"Malpractice" from the viewpoint of a plaintiffs' attorney

Lawrence Schlachter is a neurosurgeon who after 23 years in practice, was forced to stop operating because of a hand injury. He went to law school, became a plaintiffs’ attorney, and wrote a book called “Malpractice.” Although it is intended for patients, physicians might want to read it to learn something about how a plaintiffs’ lawyer thinks.

I’m not surprised that Schlachter cites the heavily extrapolation-based Journal of Patient Safety study claiming 400,000 medical error-related deaths per year and the thoroughly debunked Makary study claiming 251,000 deaths per year due to medical error. He does a little extrapolating of his own and comes up with 562,000 patients per year.

I agree with Schlachter about many issues. He says the best way to avoid becoming a victim of negligence is to take good care of yourself. If you need to be hospitalized, aggressively be your own advocate or have a relative or friend do it. You cannot assume that mistakes will not happen.

A medical riddle: Where do incident reports go?

Incident reports are frequently submitted by hospital personnel. Did you ever wonder what happens to them? I have.

Over the years, I estimate that I’ve heard of hundreds of such reports being filed, but rarely have I heard of a problem being solved or for that matter, any action being taken at all.

In fact, I don’t even know where they went or who dealt with them. When I was a department chairman, I sat on quality assurance and risk management committees. Yet we never discussed individual incident reports.

The original intent of incident reports was to identify patient harms and increase patient safety.

According to a 2009 post by patient safety expert Dr. Bob Wachter, hospital incident reports are a spinoff from the Aviation Safety Reporting System which had successfully used them for identifying potential safety issues such as near misses.

At Dr. Wachter's hospital, San Francisco General, about 20,000 incident reports were filed every year. That is about half of what the Aviation Safety Reporting System receives per year, and San Francisco General Is only one of about 6000 hospitals in the United States.

Dr. Wachter feels that analyzing incident reports is not worth it. He estimates that each incident report creates about 80 minutes of work times 20,000 reports, which equals about 26,600 hours of wasted time. He also estimated that about one fourth of US hospitals do nothing with incident reports. That saves time but renders the reports useless.

He says an even bigger problem is that incident reports in his hospital fail to capture most events that harm patients.

That has also been my experience. I think most incident reports were filed by people wanting to "cover their asses" and most of the reported incidents were minor. A reference in Wachter's article states that most incident reports are submitted by nurses with only about 2% by doctors.

Incident reports can backfire too. From a 2002 Medscape article: "In some states, under certain conditions, the incident report is considered confidential and cannot be used against the nurse practitioner in a lawsuit. However, if copies are made or the chart reflects that an incident report was completed, the incident report can then be subpoenaed by the patient and used against the defendants in court."

And from the Louisiana State University School of Law: "The nonjudgmental nature of an incident report is very important because in most cases the incident report will be discoverable in litigation. An accusatory remark in an incident report may gain unintended weight in a legal proceeding."

Since incident reports generate a massive amount of wasted time, fail to identify most events that harm patients, are frequently ignored, and can possibly have a negative effect on lawsuits, why are they still being filled out by the thousands?

Is the surgeon still "captain of the ship"?

A Kentucky appeals court ruled that a surgeon was not responsible for a burn caused by an instrument that had been removed from an autoclave and placed on an anesthetized patient's abdomen.

According to an article in Outpatient Surgery, the surgeon was not in the room when the injury occurred and only discovered it when he was about to begin the procedure.

An insufflator valve had been sterilized and was apparently still hot when an unknown hospital staff member put it down on the patient's exposed skin. [An insufflator is a machine that is used to pump CO2 through tubing into the abdomen for laparoscopic surgery.] When the doctor saw the mild second-degree burn, he asked what happened, but "but no one in the OR claimed any knowledge or responsibility."

The hospital had settled the suit on behalf of its staff, but the surgeon, who as a private practitioner had his own malpractice insurance, held out. The original lower court ruling dismissing the suit against him had been based on the plaintiff's lawyer's failure to prove that the surgeon was responsible for the actions of the hospital staff.

In December 2012, I wrote a post stating my opinion that activities such as counting the sponges during an operation were not the responsibility of the surgeon. Many who commented on the post were highly indignant that I could suggest such a thing.

I wrote another post last year on the subject in response to another surgeon's blog entitled "Everything's my fault: How a surgeon says I'm sorry." I felt that many things that happened to patients were beyond the control of the surgeon. Most of the comments agreed with me.

I keep hearing that medical care has become a team sport. If that's true, then the surgeon, like everyone else, is simply a member of the team. People on teams have different roles and must execute properly for the team to succeed.

One of the most interesting things about the case in question was that none of the OR team members had any idea how that hot insufflator valve found its way to the patient's abdomen.

One thing we know for sure, at least in Kentucky, is that a surgeon is not legally responsible for everything that happens to a patient in the operating room, particularly when he is not even present.

Is this decision the first nail in the coffin of the "captain of the ship" doctrine?

