The Scope and Definition of Malpractice

The Scope and Definition of Malpractice - 16 a REDUCING...

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Unformatted text preview: 16 a REDUCING lITlGATION RISK CORREIA ‘ The scope and definition of malpractice n 1995 there were several dramatic cases involving malpractice that were highl publicized in the popular press. These inclu ed the death of Boston Globe health reporter Betsy Lehmann as a result of a medication dosing error at a prestigious institution, amputation of the wrong leg in a' Florida hospital, and the convic— tion of a New York nursing home physician on charges of criminal negligence arising from malv practice. These, and other sentinel events, were the v impetus for the Institute of Medicine Report, To Err Is Human. Based upon data from studies of New York, Colorado, and Utah hospitals, the rates of adverse events range from 2.9% to 3.7% of hospitalizations. Of these events, 6.6% to 13.6% resulted in the death of the patient. Extrapolating those figures to more than 33.6 million hospital admissions in 1997, as many as 44,000 to 98,000 deaths may be the result of medical errors. As a basis of comparison, there are 42,000 deaths from breast cancer and 16,500 deaths due to AIDS yearly. The financial loss due to adverse events is also considerable. The IOM re ort estimates that adverse events cost from 17 billion to $29 billion per year. Preventable adverse drug reac— tions occur in 2% of hospital admissions, increasing the cost of these admissions by approximately $4,700. IF WE WERE AN AIRLINE, NO ONE WOULD FLY WITH US Historically, medical institutions have used a retrospective approach to risk management. Adverse events are analyzed to determine the point of error, and a strategy is developed to avoid the error in the future. This generally involves the adoption of remedial actions, often calling for a more complex, less flexible system. This is followed by a quiescent period during which the locus of the system failure shifts, resulting in another adverse event—and the cycle repeats. When these signals appear on the radar screen, in addition to discussions with the patient, it is especially important to carefully CLEVELAND CLINIC JOURNAL OF MEDICfNE VOLUME 69 0 NLMBER‘ This approach was rejected by the aerospace industry more than 4 decades ago. Their ' approach has been to analyze each system for potential errors and develop safety redundan— cies. In the late 19505 the risk of an airplane crash was 1 in 2 million. Today it is 1 in 63 mil, lion. Compare this with the mortality rate due to adverse medical events. If we were an airline, no one would fly with us. LEGAL CRITERIA FOR MALPRACTICE Medical malpractice is a tort—a civil wron for which the plaintiff may seek redress throu the courts. Unlike Criminal proceedings, where the defendant must be guilty beyond a reason— able doubt, the burden of proof in civil litiga— tion is by a preponderance of the evidence— more likely than not. ' Although the langua e may vary somewhat from state to state, in or er to prove medical malpractice in court, four criteria must be met: 0 The physician must owe a duty to the patient. This is generally accepted to mean the existence of a physician'patient rela— tionship. There must be a deviation from the “stan» dard of care.” This is defined by statute— that which a reasonably well—qualified physician would do under the same or simi— lar circumstances. The patient must sustain an injury. A drug error without an adverse action is regret— table but is not malpractice. The actions of the physician must be the proximate cause of the patient’s injury. The statute of limitations is the period dur— ing which an action for medical malpractice can be initiated. It is determined by each state and there is variability between states. However, if a physician intentionally cone ceals the error or injury from a patient, the statute of limitations is extended to the point at which the patient knew, or reasonably should have known, that negligence occurred. document all patient interactions—not only office visits but telephone calls, hospital encounters, and other incidents—for example, _ANUARY 2002 nwenann. thinkirq 2L soladvemevem ' VERIDIA are ism nouon mesa mm W may have m 1 69". Won't“ firm may bi assets. 54 events n abnormal 9‘ 92mm. Mug, urrovasmhr an. minis. mum SSW! Mariam mm mm. eno- muslin: fem. sis (bruismg) alients and in sting placebo- id prolonged during minor 1 on platelet 'wnfsrmsd by no MERIDIA n of me mad- administered. recovery. 1!:th lesls, almmase n 1.6% 0! trolled vials use studs. " 22 Writ; we: limit 01 6% (ALT) ol abolrealerl men dinin- clear dosa- inhalants: Controlled ire: Physi- ry 01 drug 1 "ram 101 u a! ruler- nor). 