HITE, FANNING & HITE, FANNING & HONEYMAN, L.L.P.HONEYMAN, L.L.P.

Don D. Gribble II

Medical Malpractice 30 Year Claim/Suit History

2011 267

2001 341

1991 230

1981 98

10 year average is 376 per year (highest year 2006 = 457)

*Economy proof

Medical Malpractice 5 Year Trial History

FY11 FY10 FY09 FY08 FY07

Total 19 32 27 34 36

DV 16 21 20 25 31

PV 2 7 5 5 5

Split V 1 1 1 1 0

Mistrial 0 3 1 4 0

*5 year average = 30 trials per year

*Approximate 75% DV average

Medical Malpractice Trial Venues FY 2011

Jackson County, MO 3

U.S. District Court, KS 3

Wyandotte County 3

Crawford County 2

Sedgwick County 2

Douglas County 1

Ellis County 1

Geary County 1

Pratt County 1

Reno County 1

Riley County 1

Medical Malpractice Claim/Suit Resolution Methods

• 1% disposed of by trial

• _% dismissed

• Most settle

• Reporting to the National Practitioner Data Bank

Types of Medical Malpractice Claims/Suits

(My Current Cases)• Premature delivery causing developmental delay

• Spinal cord injury during scoliosis sx causing paralysis

• Sx positioning causing extremity injury

• Failure to adequately treat encopresis causing death in 8 yr old

• Chronic pain pt overdose causing death

• Circumflex artery injury during heart valve sx causing death

• Infection progressing to meningitis causing brain injury (2)

• Infection progressing to sepsis causing death

• Undiagnosed heart problem leading to MI/death (2)

• Pitocin causing hyperstimulation and brain injury (2)

Avoiding a medical malpractice claim/suit – top 5 things:

1. A good bedside manner (1 Pt. 4:8)

2. Transparency (old vs. new culture)

3. Showing empathy/sympathy (flowers, cards)

4. Good charting (time issue)

5. Practicing within the standard of care (subjective and not definitive)

Avoiding a medical malpractice lawsuit PV – top 5 things:

1. Making a good witness (single most important)

2. Working with your attorney (relatively rare)

3. Knowing your chart (video depos)

4. Doing nothing to the chart

5. Getting good expert witnesses

The first thing to do after learning of a bad event would be to:

a. Interview the personnel involved

b. Have the personnel involved write out statements about what occurred

c. Contact counsel/risk manager

d. All of the above

Medical Malpractice Claims/Suits

Discuss:

1. Why

2. When

3. Where

4. Who

5. How

Why?: There is an alleged breach of the standard of care (aka a bad result)

Standard of care is defined as:

a. The best care I can deliverb. The best care another similarly situated

provider would deliverc. Neither

How is the standard of care defined?a. Authoritative journals & texts

b.Guidelines from governing bodies (AAFP, ACOG, etc.)

c. Written policies and procedures

d. What an expert witness says it is

e. All of the above

Vicarious Liability• K.S.A. 65-3403(h):

(h)   A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after July 1, 1986.

For whom are you liable?

a) Nurse/PA

b) Resident Physician

c) CRNA

d) Anesthesiologist

e) Doctor to whom you refer the patient

f) All of the above

When?: Suits for adults

2 years from the date of the alleged

malpractice:

True or False?

*4 yr SOR

When?: Suits for children

18 years:

True or False?

* 8 yrs SOR

Where?: Suits are filed

Depends on where happened and where

defendants are.

*Rural vs. Urban

Who?: Is joined

• Concept of comparative fault

• More limits

How?: Does case proceed

1st written discovery

2nd deposition discovery

3rd expert witness discovery

4th settlement conference

5th trial (length)

*Roughly 1 ½ yrs from filing to trial

Case Evaluation

• Elements to consider:– Liability

– Damages

The amount of medical and lost wage damages a plaintiff could recover is:

Capped at $250,000.

True or False

The amount of pain and suffering damages a plaintiff could recover is

Capped at $250,000-----------------Presently

*Miller v. Johnson case

*Statute since late 80’s

Settlement conferences:

According to K.S.A. 60-3413, the Court shall require a settlement conference in cases involving medical malpractice at least 30 days before trial.

Trials

Range from 1- 6 weeks

Questions?