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When the Biggest Mistake Yields the Smallest Impact
In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.
But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.
The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.
The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.
COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.
When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.
We think of studies as automated—and some are. But many more involve human decision making and interpretation.
Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.
The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.
Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.
Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.
Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.
Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?
The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.
Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.
Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages. —DML
In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.
But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.
The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.
The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.
COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.
When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.
We think of studies as automated—and some are. But many more involve human decision making and interpretation.
Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.
The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.
Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.
Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.
Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.
Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?
The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.
Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.
Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages. —DML
In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.
But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.
The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.
The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.
COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.
When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.
We think of studies as automated—and some are. But many more involve human decision making and interpretation.
Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.
The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.
Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.
Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.
Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.
Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?
The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.
Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.
Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages. —DML
A Cocktail of Medications Leads to Death
Following sledding and auto accidents, a man sought treatment from Dr G. for back and shoulder strain. During this time, he was prescribed several different pain medications, including oxycodone, carisoprodol, and alprazolam.
The motor vehicle accident occurred in April 2008 and resulted in a compression fracture. In January 2009, a neurosurgeon performed a surgical alternative, and the patient was discharged the next day with a prescription for 30-mg oxycodone. This dosage was twice the amount that Dr G. had already prescribed, but Dr G. advised the patient to continue with his original prescriptions. Three days after the procedure, the man was found dead with oxycodone, carisoprodol, and alprazolam in his system.
The plaintiff alleged negligence in the prescription of this drug combination, which caused respiratory depression and arrest. The defendant claimed that the patient died from aggravation of severe chronic cardiovascular disease and that the combination of medications in his system could not have led to death in such a drug-tolerant individual.
Continue for the outcome and David Lang's comments >>
Outcome
According to a published account, a defense verdict was returned.
Comment
There are two important points here. First, medication errors are more likely when several clinicians treat a single patient. This is particularly true when the care is of short duration (ie, related to surgery). Problems arise when the consulting team does not have full knowledge of a patient’s medication list—making the obtaining of a complete and current list critical. And yes, in some cases, this may mean reviewing a dozen different medications for potential interactions with the agent you contemplate giving the patient.
Does this mean the consulting surgeon is duty-bound to optimize the patient’s regimen for diabetes and hypertension? No, but the surgeon is duty-bound to wade through all those medications to be sure there will be no interactions.
Surgeons often use a standard postoperative regime. But as clinicians, we can’t simply order “what is usually given.” Take a moment to review the patient’s active medication list—don’t put yourself on autopilot, as tempting as it may be.
Second, we live in a time when many patients do not simply take “a pill” from “their doctor.” It is far more common for patients to take a recipe of pills from an extensive medical team. Each member of the team focuses on the system of his/her specialty and directs pharmaceutical intervention at that system. But we all want the same net result: the patient’s overall condition optimized without adverse effects or drug interactions.
One way to help patients handle a medical regimen is to recommend the use of a single pharmacist. That pharmacist serves as a gatekeeper to safeguard the patient from adverse results when a consulting clinician prescribes an interacting medication. The consulting clinician may have bad information; we have all seen a patient haul a weathered medication list from the depths of her pocket, only to learn that it is not current or is incomplete. A gatekeeper pharmacist will have an up-to-date list and can help to prevent errors.
Patients are also the last line of defense against a self-administered error. Inform the patient of the general class of medication you are prescribing, as well as the impact it may have: “This is a strong pain pill. It shouldn’t be taken with any medications or anything else that can make you sleepy—including alcohol.”
Additionally, it helps to have a clear delineation of which clinician is responsible for what problem. After surgery, it helps to clearly identify for the patient who will treat pain and for how long. The primary care provider (PCP) is probably not the best source of postoperative pain control, since the surgical team has a better understanding of expected pain and the typical medications and dosages to control it and is on alert for problems heralded by prolonged or atypical pain. Of course, the PCP should be aware of the selected agent, but a clear delineation of the surgical team’s responsibility for pain control should minimize frantic calls to the PCP’s office from the patient claiming to be in pain and out of medication.
In this case, chronic pain was managed by the PCP and postoperative pain by the surgical team. It is unclear if the surgical team was aware of the carisoprodol and alprazolam and the additional prescription for oxycodone. It is also possible that the patient was milking both sources for the oxycodone and overdid it—another reason it is advisable for one clinician to manage the patient’s pain. Make sure all parties are clear as to who that clinician is.
Finally, exercise caution when the potential effects of a medication are additive, even more so if they are synergistic. As we all know, there is a synergistic effect between central nervous system (CNS) depressants. Use caution when prescribing these agents together. Patients will often add more—diphenhydramine for allergies, one of their sister’s zolpidem for insomnia, cough suppressants for a cold—and of course, ethyl alcohol for any reason (or no reason at all). A sedated patient is a distracted patient, more prone to grogginess and forgetfulness, which may lead to self-medication errors.
If for some reason the patient genuinely requires multiple strong CNS depressant agents, he should ideally be followed by a pain management specialist. The risks should be fully explained and the patient informed that any additional agents causing drowsiness will have a substantially heightened effect. Tolerance can require larger doses and multiple agents with overlapping characteristics (eg CNS depressants); however, although the patient in this case was not opiate naïve, he still died of a fatal overdose. Be wary about adding agents or increasing the dosages of medications with synergistic effects.
One last thought: Different regions of the country have different juror demographics and beliefs. While this case was tried to a defense verdict in Macomb County, Michigan, the verdict may have been different in New York City or San Francisco, where jurors might be less likely to be swayed by what were certainly suggestions that the patient was improperly self-medicating.—DML
Following sledding and auto accidents, a man sought treatment from Dr G. for back and shoulder strain. During this time, he was prescribed several different pain medications, including oxycodone, carisoprodol, and alprazolam.
The motor vehicle accident occurred in April 2008 and resulted in a compression fracture. In January 2009, a neurosurgeon performed a surgical alternative, and the patient was discharged the next day with a prescription for 30-mg oxycodone. This dosage was twice the amount that Dr G. had already prescribed, but Dr G. advised the patient to continue with his original prescriptions. Three days after the procedure, the man was found dead with oxycodone, carisoprodol, and alprazolam in his system.
The plaintiff alleged negligence in the prescription of this drug combination, which caused respiratory depression and arrest. The defendant claimed that the patient died from aggravation of severe chronic cardiovascular disease and that the combination of medications in his system could not have led to death in such a drug-tolerant individual.
Continue for the outcome and David Lang's comments >>
Outcome
According to a published account, a defense verdict was returned.
