a medical malpractice claim should be settled or fully defended. And the decision to settle or defend may change as the claim progresses.

The Standard of Care

The "standard of care" is defined as that care which a reasonable physician in the same or similar circumstances would have provided. If the physician did not adhere to the standard of care, he is negligent. In order to prove negligence, the plaintiff must retain an “expert” physician to provide testimony that the defendant breached the standard of care. Each party must have supportive expert testimony in order to pursue or defend the claim.

Damages

What happened to the patient as a result of her injury/illness and the alleged improper treatment? Has she recovered completely? Is she deceased? Disabled? Will she require additional future surgeries or treatment? The term "damages" is defined as the consequences – physical, emotional, and financial – that the patient has incurred due to the physician’s alleged negligence. Part of assessing the value of a claim is determining how much a jury is likely to award to the plaintiff for his damages should the jury decide that the physician violated the standard of care. The evaluation of damages is separate and apart from the evaluation of whether there is liability on the part of the physician. Damages can exist regardless of whether the physician’s care was superb or sloppy.

Example: A patient who is paralyzed as a result of a back fracture has damages whether he received good care or negligent care – he is paralyzed regardless. In fact, when damages are catastrophic and the plaintiff comes across in a sympathetic way, some juries will tend to award a verdict in favor of the plaintiff even if they do not really think the physician was negligent.

Causation

The final necessary element is “causation,” which is the link between negligence and damages. Even if the physician was negligent in his care and the plaintiff suffered damages, the plaintiff still has to prove that the negligence caused the damages in order to be compensated.
Example: An emergency medicine physician fails to diagnose a fractured arm in a young athlete when the patient presents soon after the injury, because the doctor neglected to order an x-ray. A few hours later, the injury is diagnosed by another physician at a different hospital, but it is determined that the delay did not change the patient’s outcome. The first physician’s failure to diagnose the injury did not cause the patient’s damages. If the first physician’s failure to diagnose did affect the outcome (i.e. lost opportunity for surgical repair), then causation would exist.

Other Factors to Consider

There are many other factors that affect the value of a case, whether they should or not. The following are a few examples.

Patient's Demographics
How old was the patient? Was he otherwise in good health? Was he married? Did he work, and if so, what was his income? Did he have minor children still depending on him financially? Is the patient of the same racial and socioeconomic class as most of the jurors will be?
Venue
An identical injury in an identical patient who received identical medical care will have a different value in one county than it does in another. Where a case is pending is a crucial factor in determining what a likely verdict will be and what the physician’s chances of success are in defending himself. Some counties will have more liberal or plaintiff-friendly jurors than others.
State Laws
While states have similar basic procedural laws regarding medical malpractice claims, differences do exist. For example, some states have a cap, or maximum amount, that a plaintiff can recover, while others do not. Pertinent statutes and case law in a particular state affect the level of risk a physician faces in a medical malpractice case.
Effectiveness as a Witness
Juries make decisions based on who they believe. Even if a physician provided excellent care, if she cannot explain in an effective way her thought process and the treatment she provided, the jury may not find her to be credible or may simply not understand the medicine well enough to determine whether the standard of care was met. Similarly, if a plaintiff comes across as sincere, sympathetic and likeable, the jury may find in the plaintiff’s favor regardless of the facts of the case.
Finger Pointing Among Defendants
When there are multiple defendants in a case and one or more tries to shift blame to another defendant, the defense of the case becomes more complicated, expensive, and often compromised. When defendants are fighting amongst themselves, juries sometimes choose to simply hold all the defendants responsible rather than try to sort out liability. This scenario can also make it difficult for a physician to settle the case, as the plaintiff’s counsel in this situation will typically refuse to settle with just one defendant; instead, he will settle only if all defendants settle together at the same time.
Plaintiff Counsel's Ability
Is plaintiff’s counsel experienced and savvy? Or mediocre and lazy? It makes a difference. Just as the physician needs a qualified, experienced attorney defending him, the plaintiff needs an equally good advocate to present her case. Cases with more merit often have better plaintiff’s counsel handling them than cases in which the injury is minor or the matter is frivolous. A good plaintiff’s attorney can increase the likely value of a case.
Strength of Expert Witnesses
Both parties must have an expert witness at trial, and each side’s expert will have conflicting positions about the care and treatment, as well as possibly causation of damages or the extent of damages. Thus, it stands to reason that the stronger and more convincing one party’s expert is, the better chance of success that party has of winning the case. In a case where there are problems with the physician’s care, it can be difficult to find an expert physician who is able to solidly support the physician’s care and withstand plaintiff’s counsel’s cross examination during a deposition or at trial. When faced with that situation (or no supportive expert at all), settlement is often a good option for the physician.
Miscellaneous Factors
Unique factors may arise in a particular case, such as a physician whose spouse dies a couple of months before trial, and the court refuses to continue the trial to a later date. If the case is not solidly defensible and the physician cannot present well at trial, it may be better to settle the case in light of the circumstances, even though the original plan was to defend it. Another example would be video surveillance of a plaintiff, who has claimed to be very disabled, that shows the plaintiff getting around perfectly fine. While the physician and his carrier may have been considering settlement of the case, they now may want to defend the case or at least settle for less money than they would have before.

