Malpractice UpdateJim Allen, MDMedical Director, University Hospital EastProfessor of Internal MedicineDivision of Pulmonary & Critical Care MedicineThe Ohio State University Wexner Medical CenterSome questions youshould never ask: Is that your real hair color?Are you pregnant?Did you have a face lift?Does this dress make me look fat?Have you ever been sued before?1

Some Statistics Percent of physicians sued by age 65: 75% of physicians in low risk specialties 99% of physicians in high riskspecialties 7.5% of physicians are sued each year Residents & fellows can be sued 10% of suits actually lead to trial Plaintiffs win 27% of cases in trial 86,000 physicians have had at least onemonetary judgment against themPersonal Injury LawsuitsU.S. Department of Justice, Bureau of Justice Statistics 2005 data2

Personal Injury: Plaintiff Success RateU.S. Department of Justice, Bureau of Justice Statistics 2005 dataPersonal Injury: Median damagesU.S. Department of Justice, Bureau of Justice Statistics 2005 data3

How Common AreMedical Errors? 44,000 to 98,000 medical error deaths per year Institute of Medicine “To Err Is Human” 1999 1.5 million medication errors per year Institute of Medicine 2006 15% of diagnoses are erroneous Am J Med 2008; 121 (5A), S2-23 210,000 to 440,000 medical error deaths per year Journal of Patient Safety 2013; 9:122-8How much doesmalpractice cost theUnited States?4

National PractitionerDatabank Administered by the U.S. government Database of: Medical malpractice paymentLoss or restriction of medical licenseAdverse clinical privileging actionsNegative finding by state medical boardsNegative action by private accreditation organizationExclusion from Federal or State health programs Access: hospitals, professional societies,state/federal licensing bodiesHow Much Does Malpractice Cost? Total 2014 National Practitioner Data Bank: 3.9 billion 12 per American5

2014 National Practitioner Database Data:Total AmountPer CapitaOhio 67 million 5.77Pennsylvania 346 million 27.06Michigan 80 million 8.11West Virginia 28 million 15.29Indiana 95 million 14.41Northeastern United States has the highest per capita pay-outs:New York: 36.15New Jersey: 29.59Pennsylvania: 27.06Massachusetts: 26.26Rhode Island: 24.29Source: Diederich How Much Does Malpractice Cost?Estimated Cost (Billions)Indemnity Payments 5.72Administrative Expenses 4.13Lost Clinician Work Time 0.20TOTAL 10.05Cost per American 31/yearDefensive Medicine Estimated Cost: 45.59 billionTotal Cost per American 174/yearHealth Affairs 2010; 29:1569-76126

Obstetrics: 1 out of 3,711 births results in a malpracticeclaim Average value (including defense) of OBclaims is 1.1 million Cost per delivery to cover liability 296Is Malpractice Included InPhysician Fees? Level 4 OP new visit (99204): 3.67 RVUs 131.22 2.43 wRVU 86.88 1.02 eRVU 36.47 0.22 mRVU 7.87 Malpractice expense accounts for 5-6% of Medicarenew patient reimbursement Level 4 OP return visit (99214): 2.21 RVUs 79.02 1.50 wRVU 53.63 0.61 eRVU 21.81 0.10 mRVU 3.58 Malpractice expense accounts for 4-5% of Medicarereturn patient reimbursement7

Who gets sued inthe United States?Probability Of A Malpractice ClaimInternistsSurgeonsJena AB et al. N Engl J Med 2011;365:629-636168

Annual Probability Of A Malpractice ClaimJena AB et al. N Engl J Med 2011;365:629-63617Male Physicians Are 2.5 Times MoreLikely To Be Sued Than FemalePhysiciansBMC Medicine 2015 13:172 doi:10.1186/s12916-015-0413-5CC BY: BMC Medicine.

Do Hospitalists Have Higher MalpracticeRisk? Database of 52,000malpractice claimsfrom 20 insurers(30% of all U.S.closed claims) 1997-2011J Hosp Med 2014; 9:750-519Payment Amounts By Malpractice AllegationSource: Diederich 10

Where Injury Took PlaceSource: Diederich Average Claim By Hospital Type:2211

Average Payout Amounts Quadriplegic, brain damage, life careMajor permanent injurySignificant permanent injuryDeathMinor permanent injuryMajor temporary injuryEmotional injuryMinor temporary injuryInsignificant injury 944,664 574,344 426,918 355,231 231,377 198,587 104,892 76,056 33,696Source: Diederich ayment Is Less For ClaimsThat Close Quickly:Time ToClose 1 year:1-2 years2-3 years3-4 years4-5 years5-6 years6-7 years 7 yearsNumber IndemnityPayment665 111,704706 421,136492 444,095281 462,652138 585,18559 438,82230 1,124,31848 580,116Cost To Defend 6,081 21,761 57,398 51,718 67,020 82,463 131,448 117,08312

