The most common cause for suing an internist, according to my malpractice insurance company, is "failure to diagnose", followed by "failure to make a timely referral". After reading most of what this company had to say, discussing events with Risk Management, and many talks with those of my patients and friends who are tort attorneys, I have developed a list of do's and dont's for practicing physicians who wish to minimize their risk of being sued. This list will probably not lead to better or more efficient or cheaper patient care, but it will reduce the malpractice exposure of any doctor who follows my recommendations to the letter. I have also thru Lexis and other search engines, verified that there is at least one malpractice case that was triggered, in part, by the physician's failure to follow one of these rules:
1) At EVERY visit, ask the patient if he/she is suicidal, or has suicidal thoughts.
2) Every time you prescribe any drug that acts on the central nervous system (sleeping pills, tranquilizers, anti-depressants, etc.) caution the patient not to drive or operate heavy machinery for 24 hours after taking the medicine.
3) If any patient refuses a suggested test: mammogram, pap smear, stool for blood, fire that patient from your practice immediately. Juries have held that if the patient dies because of a refused test, you probably didn't word your advice strongly enough. The same holds true for blood tests.
4) Never give any advice over the phone. It is basically malpractice and also a violation of most state medical laws to "prescribe", i.e. give any medical advice without examining the patient. Insist that the patient come in to see you right away, or have the patient call 911 for an ambulance to go to the ER. I know some doctors who will call 911 if the patient refuses to.
5) Whatever the patient's problem, after you suggest a diagnosis and treatment, have the patient see a specialist in the field of the affected organ (cardiology for hypertension, GI for abdominal pain, neurology for dizziness) and tell the patient you can't continue as the personal physician unless a specialist is seen.
6) For any abnormal blood tests, again refer at once to a specialist.
7) If the patient, or the patient's family suggests any test; cardiac echo, brain MRI, chest CT scan, agree at once, order the test, and again refer to the appropriate specialist.
8) Do a stress-echo and stress-thallium and cardiology referral for any pain above the waist, an abdominal and pelvic CT scan with contrast followed by an MRI and a referral to a GI doctor and a urologist for any pain below the waist, a Chest CT scan with contrast for any cough and for any smoker with a referral to a pulmonologist and a total body bone scan for any back or hip pain, followed by referral to an orthopedist. If CT scan shows nothing, do an MRI, followed by a MRA. If headache or dizziness, head CT with contrast, MRI with gadolinium, and neuro consult. This may not be cost-efficient, but a malpractice jury never cares about that.
9) "When in doubt, refer it out".
Of course I never practiced medicine following the above legalistic "rules", but every doctor has to consider the risks of not following those rules every time there is patient contact. And in America, if something "bad" happens to a patient, it must be someone's fault. The doctor no longer has to prove he/she did nothing wrong, but rather than he/she did everything that was "right".
I suspect that there would be fewer malpractice suits if workmen's compensation laws applied: no contingency fees for lawyers, and a pre-set schedule of payments for partial or permament disabilities up to and including death. Don't forget the Texas jury that bankrupted Dow Chemical, because they believed "as a matter of fact': that silicone leaking from breast implants caused a lupus-like syndrome. Unfortunately Dow went bankrupt from the class-action suit. Two years later a careful study in the New England Journal of Medicine showed that there was absolutely no correlation, and certainly no evidence of cause-and-effect, but Dow remained in bankruptcy court, and none of the plaintiffs or lawyers had to return any of the money.
What I am really saying is that with the best doctors, good medicine results from a combination of skills, intuition, and art. When I walk into an ER hospital room, I often think to myself: "This patient is sick and needs a hospital admission". Then I have to invent a diagnosis, because the insurance computers don't pay for an admission diagnosis of "looks sick", which is an absurdity:just as all you mothers out there know when your child is sick, I can see when my patient is sick. Sometimes I put down 999.90 "unknown disease", because (a) we all have at least one of those, and (b) it drives the computers wild when they try to calculate a LOS., or look for guidelines.
Showing posts with label Malpractice. Show all posts
Showing posts with label Malpractice. Show all posts
Tuesday, March 22, 2011
Friday, October 22, 2010
Medical Malpractice
The topic of medical malpractice and its cost in both premiums and extra medical tests has recently been discussed in various places, including the Op-Ed pages of the NY Times, but usually by non-doctors. As a practicing family MD (internist) who has been sued 5 times, (once as ward attending, once as hospital medical consultant, and three times for office visits) and who has had all three cases dismissed with prejudice (i.e. no trial, and no payment), let me describe to you non-doctors and non-sued doctors what is wrong with the system.
First, being sued does not make a doctor a better doctor. We improve through experience and studying, and not making the same mistake twice. But the ever-present threat of malpractice makes us more careful, in that most doctors ask themselves before any medical action: how will this look to 12 jurymen who are not doctors? And if a scenario similar to that which we were sued for ever re-occurs, even if we were dismissed, we make sure the same procedure is never followed, because who wants to be sued? An example is the fact that although the Virgin Islands has a Good Samaritan law for emergency treatment by physicians, a physician was sued for doing dockside CPR on a patient who eventually died. His case of course was dismissed because of the law, but the existence of the law did NOT protect him from being sued. He told the newspapers he will never offer emergency medical assistance to a stranger again, because he doesn't want to be sued.