Conclusion

The evaluation of a medical malpractice claim is multi-faceted and evolves as the discovery process of the claim progresses. Some factors are pre-determined (like venue and the patient’s demographics), and others are not (like what kind of witness the plaintiff will be). Unfortunately, one thing is clear – it’s not all about medicine.

Tamara LeFevre, JD, Has 17 years of experience as an attorney as well as a keen interest and a degree in psychology. She practiced law in Houston, Texas, defending physicians in medical malpractice suits until she joined Western Litigation Specialists, Inc. (WLSI) eight years ago. WLSI is a third party administrator that provides claims management services to EPIC and other insurers as well as self-insured health care providers. For additional information, go to www.epicrrg.com and www.wlsi.com.

The Evaluation for Cardiac Chest Pain in the ED – A Risk Management Approach (Summary)
Robert A. Bitterman, MD, JD, FACEP
Vice President, EPIC Board of Governors
Chairman, Risk Management & Patient Safety Committee

The objective of this article is to provide a practical, scientifically sound, risk management-based approach to the evaluation and management of chest pain in the ED to enhance patient safety and minimize litigation losses from missed acute myocardial infarctions (AMI).

Summary

Chest pain is one of the most common complaints seen in the ED, representing five to eight percent of all ED visits; and coronary artery disease (CAD) is the leading cause of death in the United States – accounting for roughly 20% of all deaths each year.

Missed acute myocardial infarctions cause by far the largest litigation losses for emergency physicians, approximately 30% to 35% of all dollars paid out in malpractice claims, though they account for only 10% to 12% of the total number of malpractice cases. Missed diagnosis of myocardial infarction in middle age females who present with a chief complaint of chest pain has also been identified as a malpractice trend.

It has been estimated that emergency physicians miss two to six percent of AMIs that present to the ED, doubling the mortality compared to patients admitted to the hospital. Furthermore, this incidence has remained relatively unchanged over the past two to three decades, except in larger centers with chest pain observation units and availability of 24/7 cardiology back-up. Recent studies provide evidence that these “chest pain units” markedly reduce missed cardiac ischemic presentations and litigation losses.

Four main factors contribute to the litigation losses related to missed AMIs.

Missed history and physical examination errors.
EKG interpretation errors: from misreading the EKG or failing to compare an available prior EKG.
Failure to detect “atypical” presentations of cardiac ischemia: “Atypical” presentations are much more common than might be expected by emergency physicians.
Failure to appreciate known science related to the diagnosis of AMI.
- Over-reliance on identification of CAD risk factors.
- Bedside maneuvers such as chest wall palpitation, GI cocktails, and administration of nitroglycerin are inconclusive in ruling out AMI.
- Use of diagnostic testing should be administered serially as initial EKG and cardiac enzymes do not give adequate data to rule out AMI.

Emergency physicians and hospitals should focus on the following changes:

Develop a chest pain protocol, guideline and/or order set.
Establish criteria for triage nurses to initiate the ED’s “chest pain guidelines.”
Establish nursing directives as part of the hospital’s ED “chest pain guidelines.”
Establish clinical risk stratification parameters to guide evaluation and management algorithms.
Utilize chest pain testing protocols for intermediate- and low-risk patients.
Observe patients in either a “Chest Pain Center,” or if you do not have a CPC observe them or admit the patient.
Include a set of negative cardiac markers in younger patients who present with chest pain. This would reduce the risk of the initial diagnosis of ACS or 30-day adverse cardiovascular events to less than 0.2%.
Establish EKG parameters.
Establish cardiac biomarker parameters the ED will utilize to rule out AMI.
Decide how to handle patients presenting with chest pain after using cocaine.
Decide whether to offer provocative cardiac stress testing.
Establish an ED chest pain chart documentation audit tool and CQI program.
Establish on-going education regarding the evaluation of chest pain patients in the ED.
Decide whether to use financial incentives to drive physician behavior in regards to practice guidelines within the group.

Conclusion

AMI can be a difficult diagnosis and missing ischemic cardiac etiologies can lead to catastrophic results. Unexplained chest pain should be considered to be due to cardiac disease until you prove otherwise. In this low probability-high mortality and high medical-legal liability medical decision making process, the emergency physician should err on the side of patient safety. Keep these patients for serial observation, serial testing and examinations, admission, or cardiology evaluation.

Find the complete white paper at www.epicrrg.com/whitepapers/chestpain_rbitterman.pdf

Cookbook Medicine
Graham Billingham, MD, FACEP
President & CEO EPIC Insurance Managers

One of the common objections heard in attempting the adoption of guidelines or best practices is that “it’s cookbook medicine.” Each of us trained to be specialists and to rely on our clinical judgment when examining and caring for patients. No one can replace that expertise or medical decision thought process when you are in the heat of the battle. However, for some high risk complaints, perhaps a “cookbook” approach isn’t such a bad thing.