MalpracticeinsuranceTypes Of MalpracticeInsurance1. Claims Made – insurance coverage periodcovers period of time the claim is filed Requires purchase of a tail to cover anyclaims filed after the coverage period Tail coverage 150-300% of annualpremium2. Occurrence – insurance coverage periodcovers period of time when the actual eventoccurred Does not require purchase of a tail13

Example #1 Dr. Surgeon does a cholecystectomy in 2013 Malpractice claim filed in 2014 In 2013, Dr. Surgeon was insured by company A In 2014, Dr. Surgeon was insured by company B Claims made policy: company B covers the claim Occurrence policy: company A covers the claimExample #2 Dr. Surgeon does a cholecystectomy in 2013 Dr. Surgeon leaves practice January 2014 Malpractice claim filed in March 2014 In 2013, Dr. Surgeon was insured by company A When leaving practice, Dr. Surgeon did notpurchase a tail Occurrence policy: company A covers the claim Claims made policy: Dr. Surgeon is responsible14

Average U.S. Malpractice PremiumsFor Internal Medicine Specialties*“No Surgery”Allergy 8,198Cardiology 17,268Critical Care 23,218Gastroenterology 17,702Heme/Onc 15,514Internal Medicine 16,961Palliative 8,198Pulmonary 19,195Geriatrics 14,560Nephrology 14,402Infectious Disease 19,736Endocrinology 13,558Rheumatology 14,479“Major Surgery” 58,173 36,494*Report on the CY2015 Update of theMP RVUs for theMedicare PFSWho Pays The HighestPremiums*? NeurosurgeryObstetricsThoracic surgeryGeneral surgeryVascular surgeryOrthopedics 106,901 66,024 59,569 59,808 58,970 52,344*Report on the CY2015 Update of theMP RVUs for theMedicare PFS15

Geographic Variation InPremium Prices*SpecialtyInternistsGeneral SurgeonsOB-GYNLowest Rates 3,375Minnesota 10,868Wisconsin 16,240Central CaliforniaHighest Rates 47,707Miami, FL 190,829Miami, FL 214,999Long Island, NY*Standard rates July 1, 2015 for 1 millionindividual claim and 3 million total annual allclaimsMalpractice inOhio3216

Paid Claims Per 1,000 PhysiciansJAMA. 2014;312(20):2146-215533Malpractice Closed Claims Per Year: Ohio17

Malpractice In Ohio 2013:3,019 claims No payment:76% 67% suit abandoned or closed withoutprejudice 4% dismissed by summary judgment 3% defense verdict 2% settled Payment:24% 21% settled 2% alternative dispute resolution 0.66% plaintiff verdictMalpractice In Ohio 2013 3,019 claims Total paid to claimants 266,688,492 Average 376,679 per claim Average for internal medicine claim 208,770 59 claims were 1,000,000 Highest average indemnity payments: Anesthesia 1,479,258 OB/GYN 1,306,760 Average cost to defend a claim with no payment: 35,49318

Geographic Variability In OhioRegionTotalClaimsClaimsWithIndemnityAverage IndemnityPer Paid ClaimNortheast Ohio1550364 (23%) 411,153Southwest Ohio 589138 (23%) 158,217Central Ohio37688(23%) 430,981Northwest Ohio34785(24%) 251,957Southeast Ohio14330(21%) 382,085Cost Of MalpracticeInsurance In Ohio:Company “A”Company “B”Company “C”Central Ohio 16,093 17,275 12,842Northeastern Ohio 24,354 24,223 22,173 2012 data Insurance policies between different companies may notbe equivalent Ohio premiums have fallen 22% since tort reform19

Malpractice Courts In Ohio1. Court of Claims Decided by judge No jury Cases filed against State of Ohio2. Court of Common Pleas Decided by juryStatute Of Limitations One year that can start from:1. Date of malpractice event2. Date of discovery of injury3. Date of termination of physician/patientrelationship Wrongful death claims: 2 years For children: 1 year after the child turns 18 The “180 day” letter Allows 6-month extension beyond the statuteof limitations for the patient/attorney tocomplete investigation into a possible claim20

Statute Of Repose “Limitation to the statute oflimitations” 4 years Exception: foreign object left inthe body after procedureImmunity Hospitals owned by governmentPhysicians employed by governmentState is the defendantMust be tried in the Court of Claims 250,000 cap on pain and sufferingdamages21

Ohio Damage Caps: Non-economic damages: 250,000 or 3 times the economic damages tomaximum of 350,000/plaintiff and maximumof 500,000/occurrence Maximum increases to 500,000/plaintiff and 1,000,000/occurrence if there is: Permanent & substantial physical deformity Loss of a limb Loss of body organ system Injury preventing self-care Cap does not apply to wrongful death casesSenate Bill 281 (tort reform) – April 11, 2003Ohio Damage Caps(continued): Compensatory (economic) damages: No limit Punitive damages: Limited to 10% of net worth to a maximum of 350,000 Limited to 2 times the compensatory damages22