As an example, I had a female patient with Hodgkin's disease, who was cured. For years, her gynecologist and I both urged her to get a colonoscopy, because people with one cancer are at higher risk for a second. There were seven years documented in both our charts of her refusal to get a colonoscopy, and she even refused to check annual stools for blood. When she died from metastatic colon cancer, her husband sued both me and the gynecologist for failure to diagnose the cancer. Again, this took a lot of time away from us. Both our cases were dismissed with prejudice. But the result is that I "fire" (i.e. discharge from my practice) any patient who refuses to do an annual stool for blood or a colonoscopy every 5 years, because again, who wants to be sued even if you win the case?
So now in addition to asking myself "what can the patient have that can damage or kill him/her if I do not diagnose it?" I also ask myself "What test can I be sued for not doing?". You see, a doctor is never sued for doing a test, but only for not doing it. So if a patient or spouse or relative asks for any test, I always say yes, which I never used to do, but that is what the system wants me to do. And it does no good to follow the "disease guidelines", because if you have a patient with 5 diseases (high blood pressure, GI reflux, heart failure, osteoporosis, and asthma) then some of the guidelines will conflict with others. In addition, the guidelines are not uniform: the USPHS, AMA, American Urological Association, American Cancer Association, and American College of Physicians, have widely differing guidelines on using the PSA test for prostate cancer, and even if it should be used at all.
I think it would reduce costs tremendously if the malpractice cases were taken out of the tort-contingency fee system, and put instead into the no-fault system, as is auto insurance in the State of New Jersey, where doctor's and lawyer's fees are set by the workmen's compensation fee schedule.
We also cannot practice medicine and keep notes as the lawyers would have us do, in part because we cannot bill for telephone time and making notes. We could certainly sharply reduce malpractice suits by telling every patient to either come into the office or go to the ER, and never renew any medicine or give any advice over the phone, because we can be sued for telephone advice. I also once flabbergasted a lawyer at a deposition; when he said "If you haven't written it down, you haven't done it", I answered "And what makes you think that if I did write it down I did do it?". For instance we all warn patients on sleeping pills to be careful when driving, but none of us forbid it. I know one doctor who photocopies the PDR warnings of every drug he prescribes, and gives one copy to the patient and puts the other in the chart.
Some results of the threat of malpractice: in at least two counties near Miami Fla., no neurosurgeon will cover the ER for automobile accidents; virtually no OB's teach or do forceps delivery, e.g. for a transverse lie, but proceed immediately to a C-section, and in 2 counties in Northern West Virginia there are no pediatricians, because they all moved northward across the river to a state with lower malpractice premiums. I was taught to tap the chest ("thoracentesis). In about 1% of the cases, in the best hands, there is a partial collapse of the lung (pneumothorax). So now all internists have pulmonologists or chest surgeons do it, because they do it more frequently, and therefore can defend against the incidence of pneumothorax more easily (and of course the chest surgeon charges more).
So now the doctor's mantra is not to avoid error, but to avoid being sued. This is not synonomous with practicing the best medicine. I even know some doctors who refuse to treat any lawyers or their families at all, just as many landlords in NYC refuse to rent to lawyers.
Again, every doctor wants to take the best possible care of his patient, but if 1/2500 infants is born with a birth defect, and 5% of aortic aneurysm repair patients die, and if 1% of hip replacements get infected, the doctor seems to get sued for every bad result. Although in theory the plaintiff has to show the doctor did something wrong, in practice the doctor has to show that he did everything right, and if he/she did, why was there a bad result? In American jurisprudience, if anyone has a bad result in anything, it is someone's fault (unless, of course you lose a lawsuit, and then it is never the lawyer's fault).
One final note: In NY State, they started keeping a record of the death rate for open heart surgeons (and later, their hospitals). The immediate result, as you might expect, is that cardiac surgeons took on fewer riskier cases where the patient has an estimated less than 10% chance of survival, no matter how the family pleads, because he doesn't want his death rate to go up. Several years ago there was a piteous Op-Ed piece about this in the NY Times, by a columnist who said it took him 10 days to find a cardiac surgeon willing to risk operating on his mother, and the surgery was not done at a major hospital teaching center.
I guess I should close with a repeat of a previous story. About 10 years ago, a California woman refused a pap smear for several years in a row, and her refusal was well-documented in the chart. When she died from cervical cancer, the husband sued the gynecologist. He convinced the jury that if the doctor had warned the patient properly, then any prudent patient would have agreed to the pap smear and found the cervical cancer. The jury agreed (!), and found against the GYN who now, of course, fires from his practice any woman who refuses an annual pap test or mammogram.
