Building Your Shield against an Inmate’s Legal Attack by Chris Swanberg, Attorney at Law Receiver’s Office of Legal Affairs 2011 Multidisciplinary Correctional Healthcare Conference Lion’s Gate Hotel, Sacramento, California November 3, 2011 (Thursday) This lecture and all opinions expressed by the lecturer are his/her opinions alone and do not represent the opinions of nor endorsement of the CCHCS, CDCR, California State Government or any other organizations. Any republication, retransmission, and/or reproduction of all or part of any materials presented herein is expressly prohibited, unless the copyright owner of the material has expressly granted its prior written consent to so republish, retransmit, or reproduce the material. All other rights are reserved. Medical-legal issues in the free world (and prison) Physicians and nurses working in prisons are no different from their counterparts in the free world in regards to concerns about medical malpractice, professional licensing boards and peer review. HAVE YOU EVER BEEN SUED? A recent study concluded that statistically every physician will be sued at least once during their career. MORAL: You WILL be sued, so plan for it. Swanberg’s note: If you are a CME or a CP&S your chances of being a named defendant in an inmate lawsuit go up exponentially. (Ex. The CME at CMF has been sued, at last count, 135 times.) LEGAL (COURT) ACTIONS BY INMATE/PATIENTS There are three main types of legal actions filed by inmate patients where a physician may be named as a defendant: 1. A Habeas Petition 2. A Federal constitutional claim (e.g. civil rights violation, deliberate indifference, or other constitutionally based claim. 3. A malpractice claim In addition, inmates are more frequently filing claims with licensing boards, such as the California Medical Board as well. The Petition for Habeas Corpus • A relatively common legal action brought by the inmate challenging a condition of confinement. In medical cases usually claiming that the CDCR medical staff is deliberately indifferent to the inmate’s healthcare needs. • Sometimes individual physicians are named in the accusation or text of the petition. However, physicians cannot be held personally liable in any way through this claim. The Petition for Habeas Corpus • The only remedy available to the inmate/patient (Petitioner) for this kind of claim is a court order to enact certain types of care requested. No monetary damages. • It is important to note that these cases are NOT medical malpractice cases so they should not be reported as such in answering questions to insurance carriers or medical staff’s applications. The Petition for Habeas Corpus • Physicians practicing according to utilization management and quality assurance guidelines can describe their decisions to the inmate as being consistent with best practices. • An appropriate explanation for a denial of MRI, for example, is to educate the inmate as to the best practices that focus on symptom management and functional status and do not recommend MRI. Deliberate Indifference Usually an underlying claim in a Habeas case or Federal Court lawsuit Deliberate indifference in the medical context occurs when an inmate’s needs are ignored and no decision making process is brought to bear to reach a decision on appropriate care. Deliberate indifference cannot exist where a medical decision was made, even if that decision was wrong. The error may constitute malpractice but cannot constitute deliberate indifference. SHIELD POINTER: Do you carefully document your decisions in the chart? Your note should address each presenting complaint – some diagnosis is better than none. EXAMPLE Inmate Phil Smith claims he has been denied back surgery by Dr. Ernest and is not receiving adequate pain medications to manage his pain. He sues alleging “deliberate indifference”. A reasoned decision to avoid back surgery in favor of more conservative care will not support a claim for “deliberate indifference” and obviously controlling the amount of opiates cannot be a “deliberately indifferent act.” Dr. Ernest may reduce the likelihood of suit by sending his more difficult cases to committee for their determination. Let us consider a the possibility of a complaint filed with the medical board against Dr. Ernest by family of a deceased Phil Smith a few months after he died from post operative complications of spinal surgery deemed unnecessary by experts hired by the Smith family. Your thoughts? SHIELD POINTER: Following UM guidelines can help avoid referrals later deemed “unnecessary”. Civil Rights Actions • charges against any • If the Plaintiff can person acting “under prove the denial of color of State law” constitutional rights, claiming a violation awards can be of United States substantial including Code title 42 section payment of attorney 1983 for deprivation fees, monetary of the rights afforded damages and under the punitive damages. Constitution. Civil Rights Actions Unless physicians actions are actually beyond the pale of reason and decency, it is difficult to a point approaching virtual impossibly for an inmate to make a case imposing personal liability upon a physician based on civil rights violations. • Your denial of a controversial therapy, or any denial based upon your best judgment will never be a successful ground for a civil rights claim. ON THE OTHER HAND: Providing different treatment for the same condition to a Hispanic inmate as compared to a White inmate can serve as a basis for a successful civil rights claim. EXAMPLE Inmate Pearl Jones complains that she underwent a hysterectomy under your orders