MEDICAL LEGAL ISSUES

MARCY AUCLAIR
ATTORNEY ADVISOR FOR HEALTH CARE LAW
BUREAU OF MEDICINE AND SURGERY
Phone: (202) 762-3089
Email: marcy.auclair@med.navy.mil
MEDICAL MALPRACTICE
Why Claims are Filed:

 Upset with the System

 Devastating Injuries
 Unreasonable Expectations
 Unexpected Results
 ELEMENTS OF
NEGLIGENCE
 Duty
 Breach of Duty

 Resulting in an Injury

 Causation

 Reasonably Foreseeable

 Damages
 DUTY
 Due Care
 Lowest Acceptable Standard
Each physician may with reason and
fairness be expected to possess or have
reasonable access to such medical knowledge
as is commonly possessed or reasonably
available to minimally competent physicians
in the same specialty or general field of
practice throughout the United States, to
have a realistic understanding of the
limitations of his or her knowledge or
competence, and in general to exercise
minimally adequate medical judgment.
Establishing Standard of Care
 Locality Rule (old rule)

 Standard of Care established by

practice in a particular geographic
area

 Problem: Difficulty in getting Drs.

to testify against their peers.
Establishing Standard of Care

 National Standard
 Presumes basic level of medical
training and practice

 Resource Based Caveat:

Standard of Care is expanded or
limited by available resources
Proving the Standard of Care
 Expert Witnesses: Standard of Care is
established by professionals in the field.
 Easy to qualify as a witness; question is

how much weight will jury give the

testimony...
 Jury hears testimony from opposing

expert witnesses and then must choose

which is right
 Federal Tort Claims Act
28 U.S.C. 1346(b)
...the District Courts.... shall have exclusive
jurisdiction of civil actions on claims against
the United States for money damages accruing
on and after January 1, 1945, for injury or loss
of property, or personal injury or death caused
by the negligent or wrongful act or omission on
any employee of the Government while acting
within the scope of his office or employment...
 FTCA
 Limited Waiver of Sovereign Immunity
for:

 Deviations from Standard of Care,

 By Government Employees,

 Acting within the scope of Federal

Employment
 Excluded Claimants
 FERES DOCTRINE: Feres v. United
States, 340 U.S. 135 (1950)

 Congress Did Not Intend to Waive

Sovereign Immunity for Suits by
Members of the Armed Forces

 Applies to Derivative Claims

 FERES DOCTRINE

 Unique Relationship Between

Service Members and the
Government
 Other No-Fault Military
Compensation Schemes (PEB)
 Negative Effect on Good Order
& Discipline
 Military Claims Act
 Similar to FTCA but applies Overseas

 No Judicial Remedy
 Standard of Care
 FTCA: Apply the Law of the Location of the
Tort

 MCA: Apply “General Principles of

American Law”

 Apply Federal Procedural Law

 Government Employees
 Active Duty Military
 GS/GM/SES Civilians
 Red Cross/Other volunteers
 Personal Services Contractors
(for purposes of FTCA only)
 Independent Contractors are NOT
Government Employees
 Scope of Employment
 Must be performing authorized military
duties
 Training Affiliation Agreements

 External resource Sharing Agreements

 Criminal Misconduct not Covered

 Moonlighting or Volunteer Work Not
Covered
 Statute of Limitations
 Claim Must be Filed within 2 Years of
knowledge of “existence and cause” of the
injury.

 SOL continues until plaintiff has

information necessary to discover “both
his injury and its probable cause.”
 Litigation Under FTCA
 Must Exhaust Administrative Remedies
(OJAG Code 15)

 Must File Suit Within 6 Months of Denial of

Claim

 May File Suit Anytime 6 Months After

Presenting Claim (Constructive Denial)
 Personal Liability
 Medical Malpractice Immunity Act
(10 U.S.C. 1089) “Gonzalez Act”

 Health Care Providers have

Absolute Immunity from Liability
Performing Medical Related Duties
 Does not Apply Overseas
 Personal Liability
 Federal Employees Liability and Tort
Compensation Act (28 U.S.C. 2679)
“Westfall Legislation”

 FTCA is the Exclusive Remedy for Negligence

of Government Employees Acting in the Scope
of Employment
 Protects Against Personal Liability

 Removes individual & substitutes U.S. as

defendant (28 U.S.C. 1442a)

 Avoiding Claims
 Consult - because no one can do it all
 Know what you don’t know