Duke Docs Who Attached Intestine to Vagina Must Stand Trial

Catchy headline, isn't it?

That headline appeared two years ago on the Outpatient Surgery website. Too bad it wasn't accurate.

This case has been a topic on the Internet off and on for a few years. Although the patient's surgery took place in 2008, the malpractice trial did not occur until earlier this month.

Like nearly every news media article about malpractice incidents, details were sketchy and sensationalism was featured.

Also common in cases like this that although many stories appeared about the case before the trial, but few reported the verdict. That is because after deliberations lasting less than one day, the doctors were not found guilty of negligence.

According to a story on the only media outlet reporting the verdict—Courtroom View Network, here's what happened.

The patient underwent surgery for debilitating chronic constipation at Duke University Medical Center in 2008. Postoperatively, she developed a recto-vaginal fistula [a tract or tunnel from the rectum to the vagina] due to a portion of vaginal wall being caught in the surgical staple line when the intestine was reconnected. The problem was corrected by a second operative procedure.

Prior to the first case, the patient had been informed that secondary procedures might be necessary if complications arose.

The malpractice suit was originally denied by a lower court because the plaintiff could not find an expert witness to testify that negligence had occurred, but an appeals court ruled that an expert was not necessary because "even a layperson would be able to determine whether or not negligence occurred," and "It is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem."

Although the second operation solved the patient's problem, she claimed that she had suffered a conversion disorder causing slurred speech, tremors, and weakness. However, subsequent treating physicians felt that her symptoms were inconsistent and that she was "trying to appear disabled."

This case illustrates several important principles about medical malpractice cases.

They often take a long time—an average of 4 to 5 years—to be resolved.

Every less-than-perfect outcome is not necessarily due to negligence. Recto-vaginal fistula is a known complication of this type of surgery.

Stories from 2013, when the appeals court said the case could go to trial and from this year just before the trial started, implied that the surgeons had mistakenly attached the intestine to the vagina which many of us found hard to believe. But without knowing the details, we could only speculate.

The jury did not believe the alleged damage—a conversion reaction—was real.

This lawsuit, which cost both the plaintiff's attorney and the defendants' insurance company a lot of money and dragged two highly competent and respected surgeons through the mud for 7 years, should never have gotten off the ground.

There was a reason that plaintiff couldn't find an expert to testify that negligence occurred. The intestine was never mistakenly "attached to the vagina."

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.

Informed consent: Must the risk of death be discussed?

Last week, I wrote about the tragic case of a young girl in California who was declared brain-dead after what most media sources called a tonsillectomy. In fact, the patient had a much more extensive procedure for treatment of obstructive sleep apnea. In addition to having her tonsils removed, she underwent a uvulopalatopharyngoplasty (UPPP) and resection (removal) of her inferior nasal turbinate bones.

As I stated before, I will not speculate on whether the surgery was indicated or why the patient died because none of the facts about those two aspects of the case have been disclosed.

Questions have arisen about the informed consent discussion that may have been held with the patient's mother. We obviously do not know exactly what was said. However, some have wondered whether the possibility of death after this procedure was part of the consent process.

The mortality rates for a simple tonsillectomy range from about 1 in 10,000 to 1 in 35,000. For UPPP, the mortality rate for adults is generally quoted at 0.2% or 1 in 500. I was unable to find any information about the mortality rate for that operation in the pediatric age group.

The issue then is—must a surgeon mention death as a possible outcome after this type of surgery?

According to a medico-legal encyclopedia, the disclosure of risk depends on two general elements.

Would other doctors have disclosed the risk of death and would the patient (or family) have made a different decision if the risk of death had been discussed?

A paper from Duke University states the following: "In fact, there is no dictum that death must be included among the risks of every surgical procedure; when the risk of death is so low as to be unexpected and highly improbable, including it may actually be misleading." What they mean is that patients could be unnecessarily dissuaded from agreeing to a procedure they really needed.

The authors of the Duke paper go on to say that the question of how high of a risk requires disclosure is debatable, "but it may range from any chance of death to about 0.1% risk as a reasonable threshold for inclusion." Keep in mind that this is merely an opinion by three surgeons and a medical oncologist.

An informed consent guideline from Harvard says, "The type and the number of risks to be disclosed should depend on the significance the doctor's patient would attach to such risks in deciding whether to consent to the procedure or treatment. (The court recognizes that such disclosure does not apply to all 'remotely possibly risks of proposed treatment' which may be 'almost without limit.')"

The website of Dr. Erik J. Kezirian, a prominent expert in sleep apnea surgery, has information pertinent to this issue. The surgeon lists a number of complications related to UPPP including bleeding, infection, difficulty swallowing, tooth injury, and continued snoring. Notably absent is any mention of death.

I had always heard that adverse outcomes occurring less than 1% of the time need not be part of an informed consent discussion. Again, this is only an opinion. There is no agreed upon standard.

If a malpractice suit is filed, I doubt it will hinge on informed consent, but it is useful to discuss the topic. 