that leaves her (obviously) permanently infertile. She accuses you of maliciously sterilizing her without any medical necessity, treating her differently from others in similar circumstances on account of her race. You requested/authorized the hysterectomy after a community gynecologist recommended the procedure to treat dysfunctional uterine bleeding. How can you reduce risk of claims against you? SHIELD POINTER: Well documented informed consent for any procedure is worth it’s weight in gold in litigation cases. Medical Malpractice • To prevail and win a monetary award (which is • Claims usually filed in the purpose of the suit) the state superior the patient filing the court by the patient or action (Plaintiff) must his/her survivor(s) prove to a judge or 9 out who allege(s) damage of 12 jurors, by the by a healthcare preponderance of professional or evidence, that the health healthcare care professional organization’s error. (Defendant) failed to meet the standard of care and that this failure caused harm. Medical Malpractice • It is important to • Of the lawsuits filed naming appreciate the CDCR physicians as difference between civil defendants, malpractice claims are in the minority. trials that find liability based upon the majority but not • Malpractice claims require the filing of a Government necessarily all of the Tort claim as a prerequisite evidence as opposed to to suit, so advance notice will a criminal trial wherein be had in such cases. guilt is determined with support of virtually all of the evidence (beyond a • The State of California will defend and indemnify you in reasonable doubt). such cases. Medical Malpractice • it is unusual for • Excepting the most inmates to suffer rare of circumstance a damages large enough physician or nurse to attract the interest working for the CDCR of an attorney, much will never have to less make any make any payment in headway without a medical malpractice attorney case even if a representation. judgment is issued against him/her. Medical Malpractice • Two variations on the medical malpractice claim do come up in the free world that we rarely see in the prison setting: Claims of intentional harm & Elder Abuse Claims of Intentional Harm • Associated with medical care are filed as intentional torts, usually in the form of a charge of battery, claiming harm from a procedure without consent or from reckless behavior. • The award sought in these law suits usually includes “punitive” damages. Claims of Intentional Harm • An employee proven to have acted far outside the scope of duties and proven to have committed an outrageous could find himself or herself without support of the State. • The State may not pay punitive damage awards against employees. Elder Abuse • An elder abuse claim is made on behalf of a patient over the age of 65 or under 65 but unable to care for himself/herself • In the elder abuse claim, the Plaintiff alleges a deliberate act by the Defendant to injure the vulnerable and dependant adult. State Professional Review Boards • are consumer • Recent statutes agencies that serve mandate notices in the community by patient exam rooms taking complaints to promote about healthcare consumer professionals. complaints from the • they serve the public free world and through critical prisoners alike. review and discipline of individual doctors and nurses. Peer Review by Healthcare Organizations • Unless a practitioner • In California Correctional Healthcare works alone, with no system peer review is hospital or clinic performed medical affiliations, his or her management. practice must come • Some institutions may under the scrutiny of have legally mandated peers. local peer review. All • In the free world peer CCHCS clinicians are review usually takes the subject to HQ peer form of hospital or HMO review as well. committee review. Peer Review by Healthcare Organizations • CDCR prefers to educate providers and stand by employed providers in the course of any clinical review or challenges by state agencies. • Thus, compared to the free world, the CDCR will generally be more supportive in the process of peer review. The Office of Legal Affairs stands ready to assist in any inquiry from the Medical Board or other licensing board based on an inmate complaint. General Principles to Reduce Risk of MedicalLegal Action in Free World and Corrections • It is worth reiterating the message given so many times before that healthcare outcomes are best when communication with patients is clear and well documented. • Professional review board and peer review rely heavily upon the medical record to determine the quality of care. Remember the old adage in healthcare: If it isn’t documented in the chart, it never happened. General Principles to Reduce Risk of MedicalLegal Action in Free World and Corrections • patients, whether behind or outside the wire, are less likely to file law suit or make complaints if they understand the reasons for the medical care provided to them. • Sharing with the patient your understanding of the risks and benefits of any choice, and overtly demonstrating a concern for patient welfare is the best way to reduce adverse outcomes and also persuade the patient and others reviewing medical care that healthcare was appropriate. PART II –Special Correctional Medicine Concerns Patient Refusals • Patient Refusals of examinations and/or proposed therapies are especially troublesome in prison and raise multiple ethical and legal questions that may seem nearly overwhelmingly complex at first. However, by applying basic legal and medical principles the appropriate course of action is