Newsletter XX September 2001
Medical Malpractice and Negligence Per Se
Clark County
Medical Society CME Calendar
Clark County
Medical Society New Members for July 2001
Executive
Director Notes – CCMS builds CME curriculum to benefit members
Clark County
Medical Society Board Of Trustees Meeting
By Artemus Ham IV, Esq.
The term medical malpractice is one
with which all physicians have become intimately familiar. Today, doctors are at risk for civil
liability each time they treat a patient.
Because we live in a litigation-friendly society, patients are encouraged
to be extremely skeptical when evaluating their physician’s care. This makes it necessary for physicians of all
types to be educated in the law as it relates to the medical profession. The law in
Traditionally, medical malpractice is associated with extensive trials dragging names of doctors through the mud. A typical medical malpractice lawsuit can mean years of mental anguish and outrageous monetary costs associated with lengthy litigation. In many cases, when a patient decides to bring a lawsuit against a doctor, finality is nothing more than a faint light at the end of a tunnel. The only escape from litigation is settlement, and settling sometimes involves admission of wrong-doing. This leaves doctors with two choices; settle or endure the roller coaster ride ending in a medical malpractice lawsuit trial.
In an age where everyone can agree that the practice of medicine is not an exact science, legislators, judges, and lobbyist groups are challenged to articulate a law that defines medical malpractice. This term is legally defined in Nevada as “the failure of a physician, hospital or employee of a hospital, in rendering services, to use reasonable care, skill or knowledge ordinarily used under similar circumstances” (NRS 41A.009). In other words, under the law doctors are held to the same standard of care as other doctors in the same or similar circumstances. This requires judges, and ultimately juries, to make difficult decisions with regard to a doctor’s choices in treatment.
A typical medical malpractice lawsuit entails doctors being sued by patients who complain that their care and treatment was “negligent.” Negligence is a legal word which requires that a patient must first prove that a doctor owed them a legal duty. This duty is created when a patient approaches a physician for treatment and the physician consents to treat. The patient must show that the doctor breached that duty in a way that is in violation of the standard of care. The patient must then show that the breach of that duty proximately caused the patient’s injuries. This requires that the services rendered by the physician must be shown to have directly caused an injury to the patient. Finally, the patient would then have to prove monetary damages or be able to show injuries that resulted from the doctor’s treatment. Historically, trials are necessary in order for judges or juries to determine whether a physician was negligent and therefore liable for malpractice.
Trials usually encompass a jury made up of citizens who have no vested interest in the outcome of the proceedings. In rare occasions, trials can also be held in front of judges in what are known as bench trials. In either scenario, short of settlement, trials are necessary to bring finality to a malpractice lawsuit.
This very subjective process has left both physicians and legal scholars uneasy, as there is no simple, clear cut answer to the question, “Has a doctor committed malpractice?” Recently however, discussion regarding the application of Negligence Per Se to the Nevada Administrative Code has surfaced. This adds a new caveat to the traditional medical malpractice lawsuit.
Negligence Per Se as it applies to the law generally is much easier for a patient to prove in court than negligence. Negligence Per Se is the violation of the plain meaning of a statute which is designed to protect a class of persons to which the injured party belongs. As this is purely a legal question, a judge in a pre-trial motion, rather than a jury, has the option to determine whether Negligence Per Se has occurred. If it has, a trial would only be necessary to determine causation and the amount of damages to be awarded for the injury. The judge has the inherent power to determine if a person has committed Negligence Per Se.
In medical malpractice litigation, the Nevada Administrative Code, specifically NAC Chapter 630, governs the legal standards a physician must adhere to in order to avoid liability. Using the prerequisites set out in the NAC, some argue that a judge should be able to determine whether a physician has violated the Nevada Administrative Code and thereby trigger the application of Negligence Per Se to a medical malpractice claim. If the answer is “yes,” negligence of a doctor would therefore be established.
For example, NAC 630.230(1)(m) requires that a person who is licensed as a physician or physician’s assistant shall not engage in the practice of writing prescriptions for controlled substances to treat acute pain or chronic pain in a manner that deviates from the guidelines set forth in the Federation of State Medical Boards’ Model Guidelines for the Use of Controlled Substances for the Treatment of Pain. If an injured patient were to initiate a lawsuit against a physician, and a judge were to determine by viewing the evidence that a physician had undeniably treated the patient’s acute or chronic pain in a manner that deviated from the guidelines in the FSMB’s Model Guidelines, thereby violating the plain meaning of NAC 630.230(1)(m), the judge could find Negligence Per Se against the physician. This would establish the negligence of the doctor as a matter of law. At this point, a trial would only be necessary to determine causation and the amount of monetary damages to be awarded the patient. In short, a finding of Negligence Per Se against a medical doctor conclusively establishes liability without the necessity of a trial.