Comment
There are two important points here. First, medication errors are more likely when several clinicians treat a single patient. This is particularly true when the care is of short duration (ie, related to surgery). Problems arise when the consulting team does not have full knowledge of a patient’s medication list—making the obtaining of a complete and current list critical. And yes, in some cases, this may mean reviewing a dozen different medications for potential interactions with the agent you contemplate giving the patient.
Does this mean the consulting surgeon is duty-bound to optimize the patient’s regimen for diabetes and hypertension? No, but the surgeon is duty-bound to wade through all those medications to be sure there will be no interactions.
Surgeons often use a standard postoperative regime. But as clinicians, we can’t simply order “what is usually given.” Take a moment to review the patient’s active medication list—don’t put yourself on autopilot, as tempting as it may be.
Second, we live in a time when many patients do not simply take “a pill” from “their doctor.” It is far more common for patients to take a recipe of pills from an extensive medical team. Each member of the team focuses on the system of his/her specialty and directs pharmaceutical intervention at that system. But we all want the same net result: the patient’s overall condition optimized without adverse effects or drug interactions.
One way to help patients handle a medical regimen is to recommend the use of a single pharmacist. That pharmacist serves as a gatekeeper to safeguard the patient from adverse results when a consulting clinician prescribes an interacting medication. The consulting clinician may have bad information; we have all seen a patient haul a weathered medication list from the depths of her pocket, only to learn that it is not current or is incomplete. A gatekeeper pharmacist will have an up-to-date list and can help to prevent errors.
Patients are also the last line of defense against a self-administered error. Inform the patient of the general class of medication you are prescribing, as well as the impact it may have: “This is a strong pain pill. It shouldn’t be taken with any medications or anything else that can make you sleepy—including alcohol.”
Additionally, it helps to have a clear delineation of which clinician is responsible for what problem. After surgery, it helps to clearly identify for the patient who will treat pain and for how long. The primary care provider (PCP) is probably not the best source of postoperative pain control, since the surgical team has a better understanding of expected pain and the typical medications and dosages to control it and is on alert for problems heralded by prolonged or atypical pain. Of course, the PCP should be aware of the selected agent, but a clear delineation of the surgical team’s responsibility for pain control should minimize frantic calls to the PCP’s office from the patient claiming to be in pain and out of medication.
In this case, chronic pain was managed by the PCP and postoperative pain by the surgical team. It is unclear if the surgical team was aware of the carisoprodol and alprazolam and the additional prescription for oxycodone. It is also possible that the patient was milking both sources for the oxycodone and overdid it—another reason it is advisable for one clinician to manage the patient’s pain. Make sure all parties are clear as to who that clinician is.
Finally, exercise caution when the potential effects of a medication are additive, even more so if they are synergistic. As we all know, there is a synergistic effect between central nervous system (CNS) depressants. Use caution when prescribing these agents together. Patients will often add more—diphenhydramine for allergies, one of their sister’s zolpidem for insomnia, cough suppressants for a cold—and of course, ethyl alcohol for any reason (or no reason at all). A sedated patient is a distracted patient, more prone to grogginess and forgetfulness, which may lead to self-medication errors.
If for some reason the patient genuinely requires multiple strong CNS depressant agents, he should ideally be followed by a pain management specialist. The risks should be fully explained and the patient informed that any additional agents causing drowsiness will have a substantially heightened effect. Tolerance can require larger doses and multiple agents with overlapping characteristics (eg CNS depressants); however, although the patient in this case was not opiate naïve, he still died of a fatal overdose. Be wary about adding agents or increasing the dosages of medications with synergistic effects.
One last thought: Different regions of the country have different juror demographics and beliefs. While this case was tried to a defense verdict in Macomb County, Michigan, the verdict may have been different in New York City or San Francisco, where jurors might be less likely to be swayed by what were certainly suggestions that the patient was improperly self-medicating.—DML
Following sledding and auto accidents, a man sought treatment from Dr G. for back and shoulder strain. During this time, he was prescribed several different pain medications, including oxycodone, carisoprodol, and alprazolam.
The motor vehicle accident occurred in April 2008 and resulted in a compression fracture. In January 2009, a neurosurgeon performed a surgical alternative, and the patient was discharged the next day with a prescription for 30-mg oxycodone. This dosage was twice the amount that Dr G. had already prescribed, but Dr G. advised the patient to continue with his original prescriptions. Three days after the procedure, the man was found dead with oxycodone, carisoprodol, and alprazolam in his system.
The plaintiff alleged negligence in the prescription of this drug combination, which caused respiratory depression and arrest. The defendant claimed that the patient died from aggravation of severe chronic cardiovascular disease and that the combination of medications in his system could not have led to death in such a drug-tolerant individual.
Continue for the outcome and David Lang's comments >>
Outcome
According to a published account, a defense verdict was returned.
Comment
There are two important points here. First, medication errors are more likely when several clinicians treat a single patient. This is particularly true when the care is of short duration (ie, related to surgery). Problems arise when the consulting team does not have full knowledge of a patient’s medication list—making the obtaining of a complete and current list critical. And yes, in some cases, this may mean reviewing a dozen different medications for potential interactions with the agent you contemplate giving the patient.
Does this mean the consulting surgeon is duty-bound to optimize the patient’s regimen for diabetes and hypertension? No, but the surgeon is duty-bound to wade through all those medications to be sure there will be no interactions.
Surgeons often use a standard postoperative regime. But as clinicians, we can’t simply order “what is usually given.” Take a moment to review the patient’s active medication list—don’t put yourself on autopilot, as tempting as it may be.
Second, we live in a time when many patients do not simply take “a pill” from “their doctor.” It is far more common for patients to take a recipe of pills from an extensive medical team. Each member of the team focuses on the system of his/her specialty and directs pharmaceutical intervention at that system. But we all want the same net result: the patient’s overall condition optimized without adverse effects or drug interactions.
One way to help patients handle a medical regimen is to recommend the use of a single pharmacist. That pharmacist serves as a gatekeeper to safeguard the patient from adverse results when a consulting clinician prescribes an interacting medication. The consulting clinician may have bad information; we have all seen a patient haul a weathered medication list from the depths of her pocket, only to learn that it is not current or is incomplete. A gatekeeper pharmacist will have an up-to-date list and can help to prevent errors.
Patients are also the last line of defense against a self-administered error. Inform the patient of the general class of medication you are prescribing, as well as the impact it may have: “This is a strong pain pill. It shouldn’t be taken with any medications or anything else that can make you sleepy—including alcohol.”
