MALPRACTICE: PART 2
| HOW TO SURVIVE A MALPRACTICE CLAIM —Gregory L. Henry, MD, Clinical Professor, Department
of Emergency Medicine, University of Michigan Medical School, Ann Arbor, and Past President of the American
College of Emergency Physicians
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| Background issues: conflict exists between Apollonian physicians and mostly Dionysian jurors; healthcare
system moved from era of great doctor or scientist to system where process more important than outcome; doctors
can become distracted from their work, depressed, and even suicidal after presented with lawsuit papers;
jurors readily admit they ignore facts if they feel sympathy for plaintiff; in order to practice medicine at high
level of care, physicians must protect themselves first and avoid becoming preoccupied by malpractice cases
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| Reactions to malpractice lawsuits: associating with aggressor when reading deposition by plaintiff’s expert
witness (describing alleged negligence) may cause physician to question clinical judgment (dangerous in
emergency medicine); emergency department (ED) physicians need to make quick decisions daily; lawsuits
should not change reasonable practice behavior (but, in reality, they do change attitudes and behavior); 97%
of people report severe emotional or physical reactions when sued; reactions can include depression, marital
discord, anger management problems, and drug and alcohol abuse; shame most common reaction and can
lead to avoidance behavior (eg, putting papers in drawer and ignoring them); physicians have similar reactions
to being sued because of their high-achieving personalities and their common educational backgrounds;
physicians insulted by lawsuits and often identify themselves by their profession; emotional and intellectual
reactions similar to those involved in stages that people go through during death and dying; communication
and support—find someone to talk to about emotional and physical reactions to being sued; never blame others
for what happened; only talk about facts of case; professional support—practice group should set up system to
counsel and support everyone going through this process
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| Specific positive actions to take: psychological—get psychological support; understand grieving process that
takes place; anticipate that cases similar to one involved in lawsuit may trigger emotional reaction; legal—
get excellent attorney (lawyers specialize just like physicians); look for someone with considerable amount
of experience with emergency medicine defense; educate attorney with current literature and information
about plaintiff’s expert (when available); investigate credentials and trial experience of defense’s expert
witness; show up at every deposition possible (nothing straightens out testimony like presence of physician
being sued; insurance company usually pays for expenses); make sure attorney understands American College
of Emergency Physicians (ACEP) expert witness statement and how to use it; assist attorney in picking
expert witness; select expert witness with considerable trial experience and who knows how to present testimony
to jury; use knowledgeable, truthful expert witness (ie, knows what wins and what loses in court and
will advise appropriately); understand purpose of malpractice insurance (protects assets, not honor)
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 | Key elements in defense expert: appearance before jury (eg, dress, manner); presentation ability; curriculum
vitae; reputation; trial experience; commitment; credibility
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| Settling: ending pain quickly and moving on sometimes best option; defendant physician least able person to
make settlement decision (no objectivity); ideally, another member of group should make settlement decision
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| Preparation: always spend time to prepare; practice answering tough questions (critical); know everything in
chart
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| Biggest mistakes physicians make in malpractice legal process
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| Ignoring claim: notify group and carrier immediately (failure to respond may invalidate insurance)
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| Talking to colleagues about facts of case: only discuss case with attorney or in official quality assurance setting;
do not discuss case with attorney representing hospital, unless defense unified; never “try the case”
with friends
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| Contacting patient: only contact patient through lawyers once legal action begun; never contact patient directly
or threaten witness
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| Failing to preserve integrity of chart: always seal records and work from copies; never alter anything (federal
crime)
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| Failing to assist counsel: attorney needs total commitment and candor; failure to cooperate may invalidate insurance
policy
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| Displaying defensive attitude: arrogance and hostility counterproductive; jurors swayed by negative feelings
about defendant; jurors not partial to “God” complex; intelligent defense more important than sense of injury
