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A Medical Malpractice Attorney Tells It Like It Is

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Below is conservation between an Emergency Physician and a medical malpractice attorney. It was originally posted on Student Doctor Network by an anonymous poster that goes by the handle “TrumpetDoc.” It has been reprinted and edited with permission of the original author. If you have any thoughts or experience regarding medical malpractice, from either the plaintiff or defendant side, I’m sure you’ll find it quite interesting. ………………………………………………………………………………………………………………………………………………………………………………………………………………….. Recently I [TrumpetDoc] had a discussion with a local medical malpractice plaintiffs’ attorney at a social gathering. Since I have been hearing often from my former group’s lead MD/JD and influential leaders in Emergency Medicine, that increased medical testing never protected anybody, I asked his thoughts on the subject. His comment was, “That’s Bull—t! When there is a bad case or outcome, and I see an upstream doc that had the chance to make the diagnosis with a test or procedure, I smile every time. I can get an expert from any specialty to debunk a doc’s thought that his/her exam and thoughts are good enough these days. And if we go to trial, I have a pretty set script here. To the effect of ‘so Doctor, you just didn’t care enough about my client to order this test?’ Or ‘so my client was just a statistic, just a percentage to you?’… [Juries] love that stuff!” He went on to explain that the medical malpractice environment will be getting worse for us doctors and he was extremely bullish on the med-mal business in the coming years. He continued on, “You guys are being hung out to dry. So are hospitals. There is already starting to be a contraction on spending and ‘costs.’ This is just awesome for me. There will be a lot of bad discharges, refused admits, procedure delays, diagnoses delays, all in the name of ‘costs.’ Your societies and hospitals are masking this as evidence based practice, etc. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals…Testing is what makes diagnoses, saves people.” I rebutted by explaining that malpractice cases are best prevented and defended not by practicing “defensive medicine” but by documenting in the chart our thought process, differential diagnosis and rationale, using the concepts of clinical acumen, experience, and evidence and that our own experts could and would defend our actions. He responded with, “But that is in your world; people live in mine… juries live in mine,” with a smug smile and chest tapping. I had to restrain myself. He continued on, “If a patient is in the ER and wants to be admitted…you better just pray nothing happens in a reasonable time frame after if you discharge them against their wishes.” I asked about defensive medicine protecting from us suits and he said, “To a point, it does. Will you get sued? Sure. Will I be less inclined to take a case that had a complete workup? Yup. If you appear to me like you cared and did everything you could, you certainly more protected.” To him that equals ordering tests such as labs, CTs, and MRIs in the ED and admitting patients to avoid risk. He went on to say, “Nurses will hang you. EHRs [Electronic Health Records] are awesome! And nurses chart everything they freaking think of while in the ER with a patient. They are there to cover their butt, and often it is very helpful to me. It is so common that there are discrepancies in the medical record, and now they are so easy to find.” Regarding Choosing Wisely, he said, “This will do nothing to ...

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Should Refusing Medical Care Be A Crime?

Doctor threatens to call police on patient if she does not consent to immediate Caesarian section. The mother was a high-risk pregnancy (due to VBAC), was post-dates and had gestational diabetes. The fetus wasn’t in a good position to facilitate vaginal delivery, and an ultrasound showed the fetus in possible distress. The patient was sent to Tampa General hospital for immediate C-section, but refused to have the surgery done that day. She wanted the baby delivered on Friday, not Tuesday. So the obstetrician sent her an e-mail which stated, in part I am deeply concerned that you are contributing to a very high probability that your fetus will die or your child will incur brain damage if born alive. At this time, you must come in for delivery. I would hate to move to the most extreme option, which is having law enforcement pick you up at your home and bring you in, but you are leaving the providers of USF/TGH no choice The doctor was promptly contacted by the National Advocates for Pregnant Women, whose New York attorneys advised him (apparently applying their vast knowledge of Florida law to the case) that he was making “legally and ethically unjustifiable” threats and demanded he cease taking further action against the patient. The NAPW even put up a post about the incident on their web site. Hopefully, the attorneys at NAPW have licenses in Florida, otherwise some might consider them to be practicing law in Florida without a license – which I think might be illegal. Now the patient is having her baby delivered on Friday as she wanted. When I initially read this article, I was upset with the doctor. The more I thought about it, though, the fetus has as many rights as the mother does. If the mother was doing things to endanger the life of the fetus the day after it was born, a call to the police would be expected, not ridiculed. States mandate reporting of suspected child abuse and impose liability on providers if suspected abuse is not reported. In this case, it is questionable whether a failure to deliver a child that is possibly in distress would be considered “child abuse,” but usually if there is a suspicion, a report is mandated. I side with the doctor on this one. And I probably would have called the state child welfare agency on the woman just to cover myself. This case will get ugly real quick if there are complications during the pregnancy or if the child isn’t born healthy. If the baby is stillborn, should the mother be charged with a crime?

