Simulated Deposition Teaches Emergency Clinicians About Malpractice Claims
ED providers often worry about lawsuits, yet many lack basic knowledge of malpractice litigation. “Additional targeted education will reduce concern surrounding lawsuits, and empower physicians to take an active role in their defense, should they ever be involved in a malpractice lawsuit,” says Kate Hughes, DO, assistant professor in the department of emergency medicine at the University of Arizona.
Hughes uses simulation as a tool to teach curricular objectives and reinforce medical knowledge on resuscitation, communication, procedural skills, and other topics. After conducting a literature search and finding few papers on malpractice education, Hughes decided to use her expertise in medical simulation to close knowledge gaps.
“I wanted to provide our resident physicians and advanced practice providers the education that a lot of us did not receive in our training,” she explains.
Hughes and colleagues developed an educational intervention based on a simulated malpractice deposition.1 “I identified the rapid cycle deliberate practice technique, which is often used for simulation debriefing, as an ideal method for the deposition simulation,” Hughes notes.
The technique combines two learning tactics: Repetitive practice for the learner, and directed feedback. The novel educational intervention required expertise from various individuals. Faculty at the University of Arizona College of Law identified a closed claim that involved clinical uncertainty in the ED (the allegation was delayed diagnosis). Banner Health’s risk management department connected the group with local malpractice defense attorneys who were willing to donate their time. Several lawyers helped with presentations, prepared residents for depositions, and provided expert review of the case. A board-certified emergency physician (EP) and CEO of a medical expert consulting firm took on the role of the “expert witness” in the simulation. “We had a well-rounded group to provide expertise on many different aspects of lawsuits,” Hughes says.
Before the event, 80 participants answered questions to assess their baseline knowledge: What is the evidence standard for emergency medicine malpractice lawsuits in Arizona? What does pure comparative negligence mean? Who determines if the “standard of care” has been breached in medical negligence cases? What is the definition of “standard of care” in tort law? Who should you notify if you receive a Notice of Claims or are served with a summons/complaint?
A majority of respondents answered only one question correctly. Fifty-eight residents, 13 faculty, six advanced practice providers, and three medical students attended the event, which consisted of a lecture and simulated deposition. The five-hour event was held twice to accommodate the regularly scheduled didactic times of three different residency programs.
The lecture covered basics of malpractice, including what constitutes the legal standard of care, an explanation of tort reform, the process of litigation (and the fact that some cases take years to resolve), and the chances of settling a claim (vs. going to trial).
A resident volunteered to play the role of the EP defendant during the simulated deposition process. The volunteer reviewed the redacted court documents (the plaintiff’s original complaint, the defendant’s answer, and transcripts of expert witness depositions). Two attorneys played plaintiff and defense attorneys.
After watching the deposition, participants acknowledged it cleared up some misconceptions. Some said they had expected the defendant to explain the medical decision-making involved in the case. “They learned that the deposition isn’t the time to teach someone about medicine,” Hughes says.
The “defense lawyer” explained deposition strategy — to answer specifically what is asked without volunteering additional information.
There was a practical reason for simulating a deposition instead of a trial. There is a good chance EPs will be deposed at some point, whereas the chances of becoming a defendant in a case that goes to trial are comparatively small. “A single simulation session is likely insufficient to truly prepare for a deposition,” Hughes says. “But this was an excellent start in addressing the curricular gap.”
Of 53 EPs who completed a post-event survey, most reported the event made them less anxious about depositions. This is important for emergency medicine faculty who train residents, and for residents themselves, according to Hughes.
“Should they face a lawsuit, a defendant who comes in with some baseline knowledge can be more active in their defense. That helps to mitigate some of the stress from the experience,” Hughes suggests.
Niels Rathlev, MD, FACEP, concurs it is important for emergency clinicians to understand how malpractice litigation works. “Most people don’t know anything about it until they actually have to face the music and be part of a deposition,” says Rathlev, chair of the department of emergency medicine at the UMass Chan Medical School – Baystate.
For ED professionals, it is vital to know the way their practice affects malpractice risks. “Providing evidence-based care, communicating well with patients, and demonstrating that you care about them is everything,” Rathlev says. “Patients and families are looking to create a relationship. They want to know you are taking their complaint seriously.” Rathlev would like ED clinicians to understand how their own documentation affects the outcome of malpractice litigation. EPs assume they are protecting themselves legally by placing blame on another provider. In reality, inflammatory comments can make claims indefensible. “Once you get witnesses and defendants blaming each other, you might as well settle that case,” Rathlev says.
Rathlev sits on the board of a malpractice insurance company. He and colleagues often see finger-pointing in medical charts. “Plaintiff lawyers benefit if any kind of dispute between medical providers is aired in the ED chart,” Rathlev says.
EP defendants can help themselves by sticking to the facts, without airing disagreements in the chart. Most often, it happens with consultants. EPs are frustrated because a consultant refuses to come to the ED — and say so in the chart. Rathlev offers this example of good documentation: “Asked consultant to come see the patient because I was concerned that the patient needed to go to the OR. The consultant said he would see the patient in the office the following morning.”
REFERENCE
- Hughes KE, Cahir TM, Nordlund D, et al. Fear not: Utilizing simulation for medical malpractice education. J Med Educ Curric Dev 2022;9:23821205221096269.
ED providers often worry about lawsuits, yet many lack basic knowledge of malpractice litigation. A simulation tool that teaches curricular objectives and reinforces medical knowledge on resuscitation, communication, procedural skills, and other topics could help fills the gaps.
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