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Liability mistakes you want to avoid

November 2009

Published in the November 2009 issue of Today’s Hospitalist.

The practice of hospital medicine seems like a recipe for getting sued. After all, we take care of the sickest patients, some of whom have bad outcomes no matter what we do, and we almost never know the patient or family before they arrive at the hospital.

The good news is that hospital-based physicians are able to steer clear of many malpractice complaints, such as the “failure-to-diagnose” cases that plague primary care physicians. But as the number of hospitalists increases, the number of suits against us could do the same.

As a hospitalist who reviews cases for both plaintiff and defense attorneys, come across many reasons why patients sue “and sometimes win. The following are ways we can protect not only our patients, but ourselves.

Why are suits filed?
Data on how many hospitalists are sued are few and far between, but research has established some general reasons why patients sue physicians.

You probably know that patients feel pushed to take legal action not only because they suffer an injury, but because of how the situation is handled. One Lancet study, for instance, found that poor communication by physicians both before and after an event often left patients and families feeling that the doctor was uncaring or needed to improve his or her practice.

Quality of care, whether measured by peer review or by objective standards, was less important in the decision to sue than the doctor’s perceived motivations. Equally important was the desire to either get revenge for damages or to prevent a physician from making the same mistake again.

Research also shows that patients’ satisfaction with physicians is a powerful factor in their perception of their care, regardless of quality. Studies published in both the June 12, 2002, issue of the Journal of the American Medical Association and the October 2005 issue of The American Journal of Medicine found that patient satisfaction, regardless of physicians’ technical qualifications, correlated strongly with the risk of being sued. In the second study, physicians with the lowest patient satisfaction ratings had twice as many “risk management episodes” as those with the highest satisfaction scores.

Certain specialties are particularly vulnerable. According to a study in the May 1, 1994, Annals of Internal Medicine, the list of high-risk specialists includes obstetricians, orthopedic surgeons, ED doctors, general surgeons and family practitioners.

While research has yet to establish how hospitalists stack up to other specialties in terms of liability risk, one thing is clear: Plaintiff attorneys are beginning to see lawsuit material in the fact that hospitalists don’t meet patients before their hospital stay or see them after discharge.

Why hospitalists get sued
While lawsuits against hospitalists fall into several categories, almost all of them “and many of the adverse events themselves “could have been avoided with better communication. Here are some of the types of cases I see:

  • “SHE WAS JUST FINE UNTIL SHE WENT TO THAT PLACE.” One of my first case reviews dealt with an over-80 citizen who came to the hospital with a cough and fever. The chest X-ray showed bilateral pneumonia, and by the second day, the patient was confused and tachypneic.

    You can see where this is going, can’t you? And by all indications in the chart, so could the hospitalist and the cardiologist who was called in about the anterior wall MI that followed the pneumonia. But until then, the patient had been living independently, even mowing the lawn, so the family assumed that the hospital or its doctors must have done something wrong.

    The physicians could have avoided spending time with lawyers if they’d spent time instead carefully explaining the seriousness of the patient’s condition, beginning on day 1. The plaintiff’s lawyer would have backed off even faster if those communications with the family had been documented in the chart.

    Another malpractice “red flag” is when a young person dies or is disabled. Marion Kruse, JD, a defense attorney in Houston, puts it this way: “Bad results don’t mean malpractice, but they frequently cause lawsuits, Good communication and a good bedside manner prevent more lawsuits than almost anything other than perfect results.”

  • HOW PATIENTS LEAVE IS AS IMPORTANT AS HOW THEY COME IN. “Discharge home, follow up with PCP in 2 weeks” doesn’t cut it any more. Do patients have a primary care physician to follow up with? If not, can you either recommend one or advise them how to find one? Have you made it clear that you are responsible for only inpatient care?

    Those questions get more serious when there are new diagnoses, tests that need further work-up or medications that need monitoring. Plaintiff lawyers already know about warfarin and the recurrent thrombosis or hemorrhage that can result from too much or too little of the therapy. Be sure to document not only the education you give patients at discharge, but also where and when they will be getting INRs and dosage adjustments.

    A CT that needs a three-month repeat will have to be done as an outpatient. Giving that patient a copy of the radiology report at discharge will improve the odds that a slow-growing lesion will be treated before it metastasizes. It will also help you legally if the patient waits a year to be seen again.

    When a patient needs more urgent outpatient tests, communicate that to the follow-up physician by phone. I recently saw a case involving a gentleman with syncope who insisted on leaving the hospital once the neurologic workup was complete. His family physician never received any hospital notes, so the patient didn’t receive a cardiac stress test before his fatal MI.

    And if patients are from out of town or insist that they need to look around for a new primary physician, consider sending the discharge summary to those patients directly.

  • KEEP AN EYE ON YOUR COLLEAGUES. Failing to define clearly in the chart who is responsible for problems can lead to serious omissions in care and much higher liability risk.

    You also need to read the orders and notes your consultants write. One Texas internist was named in a suit brought by a malnourished patient for whom another doctor had ordered TPN without vitamins and trace minerals, even though the internist was the one who diagnosed the Wernicke’s encephalopathy and ordered IV thiamine to treat it.

