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Tag Archives: Medical-Legal

Strict Liability in Medicine

In law there is a doctrine called strict liability. Strict liability means that no matter what you do to protect someone from an injury, if the person suffers an injury, you are liable for the consequences. You could have taken every possible precaution. Doesn’t matter. Injury = liability. Usually strict liability is reserved for inherently dangerous activities, such as raising pet alligators or demolition. You want to blow things up? You better make darn sure that no one could possibly get hurt. Strict liability also applies to manufacturers who create products for human use. If someone gets harmed using the products, the manufacturer is liable for the injuries. Otherwise, manufacturers would feel comfortable putting potentially dangerous products on the market. Now some insurance companies and our own federal government want to impose strict liability on hospitals. I started thinking about this the other day when we had a rash of patients who came in with injuries after slipping and falling. According to Medicare and to a growing number of insurers, falls are one of the growing list of “never events” that are not worthy of reimbursement. For example, see this January 7 article in American Medical News. Here are a few more articles about insurers refusing to pay for the never events: WSJ Article — Insurers Stop Paying for Care Linked to Errors AM News — No Pay for “Never Event” Errors Becoming Standard Group Calls on Hospitals to Waive Payments for “Never Events” Don’t miss Happy Hospitalist’s “fairy dust” post about “never events,” either. The National Quality Forum has identified 28 medical errors as “never events.” In other words, these 28 events should “never” happen. Some of them I agree with. For example, leaving an object in a patient after surgery should probably never happen. Operating on the wrong body part or performing the wrong surgery on the wrong patient should probably never happen. But the list starts to get a little hazy the more you read it. According to the NQF, patients should never die or have a “serious disability” associated with the use of contaminated drugs, devices, or biologics. First, notice how the hospitals are being put on the hook for products that the manufacturers provide to them. According to the NQF, if hospitals use a product in good faith and there is a “bad outcome” because of contamination of that product, the hospital doesn’t get paid. No matter what. Flu vaccine wasn’t packaged appropriately and someone gets sick from it? Doesn’t matter, hospital, you’re not getting paid to take care of the consequences. You are completely liable for the damages. Applying this concept to the everyday world would mean that … contamination should never happen. If my kid pukes from spoiled milk in the refrigerator, the milk manufacturer should have to pay for all the medical treatment necessary to make my kid feel better. According to the NQF, patients should never die or have a serious disability if a device is “misused” or “malfunctions.” If a poorly designed (but FDA approved) device is used in a hospital and the device malfunctions, the manufacturer who made the device bears no responsibility for the patient’s care. It only matters where the injury occurs. Because the device was used in a hospital and the injury occurred in the hospital, the hospital should have to pay for all of the care related to the malfunction. Makes a lot of sense. Applying this concept to the everyday world would mean that … if the turn signal in my car malfunctions, I get into an accident, and I hurt my back, the ...

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Drug Seekers Suck

This morning as I was leaving my shift, one of the local cops mentioned that they are having a real problem with Vicodin sales and use … in the high school. Kids strung out during classes. Must be a great learning experience. Where do you think these teenagers are getting their stash? Then there’s this article about a doctor who was sued for giving pain medications to a patient and not sufficiently warning the patient about its possible effects upon driving. (Hat Tip to Kevin, MD) Oral arguments and the opinion of the court are at this link. Keep the above in mind as you read the following which happened a few days ago. A lady with a previous history of chronic neck and back pain now comes in with frontal headaches for the past month. Of course, her pain is a 10 on a 1-10 scale. She gets dizzy at times when she stands. Sometimes she gets nauseous. She says that she has vomited twice in the past 3 days. She used to take Vicodin for her back and neck pain, but she’s out of them now. I look through her old charts. She seems to like Dilaudid and Vicodin. It’s a busy shift, so she had to wait for a couple of hours. When I walk in the room, she’s laying on the bed with her arms folded. She seems upset with the wait, but she’s playing the “nice” card, I can just tell. She’s sizing me up from in between those fingers over her eyes. Very polite. Says “thank you.” Compliments me on being so nice even though we’re so busy. I engage in some small talk with her and she actually is a nice lady. The little voice in back of my head is literally kicking me in the mastoid right now. “Hey! WhiteCoat! Don’t be a sucker. She may be nice, but remember her history! Being overly “nice” is page 2 of the drug seeker’s handbook!” Since her headaches are a “new” complaint, I examine her from head to toe. No fever. No sinus pressure. No temporal arteritis. Fundi normal. No photophobia. No meningeal signs. No abdominal problems. No focal neurologic deficits. Oh, by the way, she still has that chronic pain in her back. Can’t find anything abnormal on her exam other than her “10 out of 10” pain. I don’t care how nice she is, she isn’t getting Dilaudid. We give her some Phenergan for her nausea and some Imitrex for her headache. Her headache improves to a 5 out of 10. “By the way, doctor, my head still hurts. Could you please give me something else for pain?” “Absolutely,” I tell her. “But it isn’t going to start with the letter ‘D,'” I think to myself. We give her some Toradol. Her pain is down to a 2 of 10. “See, lady?” I think to myself, “you don’t need narcotics to get rid of your pain.” When we tell her that we’re going to discharge her, she is actually grateful. She thanks everyone for being so nice. “Kill ’em with kindness.” That’s page 3 in the drug seeker’s handbook. Well it worked. I sent her home with some Imitrex, Phenergan, and a couple of days worth of narcotics. The little voice in my head pulled the otoscope off of the holder and whacked me in the back of the neck with it. What a sucker I am. That’s not the end of the story, though. Two days later she’s back. Of course there’s another doc working that day. Divide and conquer — ...

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What Would It Hurt?