 Get help when you need it

 Avoiding Claims
 Documentation - because people forget/lie

 Legible
 Don’t backdate
 Document thought process
 Differential diagnosis
 Informed consent
 Consults
 Avoiding Claims
 Patient Relations - because technically
good care is not enough
 Listen

 Respect

 Communicate

 Care
TYPICAL CLAIMS SCENARIOS
 Failure To Timely Diagnose Cancer:
● Ensure appropriate diagnostic tests (scans, blood
test, etc.) and/or referral is done and completed in a
timely fashion.
● Be sure patient know exactly how the scheduling and
follow up process works at the time the referral is made
for diagnostic tests or consults with a specialist.
Document the instructions given to the patient in the
medical record.
 Typical Claims Scenarios
 Failure To Timely Diagnosis Cancer (Cont.)
● At each clinic visit, make a point to review the last
several clinic visits and follow up with any tests or
referrals that were ordered but not completed.
● Be sure to document what specific advice and
instructions are given, especially all information
reasonably relevant to making an informed decision.
● Computerized CHCS records are discoverable; it
reflects patient appointments and all telephone contacts
– be sure to adequately document those phone calls.
 Typical Claims Scenarios
 Delay in Acting on Obstetric Emergency
● Know the specific fetal and maternal clinical
parameters beyond which intervention is required.
● Notify senior staff immediately when any of the
clinical parameters are exceeded
● Be vigilant in monitoring both mother and fetus when
embarking on an off-label use and/or dosage of a
particular medication.
 Typical Claims Scenarios
 Failure To Recognize an Emergent
Condition
● Important to formulate a differential diagnosis when
confronted with a significant new or worsening symptom
within the context of an established chronic problem
● Equally important that the new differential diagnosis
be documented in the patient’s medical record at the
time of the visit, along with whatever workup was done
to rule out any emergent condition on the list.
ADVERSE PRIVILEGING
 FUNDAMENTAL PRINCIPLES

 Patient Safety

 Quality Assurance / Risk Management

 Individual Due Process Rights

 BUMEDINST
Talk
6320.67A CH 1
I
to me did (Adverse
or it !!!
else!! Privileging
Actions, Peer
Review Panel
Procedures,
and Health
Care Provider
Reporting)
 FIRST LEVEL
PEER
REVIEW
(NON-ADVERSE)
 Department Heads

 Clinical Directors

 QA Review (Occurrence Screens)

 ECOMS Review
ADVERSE PRIVILEGING

DEFINITIONS
Adverse Privileging Action

 The denial, reduction, suspension or

revocation of clinical privileges based upon
provider impairment (professional,
behavioral, medical), misconduct, or lack of
professional competence.
 Abeyance
 The temporary removal of a privileged
provider from clinical duties while an inquiry
into allegations of misconduct or impairment
is conducted.

 An abeyance is not an adverse action.

 Denial of Privileges

 An adverse action taken by a privileging authority which

denies privileges to a provider when those privileges
would normally be granted at the facility to a provider of
similar education, training and experience occupying the
same billet.

 Can only be imposed after the opportunity for a peer

review hearing has been afforded the provider.
 Summary Suspension
 The temporary removal of all or part of a
provider’s clinical privileges “prior” to the
completion of due process procedures.

 Not reportable to the National Practitioner

Data Bank unless the final action is adverse.
 Suspension of Privileges

 An adverse action temporarily removing all

or a portion of a privileged provider’s
clinical privileges after due process
procedures are completed.

 Reportable to the NPDB.

 Reduction of Privileges

 An adverse privileging action which

permanently removes a portion of a
provider’s privileges.
 Can only be imposed after the opportunity for

a peer review hearing has been afforded the

provider.
 Reportable to NPDB
 Revocation of Privileges

 An adverse privileging action that

permanently removes all of a provider’s
clinical privileges.
 Can only be imposed after the opportunity

for a peer review hearing has been afforded

the provider.
 Reportable to the NPDB
Types of
provider
conduct that
could trigger
Peer Review:
 IMPAIRMENT
 Any personal characteristic or
condition which may adversely
affect the ability of a provider to
render quality healthcare.
THREE CATEGORIES OF
IMPAIRMENT