What do you think about informed consent and the risk of death?

[Disclaimer: I am not a lawyer and this is not legal advice.]

Defensive medicine is more of a problem than you think

You may have missed this when it first appeared.

Experts from Harvard and the University of Southern California say assumptions made by some analysts that defensive medicine is not an important facet of the high cost of healthcare may be wrong.

Those assumptions were based on data showing that malpractice reforms instituted in some states did little to reduce healthcare spending. 

According to the report from the National Center for Policy Analysis about an article in the wall Street Journal, defensive medicine ("ordering some tests or consultations simply to avoid the appearance of malpractice") is just as common in states with low as it is in those with high malpractice risk. In fact, about 2/3 of doctors in both the low and high risk states admitted to practicing defensive medicine. 

My experience is that the 2/3 figure is probably a very low estimate. Just about every physician I know has  ordered a test or consult strictly to "cover his/her ass" if something were to go wrong. I am certain it happens tens of thousands of times per day in the US.

What's the point of medical licensing?

A surgeon emailed me the following (in italics).

OK, I know this is radical but consider my argument...

Medical licensing protects no-one and costs physicians hundreds to thousands of dollars each year. If a physician is negligent, can the injured party sue the state that licensed him? I'm guessing not.

When I moved to my current location, I had to send lots of documentation to the state medical board so they could verify that I was a true and competent surgeon. I provided my employer with the same info so they could also verify my credentials. Now my employer can and will get sued if I commit a negligent act and absolutely should verify my credentials prior to handing me a scalpel. But the state? It's license is useless.

Most people choose a surgeon based on recommendations and word of mouth reputation and these are by far better indicators of quality than any credentialing board. Nobody asks to see my license, and, even if they did, it would not protect them any more than their trust in the health system in which I work.

If I was in private practice and had my license displayed on my wall it may give some reassurance to my patients, but it does not say anything about the quality of my work. Most doctors who really screw up due to negligence are licensed by the state.

I contend again, that word of mouth and reputation are the best indicators of a surgeons ability, anything beyond that is useless.

Caveat emptor, "let the buyer beware" remains the mantra of the informed consumer.

Thanks for letting me vent.

Of course this is a bit of exaggeration to make a point. We obviously need some sort of medical licensing or the public would not know if we were the same as the "butt enhancement" people who operate out of motel rooms.

But it's true that we—doctors and the public—don't get much bang for our buck. As I mentioned in my post about the Texas neurosurgeon who ran amok before that state's medical board took action, licensing fees are generally used by most states as a type of tax.

For example in the state of Texas, only$11 million of the $40 million in licensing fees collected per year goes to the medical board for policing the profession. The rest is left in the state's general fund.

My state also uses medical licensing fees as a tax rather than as a means to run a more effective medical board. I wonder how many other states do the same thing?

It's interesting that the surgeon who sent me this email has the same recommendation found by a researcher who recently looked at the relationship between hospital quality and patient satisfaction. Like many others, he found that there is no such relationship.

As the article about that paper states, "He [the researcher] suggested choosing a hospital the old-fashioned way: find a doctor you trust and ask for a recommendation."

PS: I'm surprised that lawyers haven't thought of suing states for allowing bad doctors to keep licenses.

Can retired specialists be retrained to ease the shortage of family doctors? No

Last week there was some buzz on Twitter about a proposal from a retired plastic surgeon in San Diego who has developed a plan to retrain retired specialists as family practitioners. The idea is that this could alleviate the shortage of primary care physicians that exists now and is predicted to worsen as more people become insured.

The 15-module course created by some faculty at the University of California at San Diego involves 100 hours of online study with patient simulator testing on the campus for tuition of $7,500.

According to an article in U-T San Diego, at least one doctor, also a retired plastic surgeon, has completed the course and seven more have enrolled.

Is this a possible answer to the shortage of primary care physicians?

I think not.

Take the course—100 hours of online learning. Does that sound like enough to you? It takes three-years to complete a family medicine residency. Most plastic surgeons I know haven't touched a stethoscope since medical school, don't know the names of any drugs, and couldn't recognize a sick patient under any circumstances.

I rarely look at the comments for online articles, but I read a few family medicine physicians' comments on this. They were highly indignant at the mere mention of training anyone to do what they do for only 100 hours. I would have to agree.

As one commenter said, there must be quite a few lawyers in California salivating over this scheme. Maybe it was even cooked up by a committee of the plaintiffs' bar.

Another small flaw in this plan is just how many retired specialists would even want to do this?

With all due respect [this is what someone usually says to preface a disrespectful comment], I couldn't do it.

We all considered primary care when we were in medical school, but we did not do so for one reason or another. I'm glad some people did. Bless their hearts.

For me to become a family practitioner at this or any other stage of my life would be tantamount to going straight to hell without passing "Go" and without collecting $200.00.

The primary care shortage is going to have to be solved without me and, I suspect, most of my specialist colleagues.