I’m going to soften my position on one of my previous posts about a study on CT radiation (original article here) after hearing a story about one of my colleagues who was sued. He seemed to have managed the patient appropriately given her complaints, but missed an abdominal aneurysm in the patient and the patient ended up dying. During the trial, the plaintiff’s attorney asked him “What would it hurt to just have gotten the CT scan?” The doc wasn’t prepared for that question and didn’t know what to say, so he stuttered, then responded “I don’t know. Probably nothing.” The plaintiff’s attorney kept harping on that fact. “Getting the test wouldn’t have hurt anything, the doc chose not to get it, and now the patient is dead.” Eventually the jury reportedly awarded the plaintiffs a large judgment. What would getting the test hurt? Here are a few things it would hurt off the top of my head: Performing needless tests hurts the economy, wasting countless dollars because doctors are afraid that the one needle in the haystack might end their careers or wipe out their life savings. But we can’t argue economics at a malpractice trial and plaintiff attorneys know that. Getting that CYA (Cover Your Ass) test affects the ability of states to pay for basic health care for patients who cannot afford it. A lot of poor people with health problems can’t get into the system so that the state can fund the CYA tests doctors order on the patients already in the system. Again, can’t argue this one at a trial. Ordering a test just because it “wouldn’t hurt anything” is not the way that medicine is practiced (but it sure sounds good in front of a jury). If there is no clinical indication for a test, there is no medical literature whatsoever stating that a test should be performed just for the sake of doing the test. So ordering a test that is not clinically indicated “hurts” the practice of medicine. Now docs can respond to such a loaded question by citing the study about the effects of CT radiation. What would getting a CT scan hurt? The additive effects of the radiation can hurt the patient — it can give the patient cancer. I still don’t like the study’s statement that “doctors order too many CT scans.” But for the doctors who try to be conscientious in the radiologic tests that they order, there is a silver lining to this study that clinicians can use in their defense. Didn’t think of that initially. Thanks for that one, guys.

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At The Radiologist's Mercy 2

For all those who mock the ED physicians as nothing more than those licensed to order CT scans on everything that walks through the door, here’s something for you to chew on: A patient was at one of the local drinking establishments when he got into an argument with two less intoxicated gentlemen and had the smackdown put upon him. He came in complaining of pain in his jaw and pain in his neck. He got sent for x-rays of his jaw and neck. No fractures were seen, but the following are snippets of the reports that were returned from the radiologist: Legally, what are the ED physicians now supposed to do? If we don’t perform the CT scans and there is a fracture present, the radiology reports can be thrown in our faces as “proof” that we were negligent for not doing the scans. After all, if we ordered an x-ray to rule out a fracture, our suspicion for a fracture must have been “high,” right? If we perform the CT scans and they are negative for fracture, non-clinicians publish studies that ED physicians are “unnecessarily” running up the cost of medical care and are causing cancer with all of the excess radiation. Oh, and if we perform the CT scans and they are positive for a fracture, everyone asks the ED physician why he didn’t just order the CT scan in the first place. Exactly what are we are supposed to do in this scenario?

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At The Radiologist's Mercy

This post may seem like I have it in for radiologists. I don’t. The radiologists at our hospital are all top-notch. Just blowing off some steam and showing how we can sometimes be put at the mercy of another doctor’s statements. What a night. An elderly patient comes in after falling in the bathroom and hitting her head and face on the bathtub. She has a nice shiner on her left eye and hasn’t been acting quite right since it happened according to the family members. We subject her to various forms of ionizing radiation – probably the equivalent of being at “ground zero” – and find that her neck is OK and that she has no bleeding or other injury inside of her brain. After all of the lab tests are back, we still can’t really figure out why she her mental status is not quite right, so we admit her for observation. I make all the calls to the admitting physician, the consultant, the floor, write admitting orders, explain everything to the family, and make sure the patient is comfortable. Then the fun begins. About a half hour after the patient goes to the floor, we get a fax from the teleradiologist. The radiologist who read the initial scan made a mistake. The patient actually has a subdural hematoma. Great. There’s no neurosurgeon at our hospital, its the middle of the night, and I’m the only physician in the hospital. We have to transfer this patient to another hospital for a neurosurgery evaluation – right after she’d been admitted. We call the nurses upstairs to stop admitting the patient and get her ready for transfer. I call the admitting doc and let him know what’s going on. I call the family to try to smooth things over as to why we’re suddenly transferring their mom after they had all just gone home. I fill out all the paperwork for transfer (yes, I know that the admitting doc could have done this, but I chose to spend 10 minutes doing it myself rather than making him get out of bed, evaluate a patient he’d never seen, write an admitting note, then fill out the transfer forms himself). No ambulances were available for transfer, so the receiving hospital sends one of their ambulances and a crew to come get the patient. Fortunately, we have great nursing supervisors that helped organize a lot of the transfer process. I’m trying to catch up on the patients in the ED when we get another fax about an hour later. This fax says that the teleradiologist’s reading was incorrect and that the “subdural hematoma” was just a motion artifact. There really isn’t any bleeding. You have to be f’ing kidding me. Call the ambulance dispatch and have the ambulance crew turn around to go home. “I’m sorry they’re 3/4 of the way here. What am I supposed to do?” Call the family and tell them not to go to the other hospital – mom’s staying here. “Well, there was another mistake in the reading on her CT scan. No, ma’am, I was not the one who read it. I don’t appreciate being called an idiot – I’m trying to help. I’m very sorry for the confusion. I’ll put you through to the administrator on call. Hold on.” Tell the floor they don’t have that extra bed they thought they had. “I’m sorry you just tore up all the admission papers and have to re-write everything. She’s staying here.” Even I wasn’t cruel enough to wake the admitting doc up again. After all this, I ...

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