Malpractice

On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim Health Aff January 2013 32:1111-119;

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New York State

Medical malpractice actions must be filed within thirty months of the date of the act or omission that gave rise to the injury occurred. For malpractice actions based upon the presence of a foreign object within the body of a patient, the action must be filed within one year of the date that the foreign object was or should have been discovered. For medical malpractice actions involving minors, a minor ordinarily has three years from the date of his or her eighteenth birthday to commence litigation but the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury.

D. An expert whose qualifications are determined by the court and may vary depending upon the circumstances of the care, and in rare circumstances, may not be required at all.
 

 

LAWSUITS: PART 1 AN ATTORNEY’S PERSPECTIVE From High Risk Emergency Medicine, sponsored by the Center for Emergency Medicine Education William H. Ginsburg, JD, Principal Member, Cotkin, Collins and Ginsburg, Los Angeles and Santa Ana, California, and Las Vegas, Nevada Introduction:

poor charting causes most lawsuits; physicians use deductive reasoning (ie, premise followed by conclusion); attorneys use inductive reasoning (start with conclusion and work backward to find premise on which conclusion can be justified); both valid methods of reasoning, although physicians must deal with “hot” facts and have little time, whereas attorneys have “cold” facts and have much time to find premise Basis of claims:

“if it isn’t in the chart, it wasn’t done”; “if you didn’t put it in the chart, you didn’t consider it”; “if it’s written down in the chart incorrectly, then you didn’t understand it”; “if you didn’t give all of the best medications or cocktail of medications, then you didn’t know what you were doing” Image of physicians:

American public no longer places physicians on pedestal; physicians make too much money, charge too much, and often do not know what they are doing Medical defenses:

medical perfection not required; “doctor who gets an untoward result is not necessarily negligent if his or her care otherwise was within the standard of care applicable to the community and the circumstances”; physicians must base decisions on judgment, which does not always yield good clinical result; mistakes and medical errors are not necessarily negligence; “where there is more than one recognized method of diagnosis or treatment and no one of them is used exclusively and uniformly by all practitioners of good standing, a physician is not negligent if in exercising his or her best judgment he or she selects one of the approved methods which later turns out to be a wrong selection or one not favored by certain other practitioners” Jurors’ attitudes:

impression jurors form of defendant physician extremely important; failure to diagnose or (in retrospect) effectively treat a condition does not constitute malpractice; jurors willing to listen to reasoning behind physician’s thought process; willing to listen to expert witnesses and physician; by end of case, speaker wants jurors to walk away wanting defendant to be their emergency physician if they ever need one; jurors unwilling to resolve doubts in favor of physician when physician fails to obtain complete history and conduct adequate physical examination Charting:

speaker does not like template charting unless blanks available for physician to fill in that demonstrate physician knows patient thoroughly and he or she considered and ruled out most serious conditions first; physicians should read notes from previous care givers (eg, paramedics, nurses) and initial their comments, indicating physician read them (unless this is done, “nobody believes that you read the paramedic run, nobody believes that you read the nurses’ notes”) Trial law: “trial law is not a game but it is theater, and consequently, I’ll never tell you what to say, but I’ll tell you how to say what you want to say properly”; “a good director doesn’t change the script; a good director changes the intonation, the presentation, and the method of the words that remain steady and true to the authorbut they’re presented in such a way that they make the impression that we want them to make” Consultations:

“when in doubt, obtain a consultation”; physician should think about and predetermine threshold, ie, situations in which he or she would call in consultant Patient expectations: jurors are also patients; jurors react angrily and define standard of care without regard to expert witnesses if they think that plaintiff was not treated as jurors would want to be treated in plaintiff’s circumstance; patients want to know truth about what is going on (do not want to be left alone with no explanation); do not care about other patients physician has to treat; want regular contact by physician; do not want to see loved one suffer; want responsive and attentive consulting and nursing staff; want to be treated as if they are important; want clear and complete explanations; involve patient’s family when possible and practical (avoid giving impression health care staff does not care; chart process of involving family); want continuity of care Consultants:

in court they claim, “if only I had been called,” “if only he or she had told me,” “if only I had known” Do not delay important diagnostic tests: still practicing defensive medicine because no limit to amount for which physicians can be sued or to circumstances that give rise to medical malpractice litigation Suggest and chart adjunct examinations: under law of negotiable instruments, last physician to see patient before serious condition discovered is liable for missing diagnosis; if woman who presents with ganglion on wrist says she has not been to doctor in 10 yr, and emergency physician does not recommend she see physician for complete physical examination (including gynecologic examination) and chart it, physician can be liable if serious condition discovered subsequently; if follow-up appointment necessary, physician or staff should help patient make appointment and document that this was done Medical records:

good charting no substitute for good judgment and patient rapport, but key to avoiding lawsuits; chart should show reasoning process that led to differential diagnosis and that physician considered all serious diagnoses first; give patient clear, readable, understandable follow-up instructions in appropriate language; speaker favors voice-activated dictation systems for charts; medical records have 3 purposes—1) remind original health care professionals what they have done, 2) alert other health care professionals to what has already been done, 3) serve as evidence in litigation Elements of good medical records:

are they legible? do they say what needs to be said? are they so convincing that they are difficult to attack? do not include comments that indict others; if, for example, consultant uncooperative, do not resort to name calling but chart how many times consultant was called, what was communicated, and “everything that you did, so that later on he can’t say, ‘he never told me about the child’s temperature’”; impossible to win case when physician cannot read his or her own writing; never alter chart improperly (use single line through deleted material and make reference point; at bottom of chart place reference symbol with change and reason for change); copy of any document physician produces for patient should go into chart (eg, prescriptions); unusual events should be charted and explained (eg, patient falling off gurney); because of epidemic of addiction, do not prescribe opioids without first checking to make sure real need present Language to avoid:

do not inadvertently use condescending language in charts and consultation reports; “the parents seemed responsible” innocent entry, but parents were ethnic Hispanic, physician was white, and jury was primarily Hispanic (took great offense); instead write, “procedure explained and parents agreed”; “she was a difficult woman” (female jurors take great offense; instead, “she was a difficult person” or “she was unruly and hard to manage, angry, and upset”); do not use phrases like “he was acting as though he was gay,” “typically Hispanic,” “typically Jewish,” “she was obviously faking” (instead, “symptoms appeared to be psychosomatic”); may need to be persuasive to get patient to agree to tests and/or further observation (be persuasive and chart your efforts); famous plaintiff’s argument—“sloppy in charting is sloppy in practice” Questions and Answers Sending patient through gatekeeper of HMO or to county hospital if patient indigent: no problem if patient not in critical condition; emergency physician can be liable until patient under care of another physician; be diligent in protecting patient; case of psychotic man who was treated, then told to go to county hospital for further treatment; patient never went to county hospital and stabbed woman to death in carjacking incident; plaintiff argued physician liable because physician should have physically taken patient to facility or made sure responsible person was taking care of him; in emergency situations, do what is right for patient and deal with insurance later; may be liable for delay in care Are small minority of physicians causing majority of lawsuits?

so-called malpractice crisis not caused by indemnity payouts but by cost of running system (mostly fees for attorneys and expert witnesses); physicians who are repeatedly sued usually dropped by insurance company Dealing with hospitalist who disagrees with physician’s recommendation:

physician’s duty to protect patient; if he or she believes hospitalist wrong, clearly chart reasons and communications with hospitalist, or petition chair of department with another physician