Additionally, it helps to have a clear delineation of which clinician is responsible for what problem. After surgery, it helps to clearly identify for the patient who will treat pain and for how long. The primary care provider (PCP) is probably not the best source of postoperative pain control, since the surgical team has a better understanding of expected pain and the typical medications and dosages to control it and is on alert for problems heralded by prolonged or atypical pain. Of course, the PCP should be aware of the selected agent, but a clear delineation of the surgical team’s responsibility for pain control should minimize frantic calls to the PCP’s office from the patient claiming to be in pain and out of medication.
In this case, chronic pain was managed by the PCP and postoperative pain by the surgical team. It is unclear if the surgical team was aware of the carisoprodol and alprazolam and the additional prescription for oxycodone. It is also possible that the patient was milking both sources for the oxycodone and overdid it—another reason it is advisable for one clinician to manage the patient’s pain. Make sure all parties are clear as to who that clinician is.
Finally, exercise caution when the potential effects of a medication are additive, even more so if they are synergistic. As we all know, there is a synergistic effect between central nervous system (CNS) depressants. Use caution when prescribing these agents together. Patients will often add more—diphenhydramine for allergies, one of their sister’s zolpidem for insomnia, cough suppressants for a cold—and of course, ethyl alcohol for any reason (or no reason at all). A sedated patient is a distracted patient, more prone to grogginess and forgetfulness, which may lead to self-medication errors.
If for some reason the patient genuinely requires multiple strong CNS depressant agents, he should ideally be followed by a pain management specialist. The risks should be fully explained and the patient informed that any additional agents causing drowsiness will have a substantially heightened effect. Tolerance can require larger doses and multiple agents with overlapping characteristics (eg CNS depressants); however, although the patient in this case was not opiate naïve, he still died of a fatal overdose. Be wary about adding agents or increasing the dosages of medications with synergistic effects.
One last thought: Different regions of the country have different juror demographics and beliefs. While this case was tried to a defense verdict in Macomb County, Michigan, the verdict may have been different in New York City or San Francisco, where jurors might be less likely to be swayed by what were certainly suggestions that the patient was improperly self-medicating.—DML
In Child Abuse Case, Everyone Fails
In May 2009, an employee of the New Jersey Division of Youth and Family Services brought a child to an urban medical center for evaluation of possible child abuse that had been reported by the child’s maternal grandmother. The infant, who was two-and-a-half months old at the time, was bleeding from the blood vessels of both eyes and had bruises on both sides of his face.
The treating physician, Dr A., ordered a series of x-rays of the entire body and CT of the head. The CT findings were initially read as negative, and the baby was discharged on the same day with a diagnosis of “suspected child abuse.” Two radiologists who reviewed the CT results identified fluid on the brain.
Three weeks later, the infant’s parents brought him to another medical center. He was bleeding from the mouth, and a lacerated frenum was diagnosed. Attending physician Dr K. discharged the infant with a notation that the injury had been sustained when the baby’s father “tried to put a bottle in the child’s mouth.”
In mid-July 2009, at the age of 4 months, the child was severely beaten by his father and sustained brain damage. The child was removed from his parents’ custody and placed with his grandmother. The father was later convicted of aggravated assault and child cruelty.
The child’s grandmother alleged negligence by the defendants in failing to recognize child abuse, which would have resulted in the infant being removed from his home earlier, before the brain damage could occur.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $7.4 million settlement was reached. Dr A. and his facility were responsible for $4.5 million; one of the radiologists and her employer, $475,000; the other radiologist and his employer, $750,000; Dr K. and his employer, $1.19 million; and the second medical center and several of its nurses, $560,000.
COMMENT
In this horrible case, there was no failure to diagnose. Dr A. diagnosed “suspected child abuse” during the May 2009 visit. The issue was the management of the case after abuse was suspected.
Suspected child abuse is a “hot potato,” and the cases are difficult to manage. Clinicians are trained to spot and treat illness. We are not well equipped to identify short-term safe housing, file court papers to terminate parental rights, conduct home visits, or interview family, friends, and neighbors to determine the best living arrangement for an at-risk patient.
Many clinicians feel that issues of abuse are outside medicine and are more appropriately dealt with by social workers, the courts, and law enforcement. Candidly, managing these cases is taxing. But manage them we must to adequately protect those who cannot protect themselves.
This case proves clinicians will be held accountable for child abuse. The defense attorneys realized the enormous malpractice exposure and consented to the substantial $7.4 million settlement. (This, it should be noted, is in addition to the largest verdict against the State of New Jersey in history: $166 million awarded against the Division of Youth and Family Services. As for the abusive father in this case, he received a paltry jail term of six years.)
So what do we do when evidence of abuse is discovered? How do we proceed? First, in cases when abuse is suspected, it is a bedrock principle that a child can’t be returned to the hands of the abuser. But how do we secure the patient’s safety after making a diagnosis of “likely child abuse”? As clinicians, we are duty bound to report abuse. Yet, under most circumstances, we do not have an automatic mechanism to emergently remove a child from a dangerous situation under our own authority: With great responsibility comes limited power. Sarcasm aside, there are steps we can take to safeguard children at risk.
Continue to learn how to safeguard children at risk >>
Consider emergency removal through your state’s child protection agency. In most cases, a child is removed from an unfit home by a court order. However, when the child is in imminent danger and there is insufficient time to follow this procedure, the child may be removed from the home by the state’s child protection agency without parental consent. (New Jersey, where this case occurred, is one such example; see NJSA 9:6-8.29[a].)
Know your state’s rules for emergency removal, and have the child abuse hotline number handy. If evidence of child abuse is present, contact the appropriate agency in your state and insist that emergency removal is warranted.
The local police department may be another option. Many states’ emergency removal procedures authorize and require local authorities to remove a child who is in imminent danger. Explain your evidence of abuse and the need for emergency action.
Lastly, if your state’s protective agency or your local police will not remove the child from the dangerous situation, another option is inpatient admission. Yes, beds are limited and costs are high. But far higher is the cost of a seriously injured child when we fail to act.
In this case, the New Jersey Division of Youth and Family Services was involved. The social workers only performed a background check and missed some 20 arrests on charges of assault and other crimes that the father had logged in Florida.
The first emergency physician who identified abuse faced liability exposure for returning the child to the abuser. He pursued a work-up for child abuse and made a diagnosis of child abuse, yet he did not adopt a disposition consistent with his work-up and diagnosis.