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Suing Doctors For Patient Addictions

Nevada Senator Tick Segerblom proposes bill that would allow patients addicted to prescription drugs to sue doctors for prescribing the addictive medications and manufacturers for creating the medications. Patients can already sue doctors for prescribing medications if they can prove that writing the prescriptions violated the standard of care and that they have suffered damages as a result. But Tick wants to take the concept a step further. If the patient sues a doctor and wins, the patient should receive payment for rehabilitation, possible punitive damages, and attorney’s fees. It doesn’t matter that “addiction” can be either physical or psychologic and that there is no reliable way to determine when addiction occurs. Tick’s bill doesn’t define addiction. It also doesn’t matter that people can get addicted to pretty much anything … alcohol, illegal drugs, porn, gambling, even collecting Cabbage Patch Kids. Tick’s bill only cares about those evil doctors. Beware internet service providers, you could be next on the list if your subscribers get addicted to the internet. But Tick has good reasons for proposing his bill. Since people lived without drugs before, Pharmacologist Tick doesn’t believe that drugs are the only way to treat pain now. That’s true. Patients in cancer pain could always try incantations and faith healing instead of popping pills. Or patients in pain could bust out some whiskey and a bunch of bullets to bite on … after they take anger management classes so they can purchase the bullets. Oops. That’s Florida. Sorry. Wrong state. Double oops. Alcohol could be addictive. Bad example. Besides, since children are allegedly taught from an early age to do whatever the doctor says, Neuropsychologist Tick says no one has the free choice whether or not to take addictive pain medicines. It’s not so much that, at least according to his Twitter feed, Tick seems just all … well … tickled … about seeing his proposal published in newspapers. The scary thing is that people like Tick Segerblom are elected to public office and may be able to regulate our lives. More comments at Overlawyered.com

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The Nurse Who Denied CPR

I’m in shock about the case where a nurse refused to give CPR to 87 year old Lorraine Bayless in a California senior living facility – a housing setup akin to an apartment complex. Ms. Bayless fell unconscious in the dining room of a senior living facility. Facility members called 911. Ms. Bayless wasn’t breathing and the 911 operator recommended that the facility member perform CPR. The person at the facility would not perform CPR. It took EMTs about 7 minutes to arrive on scene. Ms. Bayless later died from a “massive stroke.” The 7 minute call can be heard HERE in its entirety. A couple of other things made known in the case were that the senior living community did not have any trained medical staff. Remember – the facility was similar to an apartment house. In addition, Ms. Bayless had made known her intentions to “die naturally…without any kind of life-prolonging intervention.” According to the family, Ms. Bayless knew that there were no medical staff when she decided to live at the facility. So why am I in shock? Look at all the whacked out opinions that are being generated from this case. Some people demand criminal charges be filed against the people who wouldn’t help. One person recommends “Depraved Indifference Homicide” Another person notes that if a law says that “you cannot deliberately withhold medical care from a dying person” then ignorance of the law is no excuse for failing to act – applying that hypothetical to this case, of course. Bakersfield California police are looking into whether there was anything criminal and the county Aging and Adult Services Department is determining whether “elder abuse” may have taken place because of the incident. The thing is that if criminal charges were appropriate, then everyone in the dining room of the senior living facility who saw Ms. Bayless collapse would have to be thrown in jail. No one helped her. Let’s just charge everybody with a crime. California can’t pay its bills as it is, so it is unlikely that they will criminally charge a group of elderly patients requiring nursing care and then be required to provide continuing medical care to them. Maybe they’ll all get electronic monitoring bracelets and weekly visits via the wheelchair van to a parole officer, instead. Then the “experts” across the news stations pile on. Virginia Commonwealth professor of geriatrics Dr. Peter Boling stated that without advance directives, patients “wind up sometimes in a very painful and trying situation.” This quote seems to acknowledge that patients may receive unwanted CPR if  there is any question about a patient’s wishes. CBS legal analyst Jack Ford calls the actions “morally reprehensible” but also notes that our society has become much too litigious. Ah, but what about California’s Good Samaritan statute? It exempts people who provide emergency care from liability for civil damages, but it also contains exceptions. Providers have to act in “good faith”. It doesn’t apply to those who are grossly negligent. And it doesn’t apply if the provider is being compensated. Employees of the senior living facility are, by definition, being compensated. So a plaintiff’s attorney may have the ability to circumvent the protections afforded in the Good Samaritan statute just through the “compensation” angle. Other people argued that the 911 operator took all liability for the actions of the nurse. How does such a promise, which is essentially a verbal contract, absolve the nurse from liability when the nurse is the one performing the actions? If a lawsuit was filed, the nurse would still be named regardless of the 911 operator’s ...