The Anatomy Of AMalpractice SuitFrederick SewardsPolling Law, Columbus, OH23

Who Can Be An ExpertWitness In Ohio? Can testify to:1. Standard of care2. Probable cause of event Must practice in same specialty orspecialty substantially similar todefendant Must do 50% of time in clinicalmedicineAre Malpractice Cases Frivolous?N Engl J Med 2006;354:2024-33.24

Does Medical Error DisclosureIncrease Lawsuits? University of Michigan “Disclosure-with-offer” program implemented2003 New claims/month fell 7.03 to 4.52 per 100,000encounters New lawsuits/month fell 2.13 to 0.75 per 100,000encountersAnn Intern Med 2010; 153:213-221Can You Say “I’m Sorry”?“In any civil action brought by an alleged victim of anunanticipated outcome of medical care or in any arbitrationproceeding related to such a civil action, any and allstatements, affirmations, gestures, or conduct expressingapology, sympathy, commiseration, condolence,compassion, or a general sense of benevolence that aremade by a health care provider or an employee of a healthcare provider to the alleged victim, a relative of the allegedvictim, or a representative of the alleged victim, and thatrelate to the discomfort, pain, suffering, injury, or death ofthe alleged victim as the result of the unanticipated outcomeof medical care are inadmissible as evidence of anadmission of liability or as evidence of an admission againstinterest.”Ohio Revised Code Section 2317.43 – September 13, 200425

Some Cases51The danger of being the onlyone without immunity Unrestrained driver found hanging from a treeafter motor vehicle accident No health insurance Multiple traumatic injuries: ruptured spleen,pneumothoraces, thoracic vertebral fracturewith paraplegia, broken arms After emergent spine surgery, vision loss Mother sues for 35 million All physicians have immunity exceptneurosurgery resident26

The danger of being the onlydoctor with insurance Patient underwent neck surgery for cancerRe-admitted with neck abscessWorsened swelling after needle aspirationSent to radiology for CT-guided drainageHas respiratory arrest when placed on CT tableResponding anesthesiologist is unable tointubate Emergent tracheostomy by different surgeon Original surgeon is uninsured Radiologist named in the lawsuit When residents & fellowsrun the show Post-partum woman in motor vehicle accidentIn ED, resident does FAST scan: negativeUndergoes surgery for arm fracture3 days later, sudden cardiopulmonary arrestrequiring CPR & total of 24 L fluids (6 unitsPRBCs) Autopsy by coroner (unsupervised fellow):pulmonary emboli and 2.4 L liver hematoma. Coroner’s cause of death: blunt force traumato the liver 27

Communication Patient admitted to the hospital withpancreatitis Abdominal CT shows incidental finding of 3pulmonary nodules Radiologist recommends follow up CT andnote FAXed to primary care physician listedin chart PCP had recently left practice and physicianassistant assumed patient panel 2 years later, patient found to have stage IVlung cancer and diesWhen your employerchanges 18 year old admitted with diffuse myalgias.Previously healthy. Family reports patient had been screened forsickle cell anemia in kindergarten and wasnegative Admitting physician suspects sickle cell anemiaregardless and treats accordingly Patient sustains cardiopulmonary arrest and laterdies. Testing later returns showing sickle cellanemia Physician’s group is purchased by a new companywhich settles claim 1 week prior to trial28

A compelling expertwitness Patient with ESRD seen in the ED for shinglesinvolving the left chest & abdomen Next day returns because of weakness &hypotension. CXR shows new cardiomegaly. Cardiology and thoracic surgery called forsuspected pericardial tamponade. Cardiac echo tech had left for the day so a CT wasordered. Patient arrests in CT scanner as echotech and cardiologist arrive and dopericardiocentesis Plaintiff’s expert states that all ED physiciansshould be able to do cardiac ultrasoundThe danger of VIPs VVIP admitted with PE 1 week after surgery Seen in ICU by on-call resident; ICU attendingmanages with heparin by phone from home PTT measurements not done at times ordered Next morning, heparin is held to place IVCfilter VVIP develops shock and dies 2 weeks later Death results in headlines across the U.S. Lawsuit results in headlines across the U.S.29

A few final keypoints 59Ted MunsellCarpenter, Lipps, & Leland, LLP30

Central Ohio 376 88 (23%) 430,981 Northwest Ohio 347 85 (24%) 251,957 Southeast Ohio 143 30 (21%) 382,085 Cost Of Malpractice Insurance In Ohio: Central Ohio Northeastern Ohio Company “A” 16,093 24,354 Company “B” 17,275 24,223 Company “C” 12,842 22,173 2012 data Insura