    Even if you have no choice in consultants, you can protect yourself with documentation. Another hospitalist was dropped from a suit because his notes described his repeated calls to the neurosurgeon responsible for the delays in diagnosis and treatment of spinal cord compression.

    Keep in mind that the tests you order, even when you’re not the primary doctor, are your responsibility. If you see an orthopedic patient on the day of discharge and order a venous Doppler because of leg pain, be sure you check results before the patient leaves and not when she returns with a massive PE.

    And colleagues sometimes tempt us to go beyond our area of expertise. A surgeon who asks you to check a chest tube, an oncologist who gave chemo on Friday and wants you to cover for the weekend, or a cardiologist who “just wants an admit note” on a patient he will see tomorrow all raise the issue of who is going to recognize and treat complications that arise.

    In one case, a patient’s cardiologist was out on his boat instead of at the bedside, so the physician who admitted the patient is going to be the principal defendant in a suit.

    “Don’t treat out of your comfort zone,” advises Houston attorney William Sharp, JD. “Consult instead.” Avoid consultants who expect you to do their job.

    Mr. Sharp also points out that non-physician colleagues including nursing and pharmacy staff also write notes. A nursing note that “Dr. Nightcall was paged twice, no response” or a pharmacy notation that “doctor says risk of allergic reaction is acceptable” will come back to haunt you. Read those notes too.

  • DISASTERS: PREVENT WHAT YOU CAN … Comment in your notes on abnormal lab tests and vital signs. Two of my cases involved patients under age 30 whose low blood pressure was written off to dehydration or simply to youth. How many times have we said, “You don’t expect somebody that young to have 140/85 pressure”? But both had infections that led to sepsis and cardiopulmonary arrests the following day.

    Another patient’s fever was allowed to continue for eight days after pelvic surgery. She sued because of the extra surgery needed for the huge abscess that developed out of a bowel perforation.

    And while you can’t control patient noncompliance, you can document it along with your attempts to persuade patients to do what they should. Patients leaving against medical advice need not only careful explanation of their risks, but also instructions for care outside of the hospital that are just as detailed as those given to discharged patients.

  • … AND DON’T MISHANDLE THE OTHERS. What about bad outcomes that couldn’t have been prevented? If you’ve been a hospitalist for more than a month, you’ve probably sat with a family explaining and answering questions. Take your time, express your sympathy and listen to their concerns.

    Consider an autopsy if there is any doubt about what really happened, offering it to the family as a way to help explain things. I reviewed one case in which a patient admitted with pulmonary emboli had a normal venous Doppler of the lower extremities.

    Two days after admission, the patient arrested suddenly, possibly from recurrent emboli despite adequate anticoagulation. Did those emboli come from the pelvis? Did the patient have an undiagnosed malignancy or cardiac problem? We’ll never know, and neither will the lawyers or jury, because no autopsy was ever done.

    Then there’s the issue of when and how to apologize for mistakes. A study in the September 2009 issue of Journal of General Internal Medicine, for instance, points out that “it’s not what you say, it’s what they hear.” Researchers find that physicians who disclose errors in a nondefensive, unambiguous way may avoid those suits that patients bring because they feel they’ve been misled. Other personnel who may have been responsible for an error, such as nurses or pharmacists, should also be brought in to talk to the family.

  • HANDOFFS: OUR ACHILLES HEEL. Your patients have seen other doctors before they arrive at your hospital, and they need to see others when they leave. How you handle information transfers is critical.

    Notify the patient’s primary care doctor at the time of admission, preferably by phone. A quick way to bring him or her up to date is to send a copy of your dictated history and physical, and make sure the discharge summary goes there too. If the patient doesn’t have a primary care physician, suggest one you know and make them both happy.

    Getting outside records is a necessary nuisance, but even the best-educated patient may not know the difference between colectomy techniques or whether her chemo included adriamycin. Transfers from other hospitals may contain test results that don’t make it into a hastily dictated discharge summary, such as a dilated aorta seen on an echocardiogram in a patient with chest trauma who died suddenly after discharge from the second hospital. That’s because nobody at hospital No. 2 had seen the echo and done a CT to look for dissection.

    You are still, however, responsible for those results. You may not have time to wade through the whole pile of records on day 1, but do it as early as possible.

    Handoffs of information also include consultants and weekend or vacation coverage. Patients find it disturbing to have to see a new doctor rather than the one who admitted them, but they will be far more comfortable when the new physician coming on has a complete list of their problems and important test results. While hospitalist groups use everything from face-to-face handoffs to e-mail, the method itself is less important than how complete the information is.

It all comes down to communication in both directions, and it needs to be written “legibly “as well as verbal. Listen to questions before you answer them, make sure you’re not leaving someone important out of the discussion, and document what was said and done. You may still get sued, but you’ll feel better knowing that you’ve done the best job possible and left a record that supports you.

Stella Fitzgibbons, MD, is a hospitalist who practices in Houston.