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Avoiding the big mistakes in malpractice

February 2015
Moral Dilemma Ahead

Published in the February 2015 issue of Today’s Hospitalist

THE GOOD NEWS IS that we hospitalists don’t get sued often. Even though patients usually haven’t met us before they arrive, we “or the physician who referred them” can usually reassure them that we know what we’re doing.

But plaintiffs’ lawyers, I’m afraid, have “discovered” hospitalists; bad outcomes happen, and hospitalists miss chances to avoid them. I’m happy to say that more than 80% of the cases sent to me in my medical expert witness practice are groundless. But in the cases that have merit, the same mistakes keep turning up again and again.

Misdiagnosis: the “Big Four”
At the top of the list of complaints to evaluate carefully are chest pain, headache, abdominal pain and sepsis. Sure, you see the first three all the time. Your hospital may even have a designated chest pain unit where you can rule out MI and give patients a stress test.

THE NUMBER OF LAWSUITS linked to virtual health is ticking up. Read: “The pandemic’s impact on malpractice claims.”

But is the patient still having pain once the testing is complete? You’d better have a good (and documented) explanation of what caused it because pulmonary emboli and aortic aneurysms can be as lethal as an MI.

And if a patient suspected of substance abuse continues complaining of headache or abdominal pain, make sure to chart some negative test findings to show you did a conscientious workup. If you dismiss abnormal findings with excuses like, “Those are probably chronic,” you may be in for a rude surprise.

Appropriate consultants can add support to your views. So will notes containing reasons for believing the patient is not in danger. But “looks better” and “back to baseline” need physical findings and/or lab results to explain how you reached that conclusion.

The criteria for sepsis and SIRS (systemic inflammatory response syndrome) are clearly stated in a host of journal articles and on Web sites like www.mdcalc.com. Those are readily available online “not just for you, but for relatives who think a patient should have been moved to the ICU before the cardiac arrest.

If factors like fluctuating mental status or a drop in blood pressure show up in a patient with an infection or diminished reserves, thinking of the worst possible outcome that those might represent may prevent a very bad outcome. Trust me, intensivists and infectious disease specialists would rather be called too early than too late.

Machismo and mission creep
We don’t want to turn away business, and we want to be seen as the doctors who step up when somebody needs help. But we should turn down some challenges.

It’s critical to know what can and cannot be done at your hospital. When the ED calls with a bleeding ulcer, we can handle the labs and transfusions while the GI guy scopes the patient. Complications are rare, and most patients go home in a day or so.

But occasionally, ulcers perforate or penetrate posteriorly and cause pancreatitis. Or they re-bleed, especially if they have adherent clot, a visible vessel or are deep.

For those, you will probably need a surgeon. If your hospital has only two general surgeons and one is often out of town with family problems, that could seriously delay treatment. If the patient looks risky, pick up the phone before you have an emergency, and have a transfer plan “and receiving physician “ready to go.

The same goes for covering your friends on an occasional weekend. That’s fine if you can comfortably handle a few extra patients and get the information you need, which is more than just patient names and room numbers.

Or doctors in other specialties may ask you to handle a Saturday discharge, a great way to build relationships and reputations. But expect full signouts from them, as well as Dr. Specialist’s cell phone number and the name of a colleague to call if you have a problem and Dr. Specialist will be out of town. If you call about something that can be handled easily, you may get a snarky response or be told to deal with it yourself “but that’s far less upsetting than receiving a subpoena six months later. And for your own sake and that of other doctors, document those phone calls.

If you’re tempted or pressured to take on more patients than the 20 that most hospitalist journals recommend as a safe limit, just remember that the last patient you’ll see that day will wait until dinner time or later for your visit. That can boost your productivity, but if the patient is sicker than expected, you may have to explain your workload to an attorney.

When everybody else has the day off
Sure, double-duty weekends are a pain, but they let you take off some quality time. Unfortunately, covering partners’ patients means you spend less time with each patient, half of whom you’ve never met. Even with a first-class handoff list, you’re not sure if they look worse or better than they did on Friday.