LAWSUITS: PART 2 MEDICOLEGAL CASE STUDIES—B. Joshua Rubin, MD, President and Chief Executive Officer, EMSource, Roseville, California; William H. Ginsburg, JD, Principal Member, Cotkin, Collins and Ginsburg, Los Angeles and Santa Ana, California, and Las Vegas Issues of consent Separate consent form for lumbar puncture (LP): LP not particularly dangerous or complicated procedure; other than fact that employer or group may require it, form not necessary because if emergency exists, consent implied; if procedure performed on child, may only accomplish making parents nervous by asking for additional consent; true informed consent comes from physician/patient relationship and communication, not from signature; in addition to signed informed consent form, Ginsburg would like to see statement in chart saying procedure was discussed with patient or patient’s parents, that risks and alternatives explained, and that party agreed to procedure (“worth 10 informed consent forms”) 8-yr-old with facial laceration that brought in by neighbors: parents gone for weekend and cannot be reached; no consent needed; do what is best for patient Adolescent girl with vaginal bleeding: says she is pregnant, wants to be treated, but does not want family notified; adolescent patients need physician’s protection and confidentiality, plus law requires it; every state has “emancipated minor” law; legislative intent is to protect children so they can access needed medical care for certain conditions (eg, contraception, sexually transmitted diseases [STDs], pregnancy); physician could be liable for adverse events resulting from notifying parents Telephone advice: give selective first aid advice in cases involving, eg, arterial wound, chemical in eye, ingestion of toxin; use telephone log to track calls and to document type of advice given, eg, primary first aid advice, medical advice; if patient had been seen before phone call, put him or her in touch with physician who provided care Issues related to duty to third parties Medications that impair: man 26 yr of age complaining of severe headache requests meperidine (Demerol) for typical migraine headache; receives injection and is discharged 30 min later; on way home, patient crashes into another automobile; everyone involved in crash sues physician and hospital http://www.audio-digest.org/pages/htmlos/06210.5.4446057220213861273/EM2118 (1 of 5)10/30/2004 10:33:14 PM View Written Summary: Emergency Medicine, 21:18 Discussion: physician has duty to report to Department of Motor Vehicles (DMV) any condition resulting in episodes of syncope; failure to report makes physician liable; discharging patient too quickly after administering narcotic or other medication that causes drowsiness makes physician liable if patient operates vehicle or machinery and injures self or third party; reasonable approach is to make sure patient comes to hospital with someone capable of taking him or her home; if not, make sure patient gets into taxicab, or that patient kept under observation long enough for effects of medication to wear off; whenever medication given, obtain informed consent and document in chart Duty to third party: physician has duty to notify police if patient discloses that he or she plans to hurt somebody; discharge instructions must instruct patients with seizure disorder, lapse of consciousness, narcotic therapy, eye patch, or similarly impairing condition not to drive; be aware of state laws; to avoid liability, notify DMV of patient’s impairment STDs: 22-yr-old man treated for presumed Chlamydia (culture negative); wife sues physician 2 yr later because she is infertile and alleges infertility secondary to infection; she claims no one told her she needed to be treated Approach: no report to Department of Public Health required in this case because culture negative; respect patient’s confidentiality but must tell him to inform sex partner(s); report positive cultures to Department of Public Health Difficult patients Patient with acute myocardial infarction (MI) leaving against medical advice: give patient medication but tell him or her medication no substitute for being admitted to hospital; let patient know he or she welcome to return at any time; most important to make sure patient competent, ie, has capacity to understand relevant information, consequences of various options, and communicate information about that choice (“oriented times 4” not enough); document that physician determined patient able to understand relevant information and could respond appropriately to questions; be persuasive and chart attempts to get patient to stay, including telling patient about possibility of death or serious injury and contacting consultants and/or family doctor Intoxicated man 50 yr of age with scalp laceration, slurred speech, and ataxia: patient announces tired of waiting and going to leave; attempts to convince him to stay unsuccessful; when physician explains patient may need to be restrained, he starts walking out; patient weighs 250 lb, 6 ft 4 in Discussion: call security guard or have police intervene; do not put self or staff in harm’s way; if patient competent, let patient leave Medical staff issues Consultant disagrees with emergency physician on patient’s need for admission: if by phone, ask consultant to come in and see patient; if consultant disagrees after evaluating patient and emergency physician feels strongly that consultant wrong, emergency physician has obligation to keep patient in emergency department (ED) Chain of command: new theory that has been applied to nurses and now being applied to physicians as well; emergency physician should consult colleague, head of department, chief of staff (move up chain of command) to protect patient; recommended that ED have bylaws that specify course of action in such situations (usually involves calling in third party to help make decision) Consultant coming in: man 25 yr of age with stab wound to abdomen, free air on x-ray, orthostatic vital signs; surgeon busy but calls in orders to have patient admitted to intensive care unit (ICU); emergency physician concerned patient should go directly to operating room (OR) but believes since all information has been given to surgeon, responsibility for patient has been transferred to surgeon Discussion: until patient seen and evaluated by another attending physician, emergency physician responsible for that patient, especially one going to wrong place in hospital

 

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Standard of Care

In professional negligence cases, a defendant physician may be liable for actions where there was a duty to provide care, a care standard was breached, and as a result of that breach, damage or injury was done to another.8 Each of these elements must be present and proven by a preponderance of evidence for a finding of medical liability.8 In addition, simply demonstrating that a mistake or an adverse event occurred is not sufficient for a finding of negligence.9 Thus, the outcome of medical malpractice cases depends on the definition of the relevant professional care standard or practice custom of the medical community. Clearly, in our scenario there was a duty to provide care, but was a care standard breached? (Annals EM NOv 2004)

res ipsa loquitur, meaning “the thing speaks for itself.”8 In this situation, a plaintiff makes a claim on the basis of circumstantial evidence, inferring that the adverse outcome could not have occurred in the absence of negligence on the part of the defendant. Negligence in cases employing res ipsa is generally apparent to the layperson, such as in the performance of a procedure on the wrong body part, and therefore an expert witness to establish a standard is not usually required. Despite the foregoing exceptions, the expert witness remains the most common way in which the standard of care is defined in medical-legal proceedings.

 

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Why do Doctors get Sued

No claims physicians spent longer, joked more (JAMA 1997;27(7):) Tone of voice most important factor. Higher dominance and lower concern/anxiety associated with suits. (Surgery 2002;132(1):5)

Analysis of relation between negligence and outcome of litigation in NY (NEJM 1996;335:26:1963)

 

Special Defenses to Malpractice Cases

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