'overdosc 2-year-old capsules [hospital- ry wilh no nale in a 101 sinu— illered no The llnrd an obese "’9 SUV rare ol with no dare to assures , sum mums be Indr- ’a The vn. qu, lL 19, NJ mm. 3.630: with office or hospital staff. Notes should be factual and nonjudgmental. In these areas we would do well to follow the example of our nursing colleagues, who are expert at describ— ing behavior in neutral language. They will chart that ‘fthe patient threw a bedpan across the room"—-—a simpledescription that conveys the flavor of the interaction. We, on the other hand, are more likely to write that the patient was “hostile” or “acting out”—which conveys our judgment or interpretation. Setting limits. When caring for an over— ly demanding or noncompliant patient, it may be necessary to set appropriate limits. If you are able to do so, the specifics should be documented, including how and why the limitations were set and how they were com— municated to the patient. Consultation. If you are unable to resolve issues that interfere with the physician—patient relationship, a “consultation” may be helpful. Discussions with a colleague may provide a fresh perspective on the relationship or Vali— date your perceptions. Hospital ombudsmen, if available, are uninvolved third parties who can do a remarkable job defusing tense situa- tions and clarifying options. In some instances, there is a “disconnect” between physician and patient that can’t be resolved. Under these cir— cumstances, it may be best to transfer care to - another physician. Maintaining patient confidentiality Patient confidentiality involves more than the protection of medical records. It extends to hospital cafeterias, elevators, social gatherings, and other public places. Medical misadven- tures should never be discussed in hospital ele— vators or any other public setting. The com— mon practice of physician teams meeting in the hospital cafeteria to discuss their patients should be abandoned. Anyone observing these “card rounds” can see nearby visitors straining to hear every word as if it was the next episode of ER. Likewise, “amusing" patient care anec— dotes are correctly viewed by patients and vis— itors as demeaning and disrespectful. H DOCUMENTATION Documentation can be tedious but is essential in both preventing and analyzing adverse events. Should litigation be filed, your docu— mentation is the only contemporaneous record of the events in question. The medical chart remains long after memory fades. The job isn’t finished until the paperwork is done. Preventing medication errors Medication errors are frequent (estimated at two errors per 100 hospital admissions) and often preventable. Every order should include the date, including the year, and the time. When Writing medication doses, trailing zeros should be avoided. It is all too easy to mistake 5.0 as 50. Leading zeros may prevent conver— sion of 0.25 to 25. _ To assure that your patient is receiving what you prescribed, check the medication administration record. This assures that, for example, your order for Peri—Colace wasn’t transcribed as Percocet. In the office, ask patients to bring their medication bottles to visits and check them against your medication list. This is particuv larly important if your patient is seeing more than one physician. You and your patient are at risk when you prescribe medication without identifying the other drugs the patient is tak— mg. Even if you think your handwriting is leg— ible, printing is less likely to be misinterpreted by a pharmacist, secretary, or nurse. The clar' ity of language is as important as the legibility of handwriting. To avoid errors, complicated orders and instructions should be reviewed with the nursing staff. Whenever possible, verbal orders should be avoided. Beware of transition points Points of transition in patient care from one setting to another and from one clinician to another present multiple opportunities for errors and omissions. Transition points include hospital admissions and discharges, emergency room visits, referrals to specialists, and transfer of care between clinicians. Whenever possible, the best communication is that which occurs directly between, the physicians with the patient included in the loop. Never assume that the absence of com’ munication from a consultant means that there is no new information. Good consul— rants communicate their findings to the refer— Mostplaintifis suebecausean Wham! experienoewas neverexplainerl REDUCING LITIGATION RISK CORREIA a ring physician, and good primary care physi— cians follow up on consultations. The transition from the inpatient admis— sion to the primary care office is a particular— 1y dangerous one. With increasing frequency, significant findings identified during a hospi- talization are worked up in the outpatient department. To avoid having patients “fall through the cracks,” the follow-up should be organized before the patient leaves the hospi— tal. Information regarding the abnormal find— ing and planned follow‘up should be commu— nicated directly to the outpatient physician by telephone, e—mail, or letter. The patient should leave the hospital with a written record of the scheduled follow—up appoint— ments. _ For less reliable patients with potentially life—threatening problems, it may be necessary to monitor follow—up and document your efforts to assure that follow—up with a regis« tered letter. It requires less time to send a let— ter than it does to give a deposition. The transition from the emergency department to the outpatient office is also potentially dangerous. Take note of patients who repeatedly present to emergency depart— ments with the same complaint. These are patients who should be contacted regarding follow-up if they don't schedule an appoint— merit themselves. Avoid chart wars It doesn’t help you or your patient to engage in a battle with another service or physician in the patient’s chart. It just leaves a paper trail of poor communication that may affect your patient and your ability to defend yourself, should that be necessary. Documenting that you have paged a consultant or another ser— vice multiple times without response simply demonstrates that you didn’t explore alterna— tives or find another way to meet your patient’s needs. In general, it does more harm to you and