usually clear and most legal complications can be avoided. The First Step • define the problem by • reasonable practice establishing a diagnosis. requires that history, physical examination • The diagnosis need not and the appropriate be correct as the law lab/x-ray studies be does not demand performed in order to perfection, and indeed reach a diagnosis. it may not be possible to deliver an accurate diagnosis in all cases. The Second Step • after the documentation of a diagnosis based upon evidence in the history and exam is to document the refusal by the patient to either be further examined or to cooperate with the proposed therapy. • It is important to accurately report the refusal. • Poor documentation of patient refusals is commonplace in UHR’s. SHIELD POINTER: When the consequence of a refusal can have serious health consequences, consider making a separate progress note entry detailing your discussion with the inmate/patient of those consequences and of his/her understanding of those and the continued desire to refuse even after that discussion. Refusals Can Pose Different Levels of Activity Necessary on the Part of the PCP • A “no show” for a liver biopsy (where the reason for the no show is unknown) is different from an overt statement by the patient that he refuses to undergo liver biopsy because he is afraid of needles, and both “refusals” by the patient are very different from a denial by the MAR committee in the event the patient is psychiatrically unstable or scheduled for parole in a time frame too short to make practical the scheduling of a biopsy. The Third Step • document that the patient was informed and appeared to understand the consequences of his/her refusal and appears to understand. • This is crucial component of the informed consent which must be provided for any healthcare decision, including the “consent” to NOT accept healthcare. The Third Step • If the patient appears to • understand the consequences of his/her decision then there need not be any further efforts by the provider to pursue the proposed treatment. If the consequence of not accepting medical care or treatment is likely to be dire, including death, it is prudent to involve other professionals (nurses, medical/nursing leadership) in the discussion and document that these others were witnesses. The Fourth Step • Involve Mental Health when any doubt exists about the mental competence of the patient to refuse therapy. • It is prudent to have the opinion of a psychiatrist for challenging cases such as: 1) patient has a mental health diagnosis 2) patient’s consent is not clear 3) consequence of refusal is dire or fatal. The Fourth Step Because a patient is also an inmate does not mean that they have lose certain constitutional rights, including the right to participate in their medical care. That right includes the right of a competent inmate/patient to refuse medical care. An inmate/patient still has full autonomy in the decision making process. • This means a patient can instruct physicians to give no chemotherapy, perform no surgery, do no CPR, to do no dialysis, and to not feed against his will.* How many times do prison healthcare personnel need to document the refusal? • Once an informed consent for NO care (i.e. an instruction refusing care) is given by a mentally competent person, the prison personnel need not approach the patient again solely on that issue unless circumstances change. (e.g. No requirement to schedule a follow-up appointment to re-ask for consent.) Pitfalls in Dealing with Non-Compliant Patients • Patients change their minds from day to day and may deny they ever refused the care they now want. The “he said, she said” conflict is a pitfall that providers should avoid in dealing with non compliant patients. The importance of a complete entry in the chart of the informed consent process and refusal is your best defense against this. • A clear and complete medical record should preserve the accurate report of events. • In follow-up encounters where a prior refusal is in the chart, it is good to inquire if the patient wishes to continue to refuse, and document the refusal again. Pitfalls in Dealing with Non-Compliant Patients • Inmates who are non compliant deserve extra attention and the medical records should be handled with extra care so that all pertinent events are in order and easy to find. • Consider involving mental health if you harbor ANY concerns about the competency of a refusal. • Witnessed refusals documented in the UHR should put to rest the claim by patients. Pitfalls in Dealing with Non-Compliant Patients • Documenting discussion • Also important, with family members whether or not family makes clear the can be found, is providers concern and engaging the ethics compassion, and also committee or quiets family members equivalent in the prison, who might otherwise at headquarters and the blame the provider for hospital. bad outcomes due to the patient’s own noncooperative nature. Pitfalls in Dealing with Non-Compliant Patients • The Receiver’s Office of Legal Affairs stands ready to assist providers in the management of particular issues in these cases. Individuals can dramatically reduce or eliminate liability for decisions by documenting the many participants in a difficult decision. What to do when patients miss or refuse their appointments? What is the healthcare provider’s legal/professional duty? • In keeping with the • In far less time that it modern standards of would take to send care, healthcare out mail or make providers have a telephone calls duty to follow up on inmate/patients can missed be found by