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Who Should Sign Death Certificates?

I happened to read an article in the Columbus (Ohio) Dispatch where Ohio coroners are complaining because some doctors, including emergency physicians, are refusing to sign death certificates listing a patient’s cause of death. The coroners are concerned because they are being “burdened” with hundreds of extra cases every year that they must handle. And if other doctors don’t sign off on the cause of death, sometimes it takes two months for them to examine records, wait for test results, and make a final ruling on a patient’s death. The treating physicians reportedly use the excuses that they haven’t seen the patients in several months or they weren’t there when the person died. Some emergency physicians expressed concern about liability if the wrong cause of death was listed. The coroners used the article to try to add a guilt trip on doctors who won’t sign a death certificate by stating that the reluctant doctors aren’t inconveniencing the coroner, they’re inconveniencing a family. Baloney. If, according to the article, it takes coroners sometimes TWO MONTHS to determine a cause of death, then how can coroners reasonably expect other physicians to determine the cause of death on the spot? How can an emergency physician determine the cause of a patient’s death just by performing CPR on a patient for 20-30 minutes? As far as death certificates apply to emergency medicine, if a patient comes in and has a heart attack or has a bullet wound through their chest then the cause of death is rather clear and the death certificates shouldn’t be a problem for the coroners to complete. If the cause of death isn’t so clear, then why would the coroners want to rush the completion of the death certificate? Either way you argue the point, it doesn’t make sense. If the amount of time required to complete a death certificate is marginal, then it isn’t as much of a burden as the coroners are making it out to be. If the amount of time required to complete a death certificate is substantial, then is the time spent performing non-patient care tasks really the best use of an emergency physician’s limited time? In addition, improperly completed death certificates are a problem. In a recent article in American Medical News, one Pennsylvania coroner was quoted as saying that many physicians “don’t realize that what they put down has some real, long-term ramifications.” The article also notes that “filling out certificates inaccurately can have widespread consequences,” although in the latter case, the speaker was referring to underreporting of some diseases to federal agencies. Another vignette in the article noted how a murderer almost went free because the cause of a patient’s death was misclassified by a treating physician. I am aware of another well-publicized case in which a personal friend of mine was involved in a medical malpractice action where a coroner determined that a patient’s cause of death was “murder” without knowing all the facts of the case. Later, the coroner was involved in litigation over that determination and ultimately resigned her position due to this and other similar errors. Requiring that people other than coroners sign death certificates is just another example of medical mission creep and it needs to stop. It is the coroner’s job to determine the cause of a person’s death. Stop pushing that job off on other people.