 PROFESSIONAL

 BEHAVIORAL

 MEDICAL
PROFESSIONAL
IMPAIRMENT

 Deficit in Medical
Knowledge, Expertise or
Judgement
 BEHAVIORAL IMPAIRMENT

 Includes unprofessional,
unethical, or criminal
conduct
 MEDICAL IMPAIRMENT

 Conditions which
permanently
impede or Help Me
preclude a
provider from
safely practicing
medicine
 PEB POLICY AND PEER
REVIEW
 PEB Policy Letter 7-94 requires all medical boards
involving MC officers to have a command evaluation
of the physician’s level of function and list of
privileges as determined by peer review.
 Per SECNAVINST 1850.4E, Para. 3304b, A medical
corps officer in any grade will not be found unfit for
duty if he or she can perform satisfactorily in an
assignment appropriate to grade, qualifications and
experience.
 PEB POLICY CONT.
 Paragraph 3304b also states a medical doctor will
have a review of clinical privileges with peer review
required before being found unfit.
 If a PA believes a provider has a permanent medical
condition that impedes on his or her ability to safely
practice medicine, adverse action should be initiated.
 No adverse privileging action required if PA believes
there is no impact on patient safety.
 OTHER ADVERSE ACTION
GROUNDS
 MISCONDUCT

When there is a nexus between the act committed and the

delivery of safe patient care.
 VIOLATIONS OF UCMJ
 CIVILIAN CRIMINAL LAW
VIOLATIONS
 OTHER ACTS LISTED IN ENCL (2) OF
BUMEDINST 6320.67A /Ch-1
 Drug Abuse

 Alcohol Abuse
 Aiding or abetting the practice of
medicine by an obviously incompetent
or impaired provider
 Sexual Abuse or sexual
exploitation of a patient; or
of others if the privileging
authority determines that
under the circumstances of
such act impairs the
provider’s overall
effectiveness and
credibility within the
health care system.
 Self-prescribing controlled medication
for one’s own use or for family
members.
 Failure to report disciplinary action or

sanctions taken by a professional or

governmental organization
 Failure to report malpractice awards

occurring outside DOD facilities

 REPORTING OF MISCONDUCT

Healthcare Integrity and Protection Data Bank (HIPDB)

Administered by DHHS, same staff that run NPDB

 A new fraud and abuse data collection program for

reporting certain final adverse actions taken against
health care providers, suppliers, and practitioners.

 The purpose of the HIPDB is to combat fraud and abuse

in health insurance and health care delivery and to
promote quality care.
 REPORTING MISCONDUCT CONT.
 DOD 6025.13-R: SG responsible for reporting
adverse actions occurring on or after 21 Aug 1996.
 Reportable Adverse Actions: UCMJ actions; adverse
personnel actions (military and civilian); that are
against a health care provider, supplier, or
practitioner based on acts or omissions that affect the
delivery of a health care item or service is reportable.
 ALLEGATION

 An ALLEGATION can be a:

 PATIENT COMPLAINT
 PATIENT CLAIM OF MALPRACTICE

 SF-95 (Claims Form)

 OCCURANCE SCREEN

 MEDICAL STAFF OBSERVATION

 CRIMINAL REPORT
 FORMAL INVESTIGATON

 Unless the CO is confident that the

allegations are untrue or are of such a minor
nature that no adverse action would be taken
even if they were true, an investigation must
be ordered.
FORMAL INVESTIGATION

 REPORT MUST BE COMPLETED

WITHIN 60 DAYS IF A PROVIDER’S
PRIVILEGES HAVE NOT BEEN
PLACED IN ABEYANCE.
 IF A PROVIDER’S PRIVILEGES WERE
PLACED IN ABEYANCE, THIS REPORT
MUST BE DONE WITHIN THE 28 DAY
ABEYANCE PERIOD.
REMINDER:
THE INVESTIGATION IS A
QUALITY ASSURANCE
DOCUMENT PROTECTED FROM
DISCLOSURE BY 10 USC 1102
INITIAL PRIVILEGING DECISION

 If privileges placed in abeyance, the CO must

decide on or before day 28 to either reinstate or
summarily suspend privileges.

 If privileges summarily suspended, a full and fair

hearing must be conducted.
 NOTIFICATION

 If a CO summarily suspends a provider’s

privileges, written notice must be given to
the provider within seven (7) days.
 PANEL PROCEDURES

 If a provider elects a hearing, the hearing

cannot take place sooner than thirty (30)
days after the provider receives the notice
of suspension.
 This can be waived if both parties agree.