to the institution than it does to the consultant. Similarly, differences of opinion between physicians and services should be discussed and resolved. Disagreements memorialized in the hospital chart may be interpreted in a courtroom as something other than a collegial difference of opinion. CLEVELAND CLINIC JOURNAL OF MEDICINE Always read nursing notes Whether in the office or in the hospital, always read the nursing notes. These are often the first documents reviewed by a legal team. Generally, they are the most legible entries in the chart and provide a chronolog— ical record of events. It would be difficult to explain why, for example, a nurse charted that the patient was in pain while the physiv' cian charted that the patient was comfort— able and without complaints. When such CliS' crepancies occur, it is important to reconcile the difference if possible. Where there is a difference of opinion it is perfectly appropri— ate to say in your note, “Nursing notes reviewed; at the time of my exam the patient was not in pain.” Likewise, it is appropriate to ask nurses to corroborate your documentation if a patient refuses treatment. I WHAT TO DO AFTER AN ADVERSE EVENT Explain the event to patient or family Although often difficult, it is important to talk with the patient or family when an adverse event occurs. Explanations should be simple and honest even if an error was involved. Simply acknowledging that an adverse outcome has occurred may be enough to convey your continuing concern and interest in the patient. Learning about an adverse event from you is important in maintaining trust and supporting the rela— tionship. Documentation When an adverse event occurs, regardless of whether or not negligence or error played a role, you should notify the hospital legal department or your insurance carrier. Generally, you will be asked to write an objec— tive description of the events surrounding the adverse outcome. Your best recollections will be those recorded immediately after the incia dent. Once written, the document should be sent to your legal representative where it becomes “attorney work product,” a privileged document that is not available to the plaina tiff’s attorney. Above all, never alter a record VOLUME 69 - NUMBER I It takes less time to send a letter than to give a deposition JANUARY 2602 23 24 Dear Doctor: As editors, we’d like you to look into every issue, every page of the Cleveland Clinic Journal of Medicine. We’d like to know... 1 How many issues do you look into? Here's our goal: [FAN Cl Most ClFew El Half 2 How do you read the average issue? Here's our goat [B'Cover—tocover El Most articles [I Selected articles We put it in writing... please put it in writing for us. We want to hear from you. CLEVELAND CLINIC JOURNAL OF MEDICINE The Cleveland Clinic Foundation 9500 Euclid Avenue, NA32 Cleveland, Ohio 44i95 PHONE 216.444.2661 FAX216.444.9385 E-MAIL [email protected] ‘ $§§ . XKVQEC CLEVELAND CLINIC JOURNAL OF MEDICINE VOLUME 69 I NUMBER 1 —a or destroy a document or other potential evi. dence. Do not discuss with colleagues . The temptation to decompress by discussing adverse events with colleagues should be resisted except in the context of a designat- ed morbidity and mortality conference Should the adverse event result in litigation you will likely be asked to identify anyone with whom you have discussed the case Concealing such conversations may under- mine credibility and revealing them may provide information taken out of context. I I SUGGESTED READING Bates DW. Gawando AA. Errors in medicine: what have we learned? Ann lntem Med 2000; 132: 763—767. Beckman HB. Markakls KM, Suchman AL. Frankel RM. The doctor-patient relationship and malpractice: lessons from plaintiff depositions. Center for Human Interaction, 1989. Brennan TA. The institute of Medicine report on medical errors—could it do harm? N Engl J Med 2000; 342:1 123—1 125. Brennan TA, Leape LL, Laird NM, et al. incidence of adverse events and negligence in hospitalized patients: results of the Harvard Medical Practice Study l. N EnglJ Med 1991; 324:370—376. Goreman C. The disturbing case of the cure that killed the patient. Time Magazine 1995; 145(14 April 3). Hiatt HH, Barnes BA. Brennan TA. et al. A study of medical injury and medical malpractice: an overview. N Engl) Med 1989: 321:480—484. Kohn LT, Corrlgan JM, Donaldson MS, editors. To err is human building a safer health system. Washington, D.C: institute of Medicine, National Academy Press. 2000. Kraman S, Hamm G. Risk management: extreme honesty may be the best policy. Ann intern Med 1999; 131:963—967. Leape u. Brennan TA. Laird N, et al. The nature of adverse events in hospitalized patients: results of the Harvard Medical Practice Study ii. N Engl J Med 1991; 324:377—384. Lesar TS, Briceland L. Stein DS. Factors related to errors in medication prescribing. JAMA 1997; 277:312—317. Levinson W, Rater DL. Mullooly JP, Dull VT, Frankel RM. Physician-patient communication. The relationship with malpractice claims among primary care physicians and surgeons. JAMA 1997; 277:553-559. Localio AR. Lawthers AG, Brennan TA. et al. Relation between malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study iii. N Engl J Med 1991; 325:245—251. .Correia, DO, Department of General Internal Medicine, E 13 The Cleveland Clinic Foundation, 9500 Euclid Avenue, Cleveland, OH 44195; e—mail correindccf. org Armersmflleaenittestmpagefiofflisissn iBZE3C4DSBSC7E8DQE10EIIAiZC JANUARY 2002 ...
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