The second physician failed to recognize the significance of a lacerated labial frenum in a 2-month-old. This type of injury is particularly suggestive in children who are not independently mobile and thus incapable of accidental injury. Force sufficient to rip a 2-month-old’s lip away from his mouth should have been recognized as abusive force. There is no evidence in the case report that the second physician identified the abuse or acted to stop it.
IN SUM
Recognize and report abuse. Know your state’s emergency removal law, and marshal your evidence of abuse to impel state agency workers to act on their power to remove a child from an abusive situation. Above all, do not return a child to his or her abuser. —DML
In May 2009, an employee of the New Jersey Division of Youth and Family Services brought a child to an urban medical center for evaluation of possible child abuse that had been reported by the child’s maternal grandmother. The infant, who was two-and-a-half months old at the time, was bleeding from the blood vessels of both eyes and had bruises on both sides of his face.
The treating physician, Dr A., ordered a series of x-rays of the entire body and CT of the head. The CT findings were initially read as negative, and the baby was discharged on the same day with a diagnosis of “suspected child abuse.” Two radiologists who reviewed the CT results identified fluid on the brain.
Three weeks later, the infant’s parents brought him to another medical center. He was bleeding from the mouth, and a lacerated frenum was diagnosed. Attending physician Dr K. discharged the infant with a notation that the injury had been sustained when the baby’s father “tried to put a bottle in the child’s mouth.”
In mid-July 2009, at the age of 4 months, the child was severely beaten by his father and sustained brain damage. The child was removed from his parents’ custody and placed with his grandmother. The father was later convicted of aggravated assault and child cruelty.
The child’s grandmother alleged negligence by the defendants in failing to recognize child abuse, which would have resulted in the infant being removed from his home earlier, before the brain damage could occur.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $7.4 million settlement was reached. Dr A. and his facility were responsible for $4.5 million; one of the radiologists and her employer, $475,000; the other radiologist and his employer, $750,000; Dr K. and his employer, $1.19 million; and the second medical center and several of its nurses, $560,000.
COMMENT
In this horrible case, there was no failure to diagnose. Dr A. diagnosed “suspected child abuse” during the May 2009 visit. The issue was the management of the case after abuse was suspected.
Suspected child abuse is a “hot potato,” and the cases are difficult to manage. Clinicians are trained to spot and treat illness. We are not well equipped to identify short-term safe housing, file court papers to terminate parental rights, conduct home visits, or interview family, friends, and neighbors to determine the best living arrangement for an at-risk patient.
Many clinicians feel that issues of abuse are outside medicine and are more appropriately dealt with by social workers, the courts, and law enforcement. Candidly, managing these cases is taxing. But manage them we must to adequately protect those who cannot protect themselves.
This case proves clinicians will be held accountable for child abuse. The defense attorneys realized the enormous malpractice exposure and consented to the substantial $7.4 million settlement. (This, it should be noted, is in addition to the largest verdict against the State of New Jersey in history: $166 million awarded against the Division of Youth and Family Services. As for the abusive father in this case, he received a paltry jail term of six years.)
So what do we do when evidence of abuse is discovered? How do we proceed? First, in cases when abuse is suspected, it is a bedrock principle that a child can’t be returned to the hands of the abuser. But how do we secure the patient’s safety after making a diagnosis of “likely child abuse”? As clinicians, we are duty bound to report abuse. Yet, under most circumstances, we do not have an automatic mechanism to emergently remove a child from a dangerous situation under our own authority: With great responsibility comes limited power. Sarcasm aside, there are steps we can take to safeguard children at risk.
Continue to learn how to safeguard children at risk >>
Consider emergency removal through your state’s child protection agency. In most cases, a child is removed from an unfit home by a court order. However, when the child is in imminent danger and there is insufficient time to follow this procedure, the child may be removed from the home by the state’s child protection agency without parental consent. (New Jersey, where this case occurred, is one such example; see NJSA 9:6-8.29[a].)
Know your state’s rules for emergency removal, and have the child abuse hotline number handy. If evidence of child abuse is present, contact the appropriate agency in your state and insist that emergency removal is warranted.
The local police department may be another option. Many states’ emergency removal procedures authorize and require local authorities to remove a child who is in imminent danger. Explain your evidence of abuse and the need for emergency action.
Lastly, if your state’s protective agency or your local police will not remove the child from the dangerous situation, another option is inpatient admission. Yes, beds are limited and costs are high. But far higher is the cost of a seriously injured child when we fail to act.
In this case, the New Jersey Division of Youth and Family Services was involved. The social workers only performed a background check and missed some 20 arrests on charges of assault and other crimes that the father had logged in Florida.
The first emergency physician who identified abuse faced liability exposure for returning the child to the abuser. He pursued a work-up for child abuse and made a diagnosis of child abuse, yet he did not adopt a disposition consistent with his work-up and diagnosis.
The second physician failed to recognize the significance of a lacerated labial frenum in a 2-month-old. This type of injury is particularly suggestive in children who are not independently mobile and thus incapable of accidental injury. Force sufficient to rip a 2-month-old’s lip away from his mouth should have been recognized as abusive force. There is no evidence in the case report that the second physician identified the abuse or acted to stop it.
IN SUM
Recognize and report abuse. Know your state’s emergency removal law, and marshal your evidence of abuse to impel state agency workers to act on their power to remove a child from an abusive situation. Above all, do not return a child to his or her abuser. —DML
In May 2009, an employee of the New Jersey Division of Youth and Family Services brought a child to an urban medical center for evaluation of possible child abuse that had been reported by the child’s maternal grandmother. The infant, who was two-and-a-half months old at the time, was bleeding from the blood vessels of both eyes and had bruises on both sides of his face.
The treating physician, Dr A., ordered a series of x-rays of the entire body and CT of the head. The CT findings were initially read as negative, and the baby was discharged on the same day with a diagnosis of “suspected child abuse.” Two radiologists who reviewed the CT results identified fluid on the brain.
Three weeks later, the infant’s parents brought him to another medical center. He was bleeding from the mouth, and a lacerated frenum was diagnosed. Attending physician Dr K. discharged the infant with a notation that the injury had been sustained when the baby’s father “tried to put a bottle in the child’s mouth.”
In mid-July 2009, at the age of 4 months, the child was severely beaten by his father and sustained brain damage. The child was removed from his parents’ custody and placed with his grandmother. The father was later convicted of aggravated assault and child cruelty.
The child’s grandmother alleged negligence by the defendants in failing to recognize child abuse, which would have resulted in the infant being removed from his home earlier, before the brain damage could occur.