custody appointments with and even delivered some notice to the to the clinic. no-show patient. What to do when patients miss or refuse their appointments? What is the healthcare provider’s legal/professional duty? • Physicians and nurses should not be anxious that they will be blamed for a bad outcome for patients who fail to appear so long as they document some minimal inquiry in regards to the patient’s welfare. SHIELD POINTER: Although in practice it is the obligation of the clinic OT scheduler to reschedule inmate/patients who miss their appointments, as a PCP it is a good practice to inform the nurse of your desire to see the patient who missed the appointment, check the reason for the appointment and advise of any that may be time sensitive, and document in the UHR that you made the request to have the patient re-seen. The following steps are suggested: 1. Documentation of missed appointment in the UHR 2. Physician signature and comment as indicated on missed UHR to demonstrate awareness of the relative risks associated with the no show 3. Repeat ducat issued according to physician determination of need for the visit 4. On rare occasions, physician or nursing can ask custody to bring patient to the medical clinic or TTA for examination regardless of the inmate’s initial refusal. The following steps are suggested: (continued) 5. A “safety check” and 6. Emergency visit by first report back to medical can responders for “man down” be ordered for no-show if safety check reveals inmates if there is any significant problems , such as concern over their alterations in consciousness immediate well-being. or immobility. This “safety check” can be done in lieu of physically bringing the inmate to the medical clinic, and thereby avoid unnecessary confrontations with a non compliant patient. What to do when patients miss or refuse their appointments? What is the healthcare provider’s legal/professional duty? A Cautionary Note: • Overzealous pursuit of the missed appointments can create its own set of problems. As stated above, inmate/patients have the right to refuse therapy. Inmates may view physicians as overstepping their boundaries when entering the inmate/patients living quarters to check on the status of an individual patient. The rule of thumb is that physicians and nurses do not enter the prison housing areas except with custody, usually in cases of emergency need. Determining Competence • Basic consideration in all encounters • Consent only valid from competent patients • Medical decisions by non-competent patients may not be properly followed. • Physicians appropriately determine competence based upon their training and evidence of normal mental status. A physician should not duck a competency determination on the belief that it better determined by mental health except in difficult cases involving known mental health patients. Surrogate decision makers • Incompetent patients need a surrogate decision maker • Surrogates ideally are identified by patient when he/she is still competent • If no surrogate decision maker identified orally or in writing by competent patient, then physician may accept surrogate decision from any family or friend who appears to be capable of expressing patient’s best interests • Physician may be surrogate decision maker in absence of all others, especially in an emergency Forced Examination ( by Custody Request) • Usually arises as a body cavity search request by custody on patient unwilling to voluntarily undergo examination. • Best plan is to explain medical necessity and obtain consent • If no medical necessity for body search, physicians reasonably should refuse to participate. More on Body Cavity Search • Medical-legal issue can be complicated and frequently merits discussion with counsel • Physician may find conflict exists between the patient’s rights/interests and the institutional safety. Physicians need to document apparent conflict and reconciliation to avoid charges of negligence, deliberate indifference, or battery. PART III – Summary and Conclusion, Questions and Answers Summary and Conclusion, Questions and Answers Effective communication is no less important in prison than free world. A majority of patients who file suit do not feel their physician cares about them, and that the physician has not adequately explained their diagnosis and/or reasons behind the treatment plan, or provided meaningful explanation of any options. Summary and Conclusion, Questions and Answers Documenting diagnoses protects providers against adverse findings in virtually all causes of action, including medical malpractice, willful torts, habeas petitions for deliberate indifference, claims of civil rights violations, medical board complaints and peer review discipline. Summary and Conclusion, Questions and Answers • Within CDCR medical management the following areas are the biggest generator of inmate complaints and litigation: • 1. Access to care • 2. Medication management • 3. Lost to follow-up A PARTING THOUGHT • The best defense a physician has against a lawsuit is to care about your patient, listen to their complaints, and then follow good medical practices, effectively communicating with them in the process. Most physicians do these things, but many fail to adequately create the supporting record for later use. Defensive medicine practices waste resources, and may only serve to create more litigation in the long run. Finally, and not related to my main theme, I want to leave you with a inspirational thought to ponder. Here’s proof that with careful planning anything is possible. Thank you for your attention today !