 If a provider waives their appearance, the

hearing can take place anytime after the
waiver is received in writing.
 PANEL PROCEDURES

 At least 10 days before the panel hearing, the CO

must inform the provider:
 Of the date, time and location of the hearing

 That failure to appear at the hearing constitutes

a waiver of appearance
 Of the rights and obligations of the provider at

the hearing
 Names of witnesses including expected

testimony
 Copies of all documents panel will receive
RESPONDENT’S HEARING
RIGHTS
 TO COUNSEL:

 MILITARY MAY REQUEST JAG

 CIVILIANS AT OWN EXPENSE

 RESPONDENT’S HEARING
RIGHTS

 TO CHALLENGE PANEL MEMBERS

 REMOVAL FOR CAUSE ONLY

 TO CALL WITNESSES

 TO SUBMIT EVIDENCE

 TO TESTIFY IN OWN BEHALF

 Panel Membership

 Must have at least 3 members, no more than 5.

 Panel members must be privileged providers!!!!!
 The Chairperson of the Credentials Committee should
chair the peer review panel, unless:
 They have advised the CO on the case
 They have investigated the case

 One member of the panel should be from the same

specialty as the respondent.
 The Recorder

 At the time a panel is appointed, the PA must also

appoint a Recorder (a qualified officer) for the
panel.

 The Recorder presents documentary evidence,

witness testimony, and addresses the panel.

 The Recorder may be a JAG.

 The Legal Advisor

 A Legal Advisor may be appointed to the panel to advise

the panel members on issues of evidence and procedure
only.
 The Legal Advisor should not actively participate in the
hearing accept when asked to advise on a specific issue.
 The Legal Advisor may not be present during panel
deliberations.
 The Legal Advisor should be drawn from a command
different from that of the Privileging Authority.
 HEARING
PROCEDURES
 PANEL PROCEDURES
 NO RULES OF EVIDENCE

 Relevancy
 Materiality
 Competence
 Cumulative
 Recording the Hearing

 The panel hearing must be recorded by a

reliable recording device.

 Only the Recorder (or other professionally

retained reporter) may use a recording
device in the hearing.
 FINAL TRANSCRIPT
 May be summarized, unless the action is
appealed by the provider.
 Any appeal must be accompanied by a
verbatim transcript. Please number the
transcript pages!
 STRONGLY RECOMMEND USE OF
PROFESSIONAL COURT REPORTER
 PEER REVIEW PANEL
REPORT
 DUE 14 DAYS AFTER HEARING

 MUST STATE:
 ALLEGATIONS (As listed in Summary Suspension)

 FINDINGS OF FACT FOR EACH ALLEGATION

 WHETHER EACH ALLEGATION IS TRUE,

PARTIALLY TRUE OR UNTRUE

 RECOMMENDATIONS ON PRIVILEGES OF

PROVIDER
 Recommendations may include:

 - Reinstatement (No conditions can be attached

to a reinstatement; can recommend additional
training)
 - Initial granting of privileges
 - Denial
 - Reduction
 - Suspension
 - Revocation
 PEER REVIEW PANEL
REPORT

 A COPY MUST BE PROVIDED TO THE

RESPONDENT AT THE SAME TIME ONE IS
GIVEN TO THE COMMAND

 RESPONDENT HAS 7 DAYS TO COMMENT

ON THE PANEL REPORT. THE COMMENTS
ARE FORWARDED TO THE PA.
 CO FINAL DECISION

 PA MUST MAKE HIS DECISION WITHIN 7

DAYS AFTER RESPONDENT’S COMMENTS
ARE RECEIVED.
 MUST GIVE WRITTEN NOTICE OF THE
FINAL DECISION TO THE RESPONDENT
WITHIN THAT 7 DAY WINDOW.
 IF ADDITIONAL TIME IS REQUIRED,
CONTACT BUMED SJA FOR GUIDANCE
 CO FINAL ACTION

PA can agree or disagree with panel’s findings

and recommendations, but must take some
action to either reinstate, grant initial
privileges, deny, reduce, suspend or revoke
privileges.
PA’s can non-concur with a panel’s findings,
conclusions and recommendations, but their
decision must be reasonably based on the
hearing record and their reasons must be
articulated in the final decision letter.
 APPEAL

 DUE 14 DAYS AFTER FINAL DECISION

 FORWARDED TO CHIEF, BUMED VIA PA

 REVIEW STANDARDS
 LIMITED TO APPEALED GROUNDS
 ABUSE OF DISCRETION
 APPEAL

 Appeals are reviewed by M00J and the

Chief of the appropriate Corps.
 Chief, BUMED makes the final call.

 The standard for decision on appeal is

whether the decision of the PA was an

abuse of discretion.
 NPDB REPORTING

Final actions resulting in denial, reduction,

suspension or revocation of a provider’s
independent practice are adverse actions that
are reported to the National Practitioner Data
Bank by BUMED SJA.