Continue for the outcome and David Lang's comments >>
OUTCOME
A $7.4 million settlement was reached. Dr A. and his facility were responsible for $4.5 million; one of the radiologists and her employer, $475,000; the other radiologist and his employer, $750,000; Dr K. and his employer, $1.19 million; and the second medical center and several of its nurses, $560,000.
COMMENT
In this horrible case, there was no failure to diagnose. Dr A. diagnosed “suspected child abuse” during the May 2009 visit. The issue was the management of the case after abuse was suspected.
Suspected child abuse is a “hot potato,” and the cases are difficult to manage. Clinicians are trained to spot and treat illness. We are not well equipped to identify short-term safe housing, file court papers to terminate parental rights, conduct home visits, or interview family, friends, and neighbors to determine the best living arrangement for an at-risk patient.
Many clinicians feel that issues of abuse are outside medicine and are more appropriately dealt with by social workers, the courts, and law enforcement. Candidly, managing these cases is taxing. But manage them we must to adequately protect those who cannot protect themselves.
This case proves clinicians will be held accountable for child abuse. The defense attorneys realized the enormous malpractice exposure and consented to the substantial $7.4 million settlement. (This, it should be noted, is in addition to the largest verdict against the State of New Jersey in history: $166 million awarded against the Division of Youth and Family Services. As for the abusive father in this case, he received a paltry jail term of six years.)
So what do we do when evidence of abuse is discovered? How do we proceed? First, in cases when abuse is suspected, it is a bedrock principle that a child can’t be returned to the hands of the abuser. But how do we secure the patient’s safety after making a diagnosis of “likely child abuse”? As clinicians, we are duty bound to report abuse. Yet, under most circumstances, we do not have an automatic mechanism to emergently remove a child from a dangerous situation under our own authority: With great responsibility comes limited power. Sarcasm aside, there are steps we can take to safeguard children at risk.
Continue to learn how to safeguard children at risk >>
Consider emergency removal through your state’s child protection agency. In most cases, a child is removed from an unfit home by a court order. However, when the child is in imminent danger and there is insufficient time to follow this procedure, the child may be removed from the home by the state’s child protection agency without parental consent. (New Jersey, where this case occurred, is one such example; see NJSA 9:6-8.29[a].)
Know your state’s rules for emergency removal, and have the child abuse hotline number handy. If evidence of child abuse is present, contact the appropriate agency in your state and insist that emergency removal is warranted.
The local police department may be another option. Many states’ emergency removal procedures authorize and require local authorities to remove a child who is in imminent danger. Explain your evidence of abuse and the need for emergency action.
Lastly, if your state’s protective agency or your local police will not remove the child from the dangerous situation, another option is inpatient admission. Yes, beds are limited and costs are high. But far higher is the cost of a seriously injured child when we fail to act.
In this case, the New Jersey Division of Youth and Family Services was involved. The social workers only performed a background check and missed some 20 arrests on charges of assault and other crimes that the father had logged in Florida.
The first emergency physician who identified abuse faced liability exposure for returning the child to the abuser. He pursued a work-up for child abuse and made a diagnosis of child abuse, yet he did not adopt a disposition consistent with his work-up and diagnosis.
The second physician failed to recognize the significance of a lacerated labial frenum in a 2-month-old. This type of injury is particularly suggestive in children who are not independently mobile and thus incapable of accidental injury. Force sufficient to rip a 2-month-old’s lip away from his mouth should have been recognized as abusive force. There is no evidence in the case report that the second physician identified the abuse or acted to stop it.
IN SUM
Recognize and report abuse. Know your state’s emergency removal law, and marshal your evidence of abuse to impel state agency workers to act on their power to remove a child from an abusive situation. Above all, do not return a child to his or her abuser. —DML
The High Cost of “Free Advice”
A couple had their first child in May 1998. The boy exhibited developmental delays and had chronic problems with eating and weight gain. In August 1999, he collapsed with uncontrollable seizures. He was placed in a drug-induced coma. A month later, when he emerged from the coma, he was neurologically compromised. He recovered somewhat but then regressed, experiencing another seizure episode. He died in January 2000. MRI of his brain showed a lesion on his thalamus.
The couple’s second child was born in April 2002. This child also had delays and developed seizures, was placed in a coma, and emerged neurologically impaired. She too was found to have an abnormality in her thalamus. She died in July 2004.
The couple was referred to Dr. S, a geneticist. They consulted Dr. S both before and after the second child’s death. After their daughter’s death, the couple asked Dr. S whether it was possible to have biological children who would not have the same problems. Dr. S told them that he could not identify the specific gene causing the defect but advised that it would be safe to conceive a child with a donor egg from the general population and the husband’s sperm through in vitro fertilization.
Dr. S allegedly advised the couple that a child conceived this way would have essentially the same risk for the unidentified disease as anyone in the general population. The couple asked in writing if it would be safer to use both a donor sperm and a donor egg to further reduce the risk, and Dr. S replied by letter that the difference was “negligible.”
In June 2007, the couple had a child who was conceived with a donated egg and the husband’s sperm. This child suffered the same fate as the two previous children, dying in September 2008. MRI of the child’s brain, like the others, showed an abnormality of the thalamus. The child was diagnosed with Alpers syndrome postmortem.
The plaintiffs claimed that the chances of having a child with Alpers syndrome are about 1:200,000 in the general population, but that the chances if one parent is a known carrier are about 1:1,000. The plaintiffs claimed that if they had known of this risk, they would have used a donor egg and donor sperm to conceive a child or would have adopted. The plaintiffs alleged negligence by Dr. S in failing to give them this information.
Continue for the outcome and David Lang's comment >>
OUTCOME
A $1,086,612 verdict was returned, with the jury finding Dr. S 25% at fault and the plaintiffs 75% at fault.
COMMENT
A skilled tax accountant will provide guidance on how to claim deductions. Many lawyers listen and advise but do little else. These people sit at a desk and provide advice—that is what they do. Dispensing advice from a seated position is their only stock in store.
By contrast, clinicians are kinetic people. They are on their feet, up and about. They perform workups and surgeries, procedures and treatments. Clinicians are people in motion accustomed to action.
Yet clinicians often forget: Dispensing advice is practicing medicine. They are conditioned to dispense this advice freely, and by freely I mean both casually and without compensation. As a result, clinicians often fail to realize the value and potential liability of the spoken word. Make no mistake: Giving medical advice incurs legal risk. Lawyers know this; how many give free advice while absorbing the risk for that advice? Yeah, I thought so ....