The concept of Negligence Per Se as
it relates to medical malpractice is still emerging and has not yet established
firm roots. The utilization of this
legal term in actual medical malpractice cases in
At this point in time, many judges may feel uncomfortable about declaring liability against a physician without the luxury of a trial on liability. In determining whether Negligence Per Se exists against a doctor, a judge would normally be relying solely on a written presentation of the evidence. There would not be a trial on liability, and therefore, no presentation of the evidence through live testimony. Judges would have the task of simply applying the statute or code to the evidence as it is presented to them in a written format. Therefore, if a doctor has violated the plain meaning of a statute or regulation, a judge may be well within their authority to find that a doctor is Negligent Per Se.
The rationale behind supporting implementation of Negligence Per Se against doctors is that it will serve to place them on notice of which violations of administrative codes can ultimately be construed as malpractice. Medical providers can avoid the onerous application of Negligence Per Se by strictly following statutes and administrative codes relating to medical care. Many feel that judges, who in theory are educated and in tune with medical laws, are in the best position to determine when a violation of a statute or regulation has occurred. Others feel that juries, who are selectively made up of peers, are the best judges in determining malpractice.
Legal scholars and physicians are
at odds about this concept, as it has not yet been extensively tested in
The clashing of law and medicine is something that will inevitably continue to trouble lawmakers well into the future. Many medical providers feel they are forced to be unnecessarily cautious and even conservative in their treatment of patients due to the civil liability that can be attached to any slight deviation from the “normal” treatment a patient should arguably receive. As the law changes, so does the monetary exposure for physicians for treatment of their patients which subjectively can be determined to be below the recognized standard of care. While the law is designed to protect its citizens, it is not an exact science anymore than is medicine. The thought of encountering a medical malpractice claim invokes fear that will not be alleviated by any new law, but Negligence Per Se offers a new approach to facilitate dealing with legal accusations.
Much the same as medicine, the law requires constant refinement and clarification. The manner in which medical malpractice cases are litigated will undoubtedly change as we evolve as a society. Negligence Per Se and its application to the Nevada Administrative Code is an example of one type of possible change. The exact repercussions of Negligence Per Se in medical malpractice litigation are as of now unknown. Therefore, a physician should take the precautionary step of becoming familiar with and following the Nevada Administrative Code to avoid possible culpability from violating its provisions. Since the future of Negligence Per Se in medical litigation is uncertain, awareness is the first step in helping doctors to avoid the nightmare that is medical malpractice.
Artemus Ham IV, Esq. is a Former Law Clerk to the
Honorable Michael A. Cherry, District Court Judge, and is currently an
Associate Attorney for Harrison, Kemp & Jones
September 15 – “OSHA For
Physicians,”
October 13 – “CPT Coding Strategies to
Improve Reimbursement,”
October 27 – “OSHA For Physicians,”
November 17 – “Pain Management and
December 15 – “HIPAA Privacy Standards for
Physicians,”
Courses are FREE to members and $75 for non-members.
Registration is on a first come, first serve basis. Couses
are held at CCMS,
Daniel Batlan, MD, Pain
Management, 7500 W. Lake Mead Blvd. #9-640,
Nader Beheshti,
MD, Diagnostic Radiology,
Hector
Robert Kleinman, MD, Diagnostic
Radiology,
Garry R. Lee, MD, Family Practice, 2610 W. Horizon Ridge Pkwy., Ste. 100, Henderson, NV 89052
Kevin N. Miller, MD, Ophthalmology,
Arthur Montes, MD, Diagnostic Radiology,
Edward Nathan, MD, General Surgery, 2911 N. Tenaya Way, Ste. 104, Las Vegas, NV 89128
Michael Resnick, MD, Ob-Gyn,
John J. Rush, MD, Emergency Medicine,
Luis Sanchez, MD, Internal Medicine, 2225 Civic Center Dr.
#240-A, N. Las Vegas,
·
Desert Radiologists announces the purchase of
diagnostic imaging systems that assess the presence and extent of several
diseases, including most types of cancer. According to Paul Bandt,
M.D., Desert Radiologists plans to introduce the Positron Emission Tomography (PET) scanner into
· Through July 2001, paid membership in the Clark County Medical Society has increased to 863 from 767 one year ago.