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It Didn’t Feel Like A “Win”

By Birdstrike M.D.   My kid and I are outside in the front yard blowing bubbles, enjoying the blue skies and 70 degree weather when she says, “Cool Daddy! Look, there’s a police car coming down the street. Oh, cool! I think he’s coming to see us!” Uh, oh, I think to myself. Despite my kid’s excitement, I know that rarely does anything good come delivered by a policeman. My wife is inside, my one kid is with me and my other is inside, so they’re not coming to give me some tragic news. Or are they? My parents….my siblings….is everyone okay? Why is a sheriff pulling into my driveway? I exhale for a minute. Maybe it’s Jim, the officer that lives in the neighborhood, I think to myself. He’s probably just stopping by to chat or say, “Hi.” As the car rolls closer, squinting to look beyond the window glare I see that it’s not Jim. It’s an officer I’ve never seen before. Clearly none of us has done anything to get arrested…. “Daddy! I wanna go see inside the police car! Daddy, will he give us a ride? Ooh, ooh, can I see his gun? Cool!” says my kid, jumping up and down with excitement. “Let’s see what he wants,” I answer. The driver door opens. A huge officer gets out, in grey uniform, bulletproof vest bulging underneath, with black wrap-around sunglasses, and a toothpick in his mouth. “Are you Dr. Bird?” he asks, as serious as a heart attack. “Yes, sir,” I answer. “I got a present for ya,” he says, as he pulls a thick rolled up stack of paper from under his arm and hands it to me.  “Here’s your subpoena,” he says. “My what?” I stammer. “What’s this all about?” “You’re getting….” he starts before, “Daddy! Daddy! I wanna ride in the police car. I wanna see the lights go on! Yay!” says my little one. “…sued,” I finish the sentence for him. “Yes, sir. You and every other doctor in this county it seems like. I’ve got about a dozen more to go serve. These lawyers are unbelievable. (laugh) I happen to know this one will sue you for breathin’ and win, too. You know, the one on the back of the yellow pages? You ever run into any trouble, though, you call him. Trust me, he got me out of a jam one time,” he says with another grunt-laugh. “Wow. Thanks for that wonderful advice. You’ve really brightened my day,” I snark back at this guy, who apparently thinks it’s hilarious to be part-time process server and part-time comedian. “Oh, don’t take it personally. It’s just business,” he says chuckling, as he spits out the same old lie and cliché I’ve heard a thousand times from doctors who’ve been sued. “That’s great. Thanks. Anything else I can do for you today, officer?” I ask, dejected. “Oh, yeah, I’m gonna have to give you a ticket for parking your car on the street overnight….Just kidding!” he says, and give’s a snort-laugh. This guy’s unbelievable, I think to myself as I turn to walk away. “Don’t worry, Doc. You’ll win that case. That lawyer will sue a dead dog if he could get it to settle for a bone and a biscuit,” he says. “Uh, thanks for your…uh, support,” I say, shaking my head in disbelief. Yep, it happened. After about 30,000 lawsuit-free patient encounters I finally got hit with a lawsuit. I guess 29,999 out of 30,000 isn’t bad, I think to myself. What’s that, 99.99% accurate? Well, it’s still not perfect; still not ...

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Post Online, Get Investigated By State Medical Board