Clinicians can be held legally liable for misinformation as easily as they can for misdiagnosis. The key is detrimental reliance. When a clinician gives a patient incorrect information, there is no legal case. The patient has a legal case if, and only if, he or she relies on that information and is injured (detriment) based on that reliance.
Here, the standard of care required the geneticist to be familiar with Alpers syndrome and accurately convey the risk associated with different courses of action. Like an accountant or attorney, the service sought and tendered is advice. The plaintiff was told that the risk for having another child with Alpers syndrome was “negligible” and made a decision based on that risk assessment.
The risk, however, was not negligible; it was 200 times greater than that in the general population. Relying on the geneticist’s information, the plaintiffs decided to use the father’s sperm and suffered legally compensable injury when their third child was born with the same condition. There was clearly clinician error.
Nevertheless, the jurors found the parents 75% at fault (for attempting to have another child) and the physician 25% at fault. Some states only allow a plaintiff to recover damages if they have no fault at all (pure contributory negligence), while others permit recovery if the plaintiff is 50% or less at fault. A handful of states—including Florida, where this case occurred—allow a plaintiff to recover even if they are 99% at fault (pure comparative negligence). In those cases, the jury determines the damages and the parties’ respective fault percentages, and the plaintiff’s recovery is reduced by that percentage. Here, the physician was responsible for 25% of the $1,086,612 award and thus had to pay $271,653.
In sum: Don’t give “free advice” too freely. >>
IN SUM
Don’t give “free advice” too freely. Document advice and options, and make sure the patient understands them. Understand that providing advice establishes a clinician–patient relationship and that you are legally responsible for advice given.
Beware of dispensing advice electronically or over the phone, where you are off your turf and lack the usual preconditions to high quality care (eg, a chart, vital signs, a medication/allergy/problem list). Never provide advice in situations where you cannot do so (my recurring favorite: a request for telephone diagnosis of a rash you’ve never seen). Dispense advice as you would medication: cautiously and with documentation. —DML
A couple had their first child in May 1998. The boy exhibited developmental delays and had chronic problems with eating and weight gain. In August 1999, he collapsed with uncontrollable seizures. He was placed in a drug-induced coma. A month later, when he emerged from the coma, he was neurologically compromised. He recovered somewhat but then regressed, experiencing another seizure episode. He died in January 2000. MRI of his brain showed a lesion on his thalamus.
The couple’s second child was born in April 2002. This child also had delays and developed seizures, was placed in a coma, and emerged neurologically impaired. She too was found to have an abnormality in her thalamus. She died in July 2004.
The couple was referred to Dr. S, a geneticist. They consulted Dr. S both before and after the second child’s death. After their daughter’s death, the couple asked Dr. S whether it was possible to have biological children who would not have the same problems. Dr. S told them that he could not identify the specific gene causing the defect but advised that it would be safe to conceive a child with a donor egg from the general population and the husband’s sperm through in vitro fertilization.
Dr. S allegedly advised the couple that a child conceived this way would have essentially the same risk for the unidentified disease as anyone in the general population. The couple asked in writing if it would be safer to use both a donor sperm and a donor egg to further reduce the risk, and Dr. S replied by letter that the difference was “negligible.”
In June 2007, the couple had a child who was conceived with a donated egg and the husband’s sperm. This child suffered the same fate as the two previous children, dying in September 2008. MRI of the child’s brain, like the others, showed an abnormality of the thalamus. The child was diagnosed with Alpers syndrome postmortem.
The plaintiffs claimed that the chances of having a child with Alpers syndrome are about 1:200,000 in the general population, but that the chances if one parent is a known carrier are about 1:1,000. The plaintiffs claimed that if they had known of this risk, they would have used a donor egg and donor sperm to conceive a child or would have adopted. The plaintiffs alleged negligence by Dr. S in failing to give them this information.
Continue for the outcome and David Lang's comment >>
OUTCOME
A $1,086,612 verdict was returned, with the jury finding Dr. S 25% at fault and the plaintiffs 75% at fault.
COMMENT
A skilled tax accountant will provide guidance on how to claim deductions. Many lawyers listen and advise but do little else. These people sit at a desk and provide advice—that is what they do. Dispensing advice from a seated position is their only stock in store.
By contrast, clinicians are kinetic people. They are on their feet, up and about. They perform workups and surgeries, procedures and treatments. Clinicians are people in motion accustomed to action.
Yet clinicians often forget: Dispensing advice is practicing medicine. They are conditioned to dispense this advice freely, and by freely I mean both casually and without compensation. As a result, clinicians often fail to realize the value and potential liability of the spoken word. Make no mistake: Giving medical advice incurs legal risk. Lawyers know this; how many give free advice while absorbing the risk for that advice? Yeah, I thought so ....
Clinicians can be held legally liable for misinformation as easily as they can for misdiagnosis. The key is detrimental reliance. When a clinician gives a patient incorrect information, there is no legal case. The patient has a legal case if, and only if, he or she relies on that information and is injured (detriment) based on that reliance.
Here, the standard of care required the geneticist to be familiar with Alpers syndrome and accurately convey the risk associated with different courses of action. Like an accountant or attorney, the service sought and tendered is advice. The plaintiff was told that the risk for having another child with Alpers syndrome was “negligible” and made a decision based on that risk assessment.
The risk, however, was not negligible; it was 200 times greater than that in the general population. Relying on the geneticist’s information, the plaintiffs decided to use the father’s sperm and suffered legally compensable injury when their third child was born with the same condition. There was clearly clinician error.
Nevertheless, the jurors found the parents 75% at fault (for attempting to have another child) and the physician 25% at fault. Some states only allow a plaintiff to recover damages if they have no fault at all (pure contributory negligence), while others permit recovery if the plaintiff is 50% or less at fault. A handful of states—including Florida, where this case occurred—allow a plaintiff to recover even if they are 99% at fault (pure comparative negligence). In those cases, the jury determines the damages and the parties’ respective fault percentages, and the plaintiff’s recovery is reduced by that percentage. Here, the physician was responsible for 25% of the $1,086,612 award and thus had to pay $271,653.
In sum: Don’t give “free advice” too freely. >>
IN SUM
Don’t give “free advice” too freely. Document advice and options, and make sure the patient understands them. Understand that providing advice establishes a clinician–patient relationship and that you are legally responsible for advice given.