First, being sued does not make a doctor a better doctor. We improve through experience and studying, and not making the same mistake twice. But the ever-present threat of malpractice makes us more careful, in that most doctors ask themselves before any medical action: how will this look to 12 jurymen who are not doctors? And if a scenario similar to that which we were sued for ever re-occurs, even if we were dismissed, we make sure the same procedure is never followed, because who wants to be sued? An example is the fact that although the Virgin Islands has a Good Samaritan law for emergency treatment by physicians, a physician was sued for doing dockside CPR on a patient who eventually died. His case of course was dismissed because of the law, but the existence of the law did NOT protect him from being sued. He told the newspapers he will never offer emergency medical assistance to a stranger again, because he doesn't want to be sued.
As an example, I had a female patient with Hodgkin's disease, who was cured. For years, her gynecologist and I both urged her to get a colonoscopy, because people with one cancer are at higher risk for a second. There were seven years documented in both our charts of her refusal to get a colonoscopy, and she even refused to check annual stools for blood. When she died from metastatic colon cancer, her husband sued both me and the gynecologist for failure to diagnose the cancer. Again, this took a lot of time away from us. Both our cases were dismissed with prejudice. But the result is that I "fire" (i.e. discharge from my practice) any patient who refuses to do an annual stool for blood or a colonoscopy every 5 years, because again, who wants to be sued even if you win the case?
So now in addition to asking myself "what can the patient have that can damage or kill him/her if I do not diagnose it?" I also ask myself "What test can I be sued for not doing?". You see, a doctor is never sued for doing a test, but only for not doing it. So if a patient or spouse or relative asks for any test, I always say yes, which I never used to do, but that is what the system wants me to do. And it does no good to follow the "disease guidelines", because if you have a patient with 5 diseases (high blood pressure, GI reflux, heart failure, osteoporosis, and asthma) then some of the guidelines will conflict with others. In addition, the guidelines are not uniform: the USPHS, AMA, American Urological Association, American Cancer Association, and American College of Physicians, have widely differing guidelines on using the PSA test for prostate cancer, and even if it should be used at all.
I think it would reduce costs tremendously if the malpractice cases were taken out of the tort-contingency fee system, and put instead into the no-fault system, as is auto insurance in the State of New Jersey, where doctor's and lawyer's fees are set by the workmen's compensation fee schedule.
We also cannot practice medicine and keep notes as the lawyers would have us do, in part because we cannot bill for telephone time and making notes. We could certainly sharply reduce malpractice suits by telling every patient to either come into the office or go to the ER, and never renew any medicine or give any advice over the phone, because we can be sued for telephone advice. I also once flabbergasted a lawyer at a deposition; when he said "If you haven't written it down, you haven't done it", I answered "And what makes you think that if I did write it down I did do it?". For instance we all warn patients on sleeping pills to be careful when driving, but none of us forbid it. I know one doctor who photocopies the PDR warnings of every drug he prescribes, and gives one copy to the patient and puts the other in the chart.
Some results of the threat of malpractice: in at least two counties near Miami Fla., no neurosurgeon will cover the ER for automobile accidents; virtually no OB's teach or do forceps delivery, e.g. for a transverse lie, but proceed immediately to a C-section, and in 2 counties in Northern West Virginia there are no pediatricians, because they all moved northward across the river to a state with lower malpractice premiums. I was taught to tap the chest ("thoracentesis). In about 1% of the cases, in the best hands, there is a partial collapse of the lung (pneumothorax). So now all internists have pulmonologists or chest surgeons do it, because they do it more frequently, and therefore can defend against the incidence of pneumothorax more easily (and of course the chest surgeon charges more).
So now the doctor's mantra is not to avoid error, but to avoid being sued. This is not synonomous with practicing the best medicine. I even know some doctors who refuse to treat any lawyers or their families at all, just as many landlords in NYC refuse to rent to lawyers.
Again, every doctor wants to take the best possible care of his patient, but if 1/2500 infants is born with a birth defect, and 5% of aortic aneurysm repair patients die, and if 1% of hip replacements get infected, the doctor seems to get sued for every bad result. Although in theory the plaintiff has to show the doctor did something wrong, in practice the doctor has to show that he did everything right, and if he/she did, why was there a bad result? In American jurisprudience, if anyone has a bad result in anything, it is someone's fault (unless, of course you lose a lawsuit, and then it is never the lawyer's fault).
One final note: In NY State, they started keeping a record of the death rate for open heart surgeons (and later, their hospitals). The immediate result, as you might expect, is that cardiac surgeons took on fewer riskier cases where the patient has an estimated less than 10% chance of survival, no matter how the family pleads, because he doesn't want his death rate to go up. Several years ago there was a piteous Op-Ed piece about this in the NY Times, by a columnist who said it took him 10 days to find a cardiac surgeon willing to risk operating on his mother, and the surgery was not done at a major hospital teaching center.
I guess I should close with a repeat of a previous story. About 10 years ago, a California woman refused a pap smear for several years in a row, and her refusal was well-documented in the chart. When she died from cervical cancer, the husband sued the gynecologist. He convinced the jury that if the doctor had warned the patient properly, then any prudent patient would have agreed to the pap smear and found the cervical cancer. The jury agreed (!), and found against the GYN who now, of course, fires from his practice any woman who refuses an annual pap test or mammogram.
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