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| Mistaking trial for search for scientific truth: emotions generally prevail over science; winning more important
than truth for many lawyers
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| Underestimating impact of legal process on physician’s life: legal process has impact, especially near time
of trial
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| Not being candid about charting: concede fact that chart could be more detailed, but indicate charting practice
as standard and customary (best possible, given time constraints)
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| Failing to ask for separate counsel when clear conflict of interest exists: separate counsel appropriate when
hospital’s aims differ; conflict of interest may exist if another emergency physician involved (eg, if event occurred
during change of shift)
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| Casually blaming other providers: physician only responsible for himself or herself; never comment on care
given when not there or not involved
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| Expecting quick resolution to case: enterprise of law driven by process, not outcome; time frame often spans
years, not days or weeks
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| EMERGENCY DEPARTMENT HEALTHCARE LAW —Michael Frank, MD, JD, General Counsel, Compliance
Officer, Director of Risk Management, Emergency Medicine Physicians, Canton, OH
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| Corporate compliance program: formal program or process to reaffirm an organization’s commitment to
uphold and assure compliance with internal and external laws that govern it; federal law enforcement authorities
emphasize importance of compliance program as protection against false claims or fraud enforcement
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| Case examples: case 1—medical records technician sentenced to 200 hr of community service and ordered to
pay $6000 fine for false statements involving federal health care programs (entered same diagnosis code for
all patients seen in ED regardless of medical condition); case 2—chiropractor sentenced to 1-yr incarceration
and ordered to pay $79,000 in restitution for health care fraud (billed all services as manipulative treatments,
only service for which Medicare authorizes reimbursement); case 3—physician and her employee sentenced
for their roles in submitting false claims for psychiatric services (physician absent from office or services provided
by unlicensed employee)
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| Function of compliance programs: Health Insurance Portability and Accountability Act of 1996 (HIPAA)
made healthcare fraud federal offense and authorized federal law enforcement agencies to find and prosecute
violations
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| Office of Inspector General (OIG) enforcement activities: fiscal year 2003—performed 2643 audits; opened
1695 new criminal cases resulting in 2700 active investigations, 576 criminal convictions, 243 successful
civil actions, and 3275 individuals and entities excluded from Medicare, Medicaid, and other federally
sponsored health care programs; fiscal year 2004—533 criminal convictions; 268 successful civil actions;
3293 individuals and entities excluded from Medicare, Medicaid, and other federally sponsored health care
program; estimated savings—OIG enforcement activities and implementation of recommendations (eg,
billing practices) saved $21.6 billion; in fiscal year 2004, OIG enforcement activities resulted in savings of
$1.9 billion in receivables from investigations and $762 million in audit disallowances
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| Fraud and abuse: most common examples—billing for services not rendered; fraudulent diagnosis or misrepresenting
diagnosis in order to justify services provided; waiving patient deductibles and copayments; other
examples—deliberately applying for duplicate payment; billing for non-covered services; misrepresenting
services provided, amounts charged, identity of person who received service, or date of service; providing
services by unlicensed or unsanctioned personnel; documentation issues—understand that coding performed
in medical records driven by documentation performed by physicians and providers
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| Qui tam lawsuits: private citizen can file lawsuit, in name of United States government, against fraud or false
claims by companies who conduct business with or reimbursed by United States government; how it works—
whistleblower files suit in federal court under seal; government investigates and decides whether to take over
lawsuit (Federal Bureau of Investigation [FBI] agents investigate and can subpoena records); whistleblower
entitled to 15% to 30% of recovery plus attorney fees
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| False claims act (FCA): legislation affects any person in chain of billing and collecting who knowingly presents
or causes to be presented a false claim for payment; federal government’s most versatile and powerful
tool, because of low burden of proof; healthcare professionals expected to know rules if participating in
federal healthcare programs
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| What makes false claim false? incorrect data in document (eg, billing codes, identification of services performed,