Earlier this month, a survey of state medical boards published in the Annals of Internal Medicine showed that many state medical boards were willing to investigate physicians for lack of online “professionalism.” The authors of this study created 10 vignettes regarding online physician behavior and then queried state medical boards regarding their likelihood of “investigating” physicians based upon the scenarios. Percentages of state medical boards that were “likely” or “very likely” to investigate a physicians for behaviors were as follows: Citing misleading information about clinical outcomes — 81% Using patient images without consent — 79% Misrepresenting credentials — 77% Inappropriately contacting patients — 77% Online posts depicting alcohol intoxication — 73% Violating patient confidentiality — 65% Using discriminatory speech — 60% Using derogatory speech toward patients — 46% Online posts depicting alcohol use without intoxication — 40% Providing clinical narratives without violation of confidentiality — 16% Think about the implication of some of these circumstances. It takes 4 years of college, 4 years of medical school, 2-6 years of residency, and hundreds of thousands of dollars in expenses in order to obtain a medical license. Based on this article, there is theoretically the potential for a medical board to take away 10-16 years of work because a physician makes a post about drinking alcohol or because a physician writes about a patient’s case — even without violating a patient’s confidentiality. Even if a license is not revoked, an investigation could be initiated based on vague and sometimes anonymous complaints about “discriminatory” or “derogatory” speech or citing “misleading” information. Such complaints would require that a physician retain legal counsel in order to proceed through a drawn-out investigation. The expenses involved in the investigation may not be covered by malpractice insurance. For those who have never had the experience of being “investigated” by a state medical board, the process do not have to follow the rules of court, may involve threats from investigators or pressure to immediately sign “confessions,” and it is not uncommon for investigations to quickly become witch hunts. Here are some of one lawyer’s experiences in dealing with Licensing Boards. Remember the issue with Amanda Trujillo, RN who was investigated by the Arizona State Nursing Board for informing a patient about her surgical options? That case turned into an 8 month inquiry into every complaint alleged against Amanda for the prior 3+ years at multiple hospitals in multiple states. The Nursing Board also reportedly informed her that they would further discipline her if she continued publishing their communications with her. A couple of things work in a physician’s favor if being investigated by a medical board. A medical license is usually considered “property”, which may allow a physician to pursue a due process claim if a medical board takes inappropriate actions against a physician’s license or does not follow proper procedure in pursuing those actions. This Washington Supreme Court case contains a very good discussion about the problems involved in actions taken against a physician’s license. Also, in many states, attorney’s fees are awarded for successful due process violation actions. Don’t be afraid to fight back against inappropriate state medical board claims. As Glenn Reynolds likes to say on Instapundit … punch back twice as hard.

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More Joys of Electronic Medical Records

Go up to your favorite emergency department staff member and ask them what they think of “twofers.” Depending on that person’s mood, chances are that you’ll get anything from a scowl to a punch in the gut in response. Two patients from the same family both needing emergent medical care at the exact same time? It still happens … car accidents, fires, maybe a stomach bug. But it can be frustrating. There’s a saying in emergency medicine that the likelihood of a true emergency is inversely proportional to the number of patients in the family registering to be seen. That being said, a “fivefer” will raise the hairs on the back of the neck of pretty much any emergency department personnel. When the complaint is that everyone in the family has a cough, three of the five family members smoke, and none of them got their flu shots … well … you get the picture. One of the frustrations with scenarios like this is the charting involved. The nurse and the doctor are literally stuck at the computer for 30 minutes each, both entering useless information about different patients over and over again – instead of taking care of other patients. The medical records won’t let you proceed without entering the information. Is there a fall risk? Is there a risk for tuberculosis? Does the patient smoke? Nurses have to enter this information even on infants to satisfy government regulations. Is there a risk of danger in the home? Is there evidence of abuse? When entering an order for IV fluid, if the patient has a sulfa allergy, doctors have to acknowledge that there is some potential interaction between saline and the patient’s allergy and describe why we would dare to give salt water to a patient with an allergy to sulfa. And on and on and on. So I tried something that sounded easy when I thought of it, but was technically quite difficult when I tried to actually do it. I tried to log the number of times I clicked on different check boxes and the number of different screens I had to navigate in order to document on and discharge/admit a patient. This is easier said than done. I never realized how quickly I am able to navigate a byzantine array of computer screens. After clicking on one button to order a medication, I found myself subconsciously moving the mouse to the area of the screen where the next “OK” button would pop up. I had to literally slow myself down to count the clicks and the screens. I’m sure I missed a few in the process. The number of data points in each aspect of a patient’s history is quite large. There are 144 data potential points to click on just for a patient’s physical exam. The screen to the right is what must be navigated for each and every patient’s history. Each line in the white fields is a data point that must potentially be either right- or left-clicked depending on whether it is positive or negative. I didn’t even bother counting up how many potential data points could be clicked upon, but it numbers in the several hundreds – depending on the presenting complaint. So I set out to log the clicks and screens. The first few times I tried, I wasn’t able to do it. Finally, when it wasn’t so busy, I made a conscious effort to stop on every screen and mark down clicks and screens. I use some basic templates, so the amount of clicking that I do is actually less ...

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