Medical Malpractice


Article Author:
Michael Bono


Article Editor:
John Hipskind


Editors In Chief:
Bette Bogdan
Lori Kerley
Robin Geiger


Managing Editors:
Frank Smeeks
Scott Dulebohn
Erin Hughes
Pritesh Sheth
Mark Pellegrini
James Hughes
Richard Ciresi
Phillip Hynes


Updated:
10/27/2018 12:31:43 PM

Introduction

Doctors fear medical malpractice. Many clinicians will be sued for medical malpractice during their careers. There are many fallacies surrounding this topic. This article review some medical malpractice information.

Function

Functional Elements of a Lawsuit

A simple mistake or error in diagnosis or error during a procedure does not define medical malpractice. Four things must be proved to have a case of malpractice. These are causation, duty to the patient, negligence or breach of duty, and damages.

  • Causation asks the question: Did the act or omission cause the poor outcome? For instance, did the missed sepsis cause the patient’s death, or was the death caused by her history of myocardial infarction from her history of diabetes, hypertension, hyperlipidemia, and smoking?
  • Duty to the patient asks the question: Did the doctor have responsibility for the care of this patient? Did the call to the cardiologist at 3 o'clock in the morning constitute his duty to treat the patient in the emergency department?
  • Negligence or breach of duty: Was the clinician negligent in taking care of this patient?  In some states, the term used is “gross negligence." This does not mean the clinician acted perfectly, but instead, the term concerns the “standard of care” for the community. Standard of care is defined in terms of what care a reasonable physician in the community with similar training and experience would provide for the patient?
  • Damages refer to compensation for loss or injury, and in medical malpractice, this is usually is money paid to the patient or the family of the patient. The question in a medical malpractice case is: does the alleged malpractice act rise to the level where money should be paid to the patient? Sometimes, a patient wants an apology from the doctor.

Issues of Concern

Avoiding Lawsuits

There are several recurring themes in malpractice cases that doctors should always consider. These categories are patient care/diagnosis, referral, communication, documentation, physician skills, and protocols/guidelines.

Patient Care and Diagnosis

  1. Practice good medicine. Try to treat every patient as if it were your family member, even though this may be difficult with some patients. Make the patient feel that you care.
  2. See your patient. If a patient has a problem, see and touch the patient. If a surgeon operates on a patient, he needs to see and lays hands on the patient if there is a problem. If a hospitalist is caring for a patient on the floor, and the patient has a problem, do not only talk to the nurse about the patient, see and examine the patient. Many malpractice cases arise from the patient complaining of pain, fever, vomiting, dyspnea, diaphoresis, weakness, change in mental status, or bleeding, and the doctor does not see the patient for hours, if at all. Defending these physicians in court is difficult. It is easier to defend a physician who cares, empathizes, and interacts with their patients.
  3. Respond quickly to a medical emergency and document these times. This simple acts, response time to the emergency, the time the clinician began to care for the patient, and recording vital signs often are not documented during an emergency.
  4. Know the community standards and follow them. Do not cut corners under any circumstance. If a test is required, get it. The cost of an expensive test is cheap compared to the financial and emotional costs of a lawsuit.
  5. If the patient fails to respond to therapy, look at the patient again and treat with another agent, or refer the patient to a specialist. This is one of the most common threads we see in malpractice cases; if the therapy does not work, change it, or get some help.
  6. If you order a test, make sure you see the results and interpret those results. Do not depend on nurses, midlevel providers, or medical assistants to interpret tests you order. Look at the results, including all imaging, even if the radiologist reads it. If there is a question, call the radiologist or consultant about the test. Never allow a test to be entered into a chart or electronic medical record without seeing it.
  7. Post-operative fever is almost never viral. Many lawsuits included a postoperative fever that was attributed to a virus until the patient died from abscess and sepsis caused by the operation. Always find the source of a fever.
  8. Always think about the worst-case scenario. What is the worst thing this patient could have? Anchoring bias, or focusing on one diagnosis can lead to the wrong diagnosis. Keep an open mind, and consider the worst possible thing the patient could have, and rule it out with exam, tests, or referral.
  9. Team treatment of the patient needs a captain or someone who will gather all the data and be in charge of treating the patient. Multiple malpractice cases stem from no one directing the care of a complicated patient, particularly hospitalized patients. This is particularly a problem when a patient has subspecialty surgery and develops a medical problem after surgery.
  10. Never skip monitoring vital signs during procedures, particularly if the procedure takes place in the emergency department or on the hospital floor.
  11. Coumadin is a particular problem in many malpractice cases. If your patient is on coumadin, get the INR checked at a coumadin clinic, if at all possible.