·
Kenneth Westfield, M.D., of the
Shearing-Westfield Eye Institute is organizing volunteers to host a fundraising
effort for Friends of the Children of Lascahobas (
· Dr. and Mrs. George Alexander would like to thank the Clark County Medical Society and doctors for their assistance in the Breast Cancer Fundraiser. The successful event raised more than $14,000 for the Susan G. Komen Breast Cancer Foundation.
Weldon (Don) Havins,
M.D., J.D., CCMS Executive Director and Special Counsel
The Clark County Medical Society’s Board of Trustees has adopted the World Medical Leaders’ online Category I CME credit program, available only to provisional and active members of CCMS. Washoe County Medical Society has adopted the same program. As a member of the Clark County Medical Society, you are entitled to receive a user name and password to access the programs. World Medical Leaders web site is located at www.wml.com. These audiovisual programs are top quality in presentation and content. More than 100 Category I CME credits are available currently and the program has more coming online every month. At the end of each program, there is a test that you must pass to receive Category I CME credit. You then print out your CME certificate on your printer. The current value of this program is $2,500, based on a $25 per credit charge for CMEs commonly priced elsewhere. To utilize this wonderful free CCMS membership benefit, you must first download RealPlayer 8 Basic, which is also free, from the RealPlayer.com web site. The CME programs at www.wml.com are oriented toward primary care and internal medicine currently. However, specialists and subspecialists seeing patients who suffer from common medical problems should receive credit under the 20 credits required in the licensees’ “scope of practice” category for NBME purposes. Category I CME credits obtained at CCMS courses given on medical-legal or regulatory issues will likely be applied toward the credits other than within your clinical specialty or scope of practice.
The Clark County Medical Society
conducted a 2.5 credit Category I CME course on “HIPAA Privacy Regulations for
Physicians” August 11, which will be repeated December 15. Pretending that these regulations will
somehow disappear or be amended such that they will not apply to physicians is
wishful thinking, but nonsense. The
Privacy Regulations became effective April 14 of this year. Physicians must be in full compliance with
them before
A 3-credit Category I CME entitled
“OSHA for Physicians” will be conducted on September 15 and again on October
27. Learn how to transform your office
into one in compliance with OSHA’s rules and learn
what to do when the OSHA investigator “pays a visit.” In other venues in
On October 13, an important 2-credit Category I CME course on “CPT Coding Strategies to Improve Reimbursement” will address medical coding errors most likely to stimulate a “fraud and abuse” audit. The instructor will advise on how to code to minimize your chances of being flagged for such an audit and how to respond when you receive notice that you have been selected for an audit. While up-coding can result in personal catastrophe, down-coding is not the answer. Reimbursements have been dropping the last few years and the bottom is not in sight. “Learn to learn” how to code correctly. This course will be conducted by a Certified Professional Coding Instructor with extensive experience in teaching physicians the nuances of proper coding. Proper coding gives new meaning to the homily “an ounce of prevention can avoid a ton of trouble.”
“Pain Management and Nevada Law,” a 2-credit Category I CME course, will be conducted on November 17. This course will cover the modern pharmaceutical treatment of acute and chronic pain as well as severe intractable pain. The minefield of current Nevada Law regulating the treatment of pain with controlled substances will be reviewed.
A 2-credit Category I CME course in Medical Ethics, intended to satisfy the biennial relicensure requirement, is currently under development. This course will likely be offered on November 3 or November 10 and probably sometime thereafter.
All these courses will be offered
at no charge to dues paid CCMS members as a membership benefit at the Clark
county Medical Society,
CCMS plans on developing and offering CMEs on the following subject areas with the next twelve months:
“The Formation, Operation, Dissolution and Marketing of Provider Entities including IPAs, PPOs, and HMOs.” Instructor: Kelly Testolin, J.D. This will be a fascinating, practical 2 to 3 hour CME from an experienced authority in this area.
“Labor Law in
“Health Care Fraud and Abuse, Developing a Compliance Program for Medical Practices.” Instructors: Kelly Testolin, J.D., Weldon (Don) Havins, M.D., J.D., and Tina Landskroener, C.P.C.