Beware of dispensing advice electronically or over the phone, where you are off your turf and lack the usual preconditions to high quality care (eg, a chart, vital signs, a medication/allergy/problem list). Never provide advice in situations where you cannot do so (my recurring favorite: a request for telephone diagnosis of a rash you’ve never seen). Dispense advice as you would medication: cautiously and with documentation. —DML
A couple had their first child in May 1998. The boy exhibited developmental delays and had chronic problems with eating and weight gain. In August 1999, he collapsed with uncontrollable seizures. He was placed in a drug-induced coma. A month later, when he emerged from the coma, he was neurologically compromised. He recovered somewhat but then regressed, experiencing another seizure episode. He died in January 2000. MRI of his brain showed a lesion on his thalamus.
The couple’s second child was born in April 2002. This child also had delays and developed seizures, was placed in a coma, and emerged neurologically impaired. She too was found to have an abnormality in her thalamus. She died in July 2004.
The couple was referred to Dr. S, a geneticist. They consulted Dr. S both before and after the second child’s death. After their daughter’s death, the couple asked Dr. S whether it was possible to have biological children who would not have the same problems. Dr. S told them that he could not identify the specific gene causing the defect but advised that it would be safe to conceive a child with a donor egg from the general population and the husband’s sperm through in vitro fertilization.
Dr. S allegedly advised the couple that a child conceived this way would have essentially the same risk for the unidentified disease as anyone in the general population. The couple asked in writing if it would be safer to use both a donor sperm and a donor egg to further reduce the risk, and Dr. S replied by letter that the difference was “negligible.”
In June 2007, the couple had a child who was conceived with a donated egg and the husband’s sperm. This child suffered the same fate as the two previous children, dying in September 2008. MRI of the child’s brain, like the others, showed an abnormality of the thalamus. The child was diagnosed with Alpers syndrome postmortem.
The plaintiffs claimed that the chances of having a child with Alpers syndrome are about 1:200,000 in the general population, but that the chances if one parent is a known carrier are about 1:1,000. The plaintiffs claimed that if they had known of this risk, they would have used a donor egg and donor sperm to conceive a child or would have adopted. The plaintiffs alleged negligence by Dr. S in failing to give them this information.
Continue for the outcome and David Lang's comment >>
OUTCOME
A $1,086,612 verdict was returned, with the jury finding Dr. S 25% at fault and the plaintiffs 75% at fault.
COMMENT
A skilled tax accountant will provide guidance on how to claim deductions. Many lawyers listen and advise but do little else. These people sit at a desk and provide advice—that is what they do. Dispensing advice from a seated position is their only stock in store.
By contrast, clinicians are kinetic people. They are on their feet, up and about. They perform workups and surgeries, procedures and treatments. Clinicians are people in motion accustomed to action.
Yet clinicians often forget: Dispensing advice is practicing medicine. They are conditioned to dispense this advice freely, and by freely I mean both casually and without compensation. As a result, clinicians often fail to realize the value and potential liability of the spoken word. Make no mistake: Giving medical advice incurs legal risk. Lawyers know this; how many give free advice while absorbing the risk for that advice? Yeah, I thought so ....
Clinicians can be held legally liable for misinformation as easily as they can for misdiagnosis. The key is detrimental reliance. When a clinician gives a patient incorrect information, there is no legal case. The patient has a legal case if, and only if, he or she relies on that information and is injured (detriment) based on that reliance.
Here, the standard of care required the geneticist to be familiar with Alpers syndrome and accurately convey the risk associated with different courses of action. Like an accountant or attorney, the service sought and tendered is advice. The plaintiff was told that the risk for having another child with Alpers syndrome was “negligible” and made a decision based on that risk assessment.
The risk, however, was not negligible; it was 200 times greater than that in the general population. Relying on the geneticist’s information, the plaintiffs decided to use the father’s sperm and suffered legally compensable injury when their third child was born with the same condition. There was clearly clinician error.
Nevertheless, the jurors found the parents 75% at fault (for attempting to have another child) and the physician 25% at fault. Some states only allow a plaintiff to recover damages if they have no fault at all (pure contributory negligence), while others permit recovery if the plaintiff is 50% or less at fault. A handful of states—including Florida, where this case occurred—allow a plaintiff to recover even if they are 99% at fault (pure comparative negligence). In those cases, the jury determines the damages and the parties’ respective fault percentages, and the plaintiff’s recovery is reduced by that percentage. Here, the physician was responsible for 25% of the $1,086,612 award and thus had to pay $271,653.
In sum: Don’t give “free advice” too freely. >>
IN SUM
Don’t give “free advice” too freely. Document advice and options, and make sure the patient understands them. Understand that providing advice establishes a clinician–patient relationship and that you are legally responsible for advice given.
Beware of dispensing advice electronically or over the phone, where you are off your turf and lack the usual preconditions to high quality care (eg, a chart, vital signs, a medication/allergy/problem list). Never provide advice in situations where you cannot do so (my recurring favorite: a request for telephone diagnosis of a rash you’ve never seen). Dispense advice as you would medication: cautiously and with documentation. —DML
Keep Calm & Provide Good Care
In July 2010, a 67-year-old woman underwent a laparoscopic cholecystectomy performed by Dr. P at a Georgia hospital. When extensive scar tissue was found, the procedure was converted to an open surgery.
In the process, Dr. P encountered excessive bleeding and discovered a tear in the portal vein (which carries blood from the spleen, pancreas, and gallbladder to the liver). Dr. P called in a vascular surgeon, Dr. L, to repair the vein. But the woman had already experienced catastrophic blood loss, and she died in the ICU shortly after surgery.
The plaintiffs argued that Dr. P was behind schedule and rushed through the surgery, inserting a trocar tube without proper visualization and causing the portal vein injury. Dr. P claimed that the scar tissue had caused complications but admitted that he had not inserted a Veress needle into the abdominal cavity to create space around the organs before inserting the trocar tube. Dr. P claimed that this was not negligence, just a departure from his own usual practice.
Continue for the outcome and discussion >>
OUTCOME
A $1,050,000 settlement was reached during jury deliberations. This included $1 million from the insurer and $50,000 from Dr. P personally.
COMMENT
Here, the surgeon injured the portal vein during insertion of a trocar. Often, a Veress needle is first inserted and carbon dioxide insufflated into the peritoneum to establish a pneumoperitoneum that provides space between injury-prone structures. However, trocars can also be inserted directly, without a pneumoperitoneum (this is known as direct trocar insertion). It has been estimated that 40% of surgeons use Veress needle insufflation prior to primary trocar insertion, 30% use direct trocar insertion, and another 30% use the Hasson (direct visualization) technique.1
The plaintiff’s expert witness attempted to convince the jury that the standard of care required a pneumoperitoneum and proper visualization. The defense expert likely offered a compelling defense that the direct trocar insertion technique was an acceptable alternative. But did this case ultimately hinge on two competing methods of trocar placement, or something else? I would suggest the latter.
First, be cautious about letting scheduling drive any aspect of patient care. In this case, the plaintiffs were able to show that the surgeon was behind schedule and that he departed from his usual practices by foregoing the pneumoperitoneum. This was aided by the defendant’s own admission. While lay jurors may have difficulty understanding complication rate data on the Veress needle insufflation technique versus direct trocar insertion technique or the location of the portal vein, they can easily understand rushing through a job and will use the physician’s own haste-based departure from usual practice against him. In sum, do not depart from usual practices because of scheduling matters or patient backlogs.
Furthermore, while it is tempting to let patients know the emergency department is busy, or that you are swamped or backlogged in the clinic—don’t. Just don’t. Never give patients the perception that you are too busy. At best, it will be interpreted as an admission that you are overtaxed; at worst, an admission that you are shortchanging the patient.
I have seen the bursting waiting room; the inbox overflowing with charts; patients and family members wandering in and out of treatment areas asking “How long?”; the single patient who requires nearly all resources; and of course, the wait for a callback from the on-call consultant who never responds. As clinicians, we can only do our best on these shifts, despite being tired, overwhelmed, and besieged.
But I have also seen the other side, where the plaintiff’s attorney’s theory of the case centers around the idea that his client received substandard treatment because of taxed system resources—with you taking the fall. What would they like to prove? That you were tired, overwhelmed, and besieged.
Don’t hang yourself with your own words. Nothing furthers the plaintiff’s case like statements from the clinician such as “Things are crazy here tonight,” “We are just trying to get by,” “We are two people short,” etc. While such statements are fine for KFC or the DMV, they have no place in clinical practice. Even when invited—perhaps the patient says, “You guys are hopping tonight”—the best response is, “We just want to provide the best care for everyone here.”
Why this paranoia about the spoken word? It’s simple: Should any outcome be unfavorable, patients will have the perception that they were “rushed through.” Under evidence law, your statements to the patient and family about the “crazy shift” may be directly admissible as evidence against you, being classified either as nonhearsay or as an exception to the hearsay rule.
You want the jurors to judge you on the merits of the care provided, not on collateral matters out of your control. In a close case, a “rushed out the door” narrative may tip the balance in the plaintiff’s favor. Avoid setting this table for the plaintiff.
If you become dangerously busy, your system is broken and must be fixed. It must be fixed for burnout reasons, for patient satisfaction reasons, and most importantly, for patient safety reasons. Have this discussion, but have it with the right people in your practice—not the patient or patient’s family at bedside.
This surgeon paid part of the settlement out of his own pocket. His malpractice insurance policy was likely capped at $1 million. After the close of final arguments, the parties, believing the case could go either way, reached a settlement of $1 million plus a sizable contribution of $50,000 from the surgeon’s personal assets. This may have been preferable to the prospect of a runaway verdict with the potential to bankrupt the surgeon and his family.
What about your malpractice policy? It’s no romance novel or bestseller, but you should be familiar with the general terms: the policy limits, who has settlement authority (the clinician or insurance company), and any important exclusions/limitations. Furthermore, NPs and PAs should know whether they are covered as an insured party in their own right or if coverage is shared with a physician. The difference could be an important one. —DML
REFERENCE
1. Emergency Care Research Institute. Trocars: safety and selection. Health Devices. 1998;27(11):376-399.
In July 2010, a 67-year-old woman underwent a laparoscopic cholecystectomy performed by Dr. P at a Georgia hospital. When extensive scar tissue was found, the procedure was converted to an open surgery.
In the process, Dr. P encountered excessive bleeding and discovered a tear in the portal vein (which carries blood from the spleen, pancreas, and gallbladder to the liver). Dr. P called in a vascular surgeon, Dr. L, to repair the vein. But the woman had already experienced catastrophic blood loss, and she died in the ICU shortly after surgery.
The plaintiffs argued that Dr. P was behind schedule and rushed through the surgery, inserting a trocar tube without proper visualization and causing the portal vein injury. Dr. P claimed that the scar tissue had caused complications but admitted that he had not inserted a Veress needle into the abdominal cavity to create space around the organs before inserting the trocar tube. Dr. P claimed that this was not negligence, just a departure from his own usual practice.
Continue for the outcome and discussion >>
OUTCOME
A $1,050,000 settlement was reached during jury deliberations. This included $1 million from the insurer and $50,000 from Dr. P personally.
COMMENT
Here, the surgeon injured the portal vein during insertion of a trocar. Often, a Veress needle is first inserted and carbon dioxide insufflated into the peritoneum to establish a pneumoperitoneum that provides space between injury-prone structures. However, trocars can also be inserted directly, without a pneumoperitoneum (this is known as direct trocar insertion). It has been estimated that 40% of surgeons use Veress needle insufflation prior to primary trocar insertion, 30% use direct trocar insertion, and another 30% use the Hasson (direct visualization) technique.1
The plaintiff’s expert witness attempted to convince the jury that the standard of care required a pneumoperitoneum and proper visualization. The defense expert likely offered a compelling defense that the direct trocar insertion technique was an acceptable alternative. But did this case ultimately hinge on two competing methods of trocar placement, or something else? I would suggest the latter.
First, be cautious about letting scheduling drive any aspect of patient care. In this case, the plaintiffs were able to show that the surgeon was behind schedule and that he departed from his usual practices by foregoing the pneumoperitoneum. This was aided by the defendant’s own admission. While lay jurors may have difficulty understanding complication rate data on the Veress needle insufflation technique versus direct trocar insertion technique or the location of the portal vein, they can easily understand rushing through a job and will use the physician’s own haste-based departure from usual practice against him. In sum, do not depart from usual practices because of scheduling matters or patient backlogs.
Furthermore, while it is tempting to let patients know the emergency department is busy, or that you are swamped or backlogged in the clinic—don’t. Just don’t. Never give patients the perception that you are too busy. At best, it will be interpreted as an admission that you are overtaxed; at worst, an admission that you are shortchanging the patient.
I have seen the bursting waiting room; the inbox overflowing with charts; patients and family members wandering in and out of treatment areas asking “How long?”; the single patient who requires nearly all resources; and of course, the wait for a callback from the on-call consultant who never responds. As clinicians, we can only do our best on these shifts, despite being tired, overwhelmed, and besieged.
But I