Home On the Wards Honest mistakes that can get you sued

Honest mistakes that can get you sued

Think you're doing everything right? Think again

May 2017
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Editor’s note: This is the second article in a two-part series on how to reduce your malpractice risk. Click here to read the first article.

AS AN EXPERT WITNESS in hospital medicine, I find many cases in which hospitalists think they managed a problem appropriately, only to get a letter from an attorney requesting records or filing suit. Although most of my reviews lead to an “I can’t support this suit,” sometimes I have to admit that mistakes were made. To help doctors avoid these instances, here’s my list of red flags, suspicious findings and unfounded assumptions to avoid.

A positive attitude is good, but …
Mr. Renal arrives with one of the usual ESRD problems: volume overload from dietary indiscretions or an infected dialysis catheter. You assure him and his family that a few days of meds and dialysis should get him back to baseline. Unfortunately, his pulmonary edema is also due to the coronary blockages he had opened or bypassed a few years ago, and by hospital day No. 2, he is in the ICU looking bad.

In court, “copy and paste” makes you look both lazy and negligent.

Or you “clear” somebody for surgery. Only when anesthesia can’t extubate him do you look at your note and recall that he uses CPAP for sleep apnea, has smoked for 40 years and his preadmission meds include two bronchodilators.

These are patients who develop problems we dread or don’t respond to treatment in the way we would want. It doesn’t hurt to hand out a few warnings: “We usually can reverse this” or “Your risk of surgery is higher than most people’s, so we will watch you closely.” And document those warnings. Many lawsuits have been dropped early because the Bad Thing patients complain about was listed as a possible complication on a consent that he or she signed.

“This patient is too young to get sick”
The plan was just to observe the patient overnight for a migraine that won’t quit or abdominal complaints written off as gastroenteritis. Your biggest concern is why somebody almost 30 hasn’t moved out of Mom’s house. But a few hours later, the nurse calls about abnormal vital signs, intractable pain or vomiting, or— worst of all—”he just doesn’t look good.”

You and I have both seen young people die of aneurysms, bowel obstructions and assorted cancers. Think when you first examine the patient: What is the worst condition that could cause these signs and symptoms, even if labs and X-rays are normal? What might it do over a few hours, and what do you need to watch for?

You may not need to order extra tests. But it costs little to order neuro vital signs every two hours on a headache patient.

“It got better with fluids”
A nurse calls about low blood pressure in a patient you thought was stable. You order a trial of normal saline, then call the floor and are told the BP is now up to 120/70. That sounds like you fixed the problem. But if the patient has no obvious source of volume loss, like diarrhea or recent dialysis, you need to use your brain.

A patient of any age who goes from “oriented x 3” to thinking she is in a museum or “crazy house” may not be just sundowning but showing early signs of an infection, alcohol withdrawal or a metabolic problem.

If you’ve written to increase a patient’s activity, ask yourself—and the patient—why there’s no record of him getting out of bed. New lower extremity weakness or incontinence requires a full neurologic workup. Otherwise, you may miss a reversible problem like a spinal epidural abscess or cauda equina syndrome.

The EHR is not your friend
You know that electronic records take away from face time with patients and, in some cases, make simple orders more complicated. But watch for other problems: Clicking on a dropdown menu can mean ordering the dosage or medication next to the one you really want. A slip could mean topical fluorouracil instead of fluconazole, or an adult dosage instead of pediatric.

Then there’s “copy and paste,” which makes you look both lazy and negligent when a patient is described in the same words four days in a row. And I’ve lost count of the times a consultant wrote a note listing problems the patient never had, simply because he clicked on the wrong name on his list.

The only one who can recheck your work is you. A few extra seconds checking name, allergies and problem list can prevent a great deal of trouble.

When the problem is another doctor
The ED doctor saw the patient just long enough to be sure she meets admission criteria for a single problem. What about past history, medications started this week, abnormal test results? Waiting until the patient arrives on the med-surg floor reduces the number of steps you take, but it delays a full evaluation.

The same goes for accepting somebody else’s diagnosis; the most recent study of claims against hospitalists found that the leading cause of suits was misdiagnosis, followed by incorrect or delayed treatment.

And if a surgeon or other consultant isn’t showing the concern you think he should, or is delaying a procedure unnecessarily, get another opinion and document your conversations. This takes only a minute of typing or dictation and will make your innocence clear. A primary care office that won’t release records you need or return your call requesting close follow-up after discharge should get the same treatment.

The unexpected disaster
He came in for community-acquired pneumonia and didn’t even meet criteria for VTE prophylaxis, but on day No. 2 he arrested and the code team could never get a pulse. Or she was here with simple cholecystitis and started dropping her blood pressure for no reason, then developed heart failure (or maybe ARDS, nobody is sure). You can’t answer your own questions, let alone the family’s, and your consultants just shrug.

Autopsies are easy to get at big teaching hospitals and more difficult at smaller ones. Call the pathology department now and find out who pays for them at your hospital and what paperwork needs to be done. You may be surprised at how agreeable the family is to something that may explain their loss, especially when you tell them an open casket service will still be possible. As an old professor put it, “Nothing beats knowing.”

When a neutral source confirms a massive MI, brain tumor or unsuspected aneurysm, it gives the family some closure. It may also make them more willing to accept that you were doing the best you could. Explain, explain, explain, then admit what you didn’t or couldn’t know.

You can’t avoid all lawsuits, but you can practice medicine in a way that makes them hard to win. Most states’ version of tort reform has made it much harder to file or prove charges. Careful evaluation, prompt attention to new events and good communication will discourage most—and meticulous documentation is your best friend in any legal situation.

Stella-FitzgibbonsStella Fitzgibbons, MD, has been a hospitalist since 2002 and has served as a medical expert since 2008.


Published in the May 2017 issue of Today’s Hospitalist
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