You also have an incentive to discharge stable patients on Saturday so you don’t have to see them Sunday (not to mention that last missive from administration about reducing “avoidable days”). And when you’re “just covering,” there’s a temptation to put off decisions until the regular doctor returns on Monday.

That scenario led to the death of one patient with an easily treatable bowel obstruction. The attending physician should have known that the nurses were short-staffed on the weekend “and that having the program’s least-experienced resident do rounds meant that no physical exam was done, let alone a follow-up X-ray. The resident also failed to realize that the NG suction that was ordered was never started. By the time the Monday morning crew noticed the signs of sepsis and perforation, it was too late for even emergent surgery.

Another patient came in with neurologic symptoms that suggested a spinal cord lesion. The moonlighter covering when the MRI result was called in left the issue for the day shift, but the day doctor didn’t make rounds until 24 hours after the MRI. Plus it was the weekend, so the neurosurgery consult was further delayed. The patient has permanent disability, and the attorneys started planning the lawsuit as soon as they heard the details.

Here’s the bottom line: When you’re covering, you’re responsible. Your partners or the group that hires you to moonlight will not thank you for leaving them a mess to clean up on a busy Monday. Even if you call a consultant that the group doesn’t normally use or transfer a patient elsewhere, your job is to take the best possible care of the patient.

Making your notes work for you
With electronic medical records, it’s tempting to copy and paste the previous day’s note. But by the time you make sure it’s not hopelessly out of date (no change in presenting complaints since the day of admission), you might as well have started fresh and written a real progress note.

You should be able to free-text complaints and physical findings that don’t come in the drop-down menu and, of course, write your own impression and plan. If you’re cosigning a student’s, resident’s or NP’s/PA’s note, add enough of your own comments to make it clear that you examined the patient and made your own conclusions.

At a recent trial, I was asked why I formed my opinion about the patient’s care before reading the defending doctor’s deposition, in which he insisted he had done a thorough evaluation. My answer: The place where doctors need to make that case is in the chart, whether it’s paper or electronic.

When the patient doesn’t meet expectations
One recurring source of lawsuits involves patients who came in with problem A but developed problem B in the hospital. Surgical patients can blindside you with complications: Lovenox does not prevent 100% of postop PEs, and even people considered at low risk for CAD can have a perioperative MI.

In some cases in which I was called in, nobody thought that anything could go wrong: The chest pain was written off as indigestion, the low blood pressure was blamed on pain meds, and patients died or were disabled because of medical complacency. One study found that in-hospital MIs have worse outcomes than those admitted from home to the ED, so remember that the next time you patronize the ED docs.

A surgeon who consults you for “medical management” may not want to answer calls about blood sugar levels. But an experienced surgeon knows that medical complications can be even worse than surgical ones, and he expects you to recognize them and act accordingly.

What if you think there’s a surgical complication and the surgeon refuses to consider it? List it in your impression (“r/o bile leak”), and find an excuse to do a test that confirms your opinion. Better an angry surgeon than a patient disaster.

Failure to communicate
You’ve made sure the chest pain isn’t serious, lectured the patient on quitting smoking and found him a primary care doctor. But there’s that abnormal blood test result you can’t explain. Maybe it’s just a passing virus or maybe it’s early leukemia, but you know you’ll get a call from the case manager if you keep this guy in-house for a hematology consult.

Good documentation will serve you well here too. Mention the problem in your discharge summary for the primary care provider, along with the fact that you have told the patient why follow-up is necessary. The more alarming the finding, the more you’ll also want to phone the primary about it. Yes, it slows down the discharge, but the patient will agree that it’s worth it.

Medicine is not always an exact science, and sometimes your discharge decisions may be based on a feeling that something isn’t right rather than abnormal results. That is hard to explain to nonphysicians, and we are all under pressure from administrators.

But at the end of the day, you are legally and ethically bound to do what’s right for the patient. The best way to avoid malpractice lawyers is to do your best at patient care and record-keeping.

Even hospital administrators understand that.

Stella Fitzgibbons, MD, has been a hospitalist since 2002 and has worked with both plaintiff and defense attorneys since 2008. In 2014, Dr. Fitzgibbons testified about hospital disasters in four separate court cases and six depositions.