Referrals

  1. Involve consultants if needed. Doctors can not know everything; hence, they should not be afraid to get help by consulting experts in another field. Document the discussions. There is a saying in the medical malpractice defense world, “the best doctors are the ones who call for help when they need it.”
  2. Explain to the consultant precisely what you want him to do for the patient and record the exchange.
  3. Often, it is worthwhile to get a fresh perspective on difficult cases. Let go of ego; it gets in the way of seeking outside advice.
  4. Midlevel providers (MLP) are an integral part of medicine, but they work under a physician’s license. The physician is responsible for the care delivered by the MLP, and if a lawsuit is filed, the plaintiff will focus on the supervising physician.

Communication

  1. Communicate well. Talk directly to not only your patients but also their families and other interested parties. Explain your thought process. Ask them if they have any questions. If this is done and documented, the physician often wins the lawsuit.
  2. Talk directly to consultants. Call them directly and discuss your concerns with the patient. Do not rely on the medical record or electronic medical record (EMR) to relay concern for the patient. Write in the chart that you had those discussions, and what you said. Many lawsuits arise from one excellent physician having no idea what the other consultants are doing on the case because they do not talk to each other. All the physicians involved get named in the lawsuit, and many cases can be avoided if the consultants had picked up the phone and talked to each other. This is a repeated theme in medical malpractice lawsuits.
  3. Weekends, holidays, and nights are a particularly treacherous time for physicians because of lack of communication. Many lawsuits are filed because the physician covering the weekends, holidays, or overnight failed to communicate. Turnover and checkout should be thorough and complete.

Documentation

  1. EMR is a ubiquitous form of documentation, and a practitioner should be well-educated about EMR. It has benefits and problems.
  2. Do your charts on time. This is critical. Plaintiff attorneys are asking for the timed history of when the chart was completed, and this is recorded on every EMR. A common question is: “So doctor, what did you eat for dinner two nights ago? Oh, you don’t remember? So how can you tell me and the jury that you remember this patient when you completed the chart 6 days after you saw the patient?"
  3. Do not “cut and paste” in the electronic health record. This reveals to the jury that a clinician did not care enough to type personal impressions of the patient, or they get the impression that the doctor did not see the patient at all. Clinicians must document what they see, in detail. Detailed work helps tremendously if something bad happens to the patient.
  4. While costly, medical scribes help with efficiency, documentation, and productivity.
  5. Templates and macros are not good. If you use them, edit them 100% of the time to meet your specific encounter with the patient. If your macro or template contradicts a previous note or entry, the jury will think the doctor is lying. Plaintiff attorneys can uncover templates and macros.
  6. If you use a macro for the differential diagnosis of the patient, make sure you have ruled out or explained every disease listed in the macro, or explain why you did not rule it out.
  7. Patient noncompliance with physician-recommended testing or treatment is an emerging problem. If the patient refuses a test, imaging, or treatment, document in detail that you discussed the potential consequences, including death, of noncompliance. Medication noncompliance is a particular issue.
  8. Pay attention to medication alerts in the EMR. We have seen multiple cases where a medication interaction/allergy alert has fired, and it was repeatedly ignored, resulting in a poor patient outcome.

Physician Skills/Continuing Medical Education (CME)

  1. Treat nurses and allied healthcare providers with respect. Many malpractices cases have been won or lost based on the statements of nurses and other providers. Support is vital.
  2. Keep up with medical education and skills in your field through CME or CEUs. Do not let board certification lapse. The first thing a plaintiff attorney asks about is schooling, training, and certification.
  3. Never use social media in patient care, particularly Facebook. This is considered an extension of the patient’s chart. The government vigorously pursues HIPAA (Health Insurance Portability and Accountability Act of 1996) violations.
  4. Be extremely careful about providing medical care to friends and family members. You must have an established medical relationship with the patient.
  5. Never change a medical record after the fact, particularly after an adverse event with a patient. If a pertinent fact comes to mind, clearly state the time you remembered the fact and enter it into the chart as a “late entry.”