date of service, identity of physician providing service, eligibility of beneficiary); services not medically
necessary; services not provided within accepted clinical standards; services not rendered; failure to
submit claim “in accordance with all applicable law”; note—every claim submitted must include certification;
employee sanction screening—responsibility of employer to screen employees; list of excluded persons
and entities available over Internet (eg, OIG website); filing claim for services provided by excluded person
or entity considered false claim
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| Harsh penalties for violations: civil and criminal statutes; government may prosecute under criminal statutes,
even if civil action settled; damages (civil)—triple damages plus penalties (ranging from $5500 to $11,000)
for each false claim submitted; exclusion from government programs for at least 5 yr
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| Sexual harassment: quid pro quo—submission to, or rejection of, unwelcome sexual advances affects decisions
about employment or advancement; hostile work environment—unreasonable interference with work
environment, including rude or hostile remarks or offensive behavior of sexual nature
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| Sexual misconduct: many actions that constitute sexual misconduct also constitute sexual harassment; misconduct
includes consensual adulterous sexual activity
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| Workplace romance: may constitute or otherwise lead to sexual harassment or misconduct
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| Consequences: physicians fired or removed from senior positions as result of sexual harassment or misconduct;
harassment claims also filed by patients; re-entry contracts, modeled after those for physicians with
substance abuse problems, restrict physician activities and may require psychiatric evaluation and training
to prevent recurrent behavior
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| Anti-kickback: law prohibits individuals from offering or accepting anything of value to influence referral of
patients; professional courtesy violates this law; other examples include gifts and fees or discounted office
space; recruitment incentives may violate law; prosecution may result in fines and prison sentence
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Educational Objectives
| The goal of this activity is to provide an understanding of malpractice and emergency department healthcare
law. After hearing and assimilating this program, the clinician will be better able to:
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| 1. Describe positive actions to take to protect themselves if they are involved in a malpractice lawsuit.
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| 2. List the biggest mistakes physicians make when involved in the malpractice legal process.
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| 3. Discuss why a compliance program is needed.
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| 4. Describe the false claims act.
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| 5. Distinguish sexual harassment from sexual misconduct.
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Suggested Reading
Andrew LB: Expert witness testimony: the ethics of being a medical expert witness. Emerg Med Clin North Am.
24:715, 2006; Derse AR: Ethics and the law in emergency medicine. Emerg Med Clin North Am. 24:547, 2006;
Goldberg MK: Are you committing health care fraud under the False Claims Act? The answer may not be as
simple as you think. J Med Pract Manage. 17:206, 2002; Gosfield AG: The hidden costs of free lunches: fraud
and abuse in physician-pharmaceutical arrangements. J Med Pract Manage. 20:253, 2005; Mustokoff MM et
al: The False Claims Act: the courts move toward a rule of reason. J Med Pract Manage. 20:317, 2005; Siegel S:
An audit a day keeps the agency at bay: OIG's evolving view of hospital compliance programs (part 2). Health
Care Law Mon. Sep:3, 2004; Siegel S: An audit a day keeps the agency at bay: OIG's evolving view of hospital
compliance programs. Health Care Law Mon. Aug:3, 2004; Stokes SL et al: Ethical and practical aspects of
disclosing adverse events in the emergency department. Emerg Med Clin North Am. 24:703, 2006; Tabak N et
al: Sexual harassment--abuse or flirtation. Med Law. 24:479, 2005.
Faculty Disclosure
In adherence with ACCME guidelines, the Audio-Digest Foundation requests all lecturers to disclose any significant
financial relationship with the manufacturer or provider of any commercial product or service discussed.
For this issue the faculty reported nothing to disclose.
Dr. Henry was recorded May 24-26, 2006, in San Francisco, at High Risk Emergency Medicine, sponsored by the
University of California, San Francisco, School of Medicine. Dr. Frank was recorded May 23-24, 2006, in Las
Vegas, at High Risk Emergency Medicine, sponsored by the Center for Emergency Medical Education, The
Emergency Physicians’ Medical Group, Emergency Medicine Physicians, and the Ohio Chapter of the American
College of Emergency Physicians. The Audio-Digest Foundation thanks the speakers and the sponsors for
their cooperation in the production of this program.
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