For example, 90 percent of what comes through the ED door doesn’t fall into the realm of high risk complaints, but for the other 10 percent that are potential high risk diagnoses, perhaps having a recipe isn’t a bad idea. At the risk of over-playing the aviation analogy, every pilot has a preflight check list, and take off and landing (high risk) procedures are checked and confirmed and reconfirmed by a second party. When there is an engine failure, again, there is a rigid series of procedures which are laid out and rapidly executed – not a lot of room for second guessing or individuality in an aviation emergency and the pilot still makes the final decision. Would you fly on a plane where these standards weren’t adhered to? Do our patients expect anything less?

The literature on missed MIs further bears this out. The science says we aren’t very good at detecting cardiac disease and we are still missing four to five percent. I’m still comfortable being “captain of the ship” and retain the ability to make the final decision, however, I welcome a tool or prompt that helps me to make a better clinical judgment for high risk cases. I don’t see the two as being mutually exclusive and if the outcome is better patient care, it’s hard to argue with. Food for thought.

Risk Management Program Update
Michelle Hoppes, RN, MS, DFASHRM
President & CEO Patient Safety and Risk Solutions

Patient Safety and Risk Solutions LLC (PSRS) is the risk management service provider for EPIC insured clients. Michelle Hoppes RN, MS, DFASHRM is the CEO of PSRS and the lead staff person for coordinating the risk management and patient safety services as directed by the EPIC Board of Governors.

The risk management program is primarily focused on loss reduction, performance improvement, support, and pre-insurance risk assessments.

The Risk Management Service Plan includes:

Claims analysis and risk reduction plans

Clinical focus

Education

Web based
Chest pain
Risk management foundation

Resources

MD Intranet
Newsletters
E-mail alerts
Clinical protocols and guidelines

Audits

Clinical focus—current audit is chest pain
Physician driven

Support

Risk assessments and post insurance action plans
Quarterly calls/visits
Focused RM plans for claims frequency/severity

Contact Michelle Hoppes with any questions/suggestions: mhoppes@psrisk.com or at 517-881-8987.

Emergency Medicine Patient Safety Foundation – Update
Dianne Vass
Executive Director EMPSF

We are pleased to announce that our application for 501(c)(3) non-profit status has been approved by the IRS. This will allow us to focus and expand our fundraising and research efforts in the future.

Over the past several months, we have had discussions with several organizations to establish a Patient Safety Fellowship in Emergency Medicine. The fellowship would be for one to two years and would consist of both specific training in patient safety as well as a research project.

Our support for senior residents in emergency medicine will continue this year as we sponsor educational grants for patient safety and risk prevention projects in the emergency department. We hope to be able to expand last year’s program to five grants in 2006.

We continue our focus on risk reduction, claims prevention, and patient safety efforts and have made many contacts and partnerships in the last quarter. In partnership with EPIC, we have focused on the issue of missed MIs in young females and are developing tools and resources to improve the early detection of these patients.

We have been monitoring the Patient Safety Organization (PSO) discussions at the federal level in conjunction with the Patient Safety and Quality Improvement Act of 2005. It is too soon to tell if EMPSF will qualify to become a PSO as the requirements are still being deliberated.

Look for our updated website this summer to include information on injury prevention and patient education (www.empsf.org).

News Briefs

Graham Billingham, MD New CEO of EPIC Insurance Managers

EPIC Insurance Managers (EIM), the Attorney-in-Fact for Emergency Physician’s Insurance Company Risk Retention Group (EPIC), appointed Graham Billingham, MD, FACEP President & Chief Executive Officer on June 1, 2006. Dr. Billingham succeeds Bartholomew G. Nyhan, MBA, CLU as CEO. Mr. Nyhan will continue to be involved with EIM as its Chairman and as a member of the Board of Governors of EPIC.

EPIC RRG Launches New Website

EPIC RRG launched a new website with an updated look, easier navigation, and more content. The improvements are too numerous to catalog. Some of the more exciting changes include: A video in which Dr. Graham Billingham talks about EPIC’s vision and value on the home page; late-breaking emergency medicine related headlines and a search link to Medline on the News page; and logins to the EPIC Intranet and to Board of Governors documents, as well as instructions about claims on the Owners page. Visit www.epicrrg.com to see it all for yourself.

Conferences

Venue	Location	Date
Michigan ACEP	Acme, MI	July 9 – 12
Ohio ACEP	Columbus, OH	July 14 – 19
Ohio ACEP Emergency Medicine Review Course	Columbus, OH	September 14-17
ACEP SA	New Orleans	October 15 – 18

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
James S. Leftwich
Bartholomew G. Nyhan, MBA, CLU

EPIC Committee Membership

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

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.

EPIC Insurance Managers, Inc.
11760 Atwood Road, Suite 5
Auburn, CA 95603
Phone 866.374.2457
www.epicrrg.com