Are guidelines a "safe harbor" against malpractice suits?

Several months ago, Physician's Weekly featured an article describing a bill that was introduced into the House of Representatives called HR 1406 The Saving Lives, Saving Costs Act. It would create a "safe harbor" for physicians who could show that they followed best practice guidelines when faced with a malpractice suit. At the end of the piece, a question was asked, "Do you think this bill will help safeguard physicians against the influx of federal rules and regulations?"

Knowing little about the bill at the time, I tweeted that such a bill would never pass.

I couldn't list the reasons in a tweet, but here are a few.

Although guidelines are useful, they can be controversial too. Take the guidelines on screening mammography and PSA testing. When they came out, there was so much criticism that it would be difficult for any lawyer to use them as safe harbors. Plaintiffs' experts would simply say they disagreed with any guideline. A seed of doubt would be planted in the minds of jurors, and the safe harbor defense would fail.

The Dr. Whitecoat blog published a conversation between an emergency physician and a plaintiff's lawyer. It should be read in its entirety, including the comments, to be appreciated.

The conversation was mostly about the Choosing Wisely campaign, in which specialty societies publish guidelines listing certain tests and treatments that they feel can be avoided.

The lawyer said, "There will be a lot of bad discharges, refused admits, procedure delays, diagnoses delays, all in the name of ‘costs.’ Your societies and hospitals are masking this as evidence based practice, etc. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals…Testing is what makes diagnoses, saves people.

"I have a pretty set script here. To the effect of ‘so Doctor, you just didn’t care enough about my client to order this test?’ Or ‘so my client was just a statistic, just a percentage to you?’… [Juries] love that stuff!”

A post I wrote last year about a supposed set of common goals shared by lawyers and surgeons had these comments from another plaintiff's lawyer.

Regarding the use of guidelines as a malpractice defense which some have labeled a "safe harbor," the lawyer said, "The safe harbor concept becomes unacceptable if it allows guidelines to be used as a 'get out of jail free' card. Guidelines must be useful in exonerating and implicating clinician wrongdoing." My interpretation of what he said was that it's OK to use a guideline to prove a clinician did wrong, but following guidelines should not be a fail-safe defense strategy.

Just for fun, I looked up HR 1406's history. It was introduced on February 27, 2014 and immediately referred to three committees—the Energy and Commerce Committee, The Judiciary Committee, And the Subcommittee on Health. On March 20, 2014 it was referred to the Subcommittee on the Constitution and Civil Justice, and it hasn't been heard from again.

A website that tracks bills lists its status as "Died in a previous Congress."

I don't think you will be sailing to a safe harbor any time soon.

Should radiologists tell patients their test results?

Radiologists discussing test results with patients, a subject that has been lurking under the radar for a while, recently came to light because of an article in the New York Times. The idea is that patient anxiety while waiting to find out a test result could be alleviated by an immediate discussion with a radiologist.

That would be very nice, but there are potential problems, some of which are detailed in a post that appeared on the website of The Advisory Board and others in an editorial by radiologist Saurabh Jha accompanying a paper on the subject..

In the Times, Dr. Christopher Beaulieu, chief of musculoskeletal imaging at Stanford, said, “[T]he radiologist may be capable of transmitting the information but the obvious next question for the patient is, ‘What do I do now?’ which, as nontreating physicians, radiologists are not trained to answer.”

Proctoring, supervising, and coaching

Any surgeon who acts as a proctor for another surgeon or supervises residents or mid-level providers should be aware of the potential legal pitfalls.

An informative discussion of proctoring and supervision called "Is There a Proctor in the House?" appeared in 2012 on a website called Law Journal Newsletters.

Proctoring has always been an issue. For many years, surgeons have been assigned to proctor newly appointed staff in order to confirm that they were properly trained. Proctoring has been extended to those learning new techniques in minimally invasive and robotic surgery.

The usual scenario is that a proctor is assigned by a hospital's department chair or credentials committee with the expectation that the proctor will observe and report on the new individual's skills.

According to the article, "a surgical proctor who acts only as an observer should not have any medical malpractice liability if a procedure is performed below the standard of care." This holds true as long as the proctor has no physician-patient relationship and does not participate in any medical decision-making or scrub in on the procedure.

The quest for medical error transparency suffers setbacks

Two recent articles in American Medical News highlight the difficulties in moving toward a blameless culture in medicine.

First we have the results of an Agency for Healthcare Research and Quality survey of 600,000 staff from over 1100 hospitals. Half of them “believe their mistakes are held against them, and 54% said that when an adverse event is reported, ‘it feels like the person is being written up, not the problem.’" And two-thirds are concerned that records of errors are maintained in their personnel files. Despite lip service by medical thought leaders, the reported responses have not changed since the last AHRQ survey in 2007.

Much more alarming is the second amednews.com piece, which involves a family secretly recording a conversation with the chief medical officer [CMO] of an Ohio hospital.

Two days after knee surgery, a man died of cardiac arrest apparently secondary to an overlooked high serum potassium level. Before he died, the patient’s children met with the CMO, who had not personally been caring for the patient. Unaware that the conversation was being recorded, the CMO “made sympathetic and apologetic comments and admitted fault on the part of the hospital for Smith's condition, according to court records.”

The Ohio appellate court ruled that the secret recording was admissible and not protected by peer review privilege, as had been argued by the CMO’s lawyers. They had claimed that the CMO had learned of the error via the peer review process. Ohio law states that as long as one party consents, conversations can be recorded.

Thus we are left with pie-in-the-sky appeals for greater transparency and candor regarding medical errors [the so-called “Just Culture”] vs. a litigious society with stealth technical capabilites and a workplace atmosphere of fear and distrust.

Somehow I do not foresee a major change in the way doctors and hospital staffs approach this issue.

The “Dumbing Down” of the US Citizenry Thanks to Product Liability Litigation

Everyone has heard about those silly product warning labels that are made necessary by constant litigation. For example, here is one from a drain cleaner.

It says, “If you cannot read the directions, don’t use this product.” But if you can’t read, how do you know what it says?

Here is another one for you. We bought a pool toy that consists of several streamers that stand up in the pool. There is a weighted bottom with a buoyant top. (See photo below.) Children can swim around them under water or dive down and grab them. Sounds like fun, right? 

Of course it’s fun. But the manufacturer, Speedo, is taking no chances. On the bottom of each toy is this warning:

So, wait a minute. I shouldn’t throw something with a weight on it to a drowning person?

I happen to have a couple of extra bricks in my backyard. I am thinking all bricks should carry labels stating, “This is not a lifesaving device.”