Protocols/Guidelines

Protocols and guidelines help because they are approved by large numbers of doctors from different fields. Explain when you chose not to use the protocol or guideline. It is fine to deviate from established protocols; however always explain the medical reason for doing so.

Clinical Significance

Reports indicate that medical malpractice-related costs are almost $60 billion, or between 2% to 3% of annual healthcare spending. This total does not include all the medical price incurred from unwarranted tests and treatments to avoid lawsuits.

Often, there are situations when a malpractice claim is necessary. The reasons might be beyond the clinician's control; nevertheless, most malpractice cases arise from events that are preventable. People commonly believe, that all malpractice cases stem from gross errors, yet, in truth many times mistakes are simple. A clinician-patient relationship should be founded on understanding a situation and managing details that can be controlled to avoid complications from unexpected events.


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Medical Malpractice - Questions

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Which is related to the Sua Sponte Complaint?



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A scrub nurse is unfamiliar with a new set of surgical equipment to be used in the next scheduled operation. The nurse should do which of the following?



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Which of the following is not a component of malpractice?



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Is it malpractice if an asymptomatic patient on diuretics presents with a low potassium level and has not had recent potassium levels checked?



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A plaintiff's attorney needs to have which three of the following elements in a lawsuit alleging medical malpractice?



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Which of the following increases the likelihood of a medical malpractice lawsuit?



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An occupational therapist (OT) is self-employed and has contracts with several nursing homes. Who must purchase liability and malpractice insurance?



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Select the choice that is true of punitive damages:



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Punitive damages are:



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What is it called when a practitioner performs a procedure outside of his or her scope of practice and a negative result occurs?



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Which of the following is true of malpractice?



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An intoxicated patient was brought in by fellow drinkers after they noted he was not acting normally. He now "is better" and wants to leave with no CT scan of his head be performed. Which one of the following describes the essential elements to discuss and document should a patient wish to leave against medical advice?



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Why are neurologic cases now responsible for higher payouts than cardiac cases in medical malpractice litigation?



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Medical Malpractice - References

References

The role of private counsel in medical malpractice cases., Knoll AM,, Medical economics, 2016 Jun 10     [PubMed]
Physician Assistant and Nurse Practitioner Malpractice Trends., Brock DM,Nicholson JG,Hooker RS,, Medical care research and review : MCRR, 2016 Jul 25     [PubMed]
The question of disclosing medical malpractice insurance., Rose RV,, Medical economics, 2016 Mar 25     [PubMed]
You've been served with a subpoena: Now what?, Hinrichs C,Klander J,, Minnesota medicine, 2016 May-Jun     [PubMed]
Interpreting risk as evidence of causality: lessons learned from a legal case to determine medical malpractice., Mercuri M,Baigrie BS,, Journal of evaluation in clinical practice, 2016 Aug     [PubMed]
THE VERDICT IS IN: SURVIVING A MEDICAL MALPRACTICE TRIAL., Canady MR,, Physician leadership journal, 2016 May-Jun     [PubMed]
Are Physicians Really That Unethical?, Chambers DW,, Journal of the California Dental Association, 2016 Apr     [PubMed]
What You Don't Know About Your Doctor Could Hurt You., Peachman RR,, Consumer reports, 2016 May     [PubMed]
Defensive Medicine in U.S. Spine Neurosurgery., Din RS,Yan SC,Cote DJ,Acosta MA,Smith TR,, Spine, 2016 May 11     [PubMed]
When is an Expert Truly an Expert?, Heniff M,, Academic emergency medicine : official journal of the Society for Academic Emergency Medicine, 2016 Apr 30     [PubMed]
Medical Malpractice and Tort Reform., Berry MD,Polking E,, Issue brief (Health Policy Tracking Service), 2015 Dec 28     [PubMed]

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