“
“Medical Malpractice in
“The Medical Expert Witness” To include a District Court Judge and a medical malpractice insurance expert
“
“Realistic Options for Saving Money on Your Professional Liability Insurance” To include experts on medical malpractice insurance products
“Bio-terrorism and the Nevada Physician” To include an expert from the Clark County Health District
Seating is limited at CCMS. Early registration for these programs is advised. Dates of CME courses to be developed will be announced in CCMS’s newsletter and/or via fax. Join us for these Category I CME opportunities in subjects not normally available locally.
Abstracted minutes:
I. The Meeting was
called to order at
BOT Attendees:
Stanley Ames, MD; Andrew Cohen, MD; John Ellerton, MD; Warren Evins, MD; Stacey Garry, MD; Kevin Hyer, MD; Edwin Kingsley, MD; Donald Kwalick, MD; Raul Meoz, MD; Marrietta Nelson, MD; and Annette Teijeiro, MD.
Staff Attendees:
II. Action Items
A. Minutes (May)
The minutes from the
B. Financial Report (May)
Dr. Havins reported the May revenues received and the expenses spent totaled a difference of $79,540.53 more expenditures than revenue. The year to date difference is $48,648.83 more expenditures than revenue. The budget year to date revenue is $57,357.95 less than was anticipated. The budget year to date expenses are $12,310.92 less than anticipated. Additional discussion followed.
III. Committee
Reports
A. Administrative Report
1. Applications to join CCMS only
Dr. Havins stated the Executive Council met and discussed the application received by an applicant to join CCMS only and not NSMA. The Board decided to continue requiring simultaneous membership.
2. CCMS Members CME Survey-“Needs Assessment” Dr. Havins reported the returns received from members regarding potential CCMS’ CME classes.
3. The board discussed the status of our contract with LVD.com.
B. Building Committee
1. Landscaping bids reviewed by Dr. Teijeiro.
C. Community Relations Committee
1. Media training bids
Dr. Kingsley discussed the 3 bids received for media training for the Executive Council. Espin chosen.
2. Surveys from members regarding benefits
Dr. Kingsley asked the Board to look at the survey results received from members. He said the Community Relations Committee considered anything over 3 out of 5 as important:
D. Credentials Committee
1. New Members approved:
Provisional Members: Oscar Batugal, MD, Internal Medicine; Gregory Bryan, MD, Internal Medicine; Kathleen Cansler, MD, Internal Medicine; Ralph Conti, MD, Pediatrics; Michael Fitting-Karagioizis, Osteopathic Medicine; Mark Glyman, MD, DDS, Oral/Maxilliofacial Surgery; Vicki Hom, MD, Pediatrics; Rajendra Kumar, MD, Pathology; Michael Jacobs, MD, Internal Medicine; Richard Jones, MD, Family Medicine; Thomas Kelly, MD, Ophthalmology; Eva Lang, MD, Ophthalmology; Asma Mian, MD, Internal Medicine; Elmer Palitang, MD, Infectious Disease; Thomas Vater, DO, Orthopaedic Surgery; Crispino Santos, MD, Anesthesiology; Gary Podhaisy, MD, Pediatrics; Craig Iwamoto, MD, General Surgery; Li Yee Guao, MD, Internal Medicine; Joseph Tangredi, MD, Otolaryngology; Vincent Siragusa, MD, Cardiology; Nguyet Le-Lindquister, MD, Oncology; Cesar Estela, MD, Physical Medicine/Rehabilitation
Full Members: Robert Berkley, MD, Cardiology; Steven Holper, MD, Physical Medicine/Rehabilitation; Arpine Tacvorian, MD, Pediatrics
E. Membership Committee
1. Member comparison
Dr. Hyer reported there are 815 paid members as compared to 732 members at this time last year in the month of May. We have 13 processed applications and 26 are in progress.
2. Should new members need 3 referral letters
Dr. Ames suggested the bylaws be examined. He stated we currently use the AMA guidelines for new members. The new Credentialing Committee for 2001-2001 is to take up the issue.
IV. Old Business
A. Update on Naming the Newsletter Contest
The newsletter will remain “
V. New Business
A. Cosmetology Board and scope of practice
Dr. Havins reported that the Cosmetology Board made a plea at the NBME board meeting for help with defining which cosmetic procedures constitute the practice of medicine. The board will send a recommendation to the NSMA government affairs committee to help with this.
B. Costs for membership plaques and name plates
Dr. Havins explained we are losing money on the costs of plaques and nameplates
C. Discussed Congressional Malpractice Legislation
D. Donations from Dr. Havins to the CCMS
Dr. Kingsley reported Dr. Havins has donated $5,661.52 of equipment to CCMS.
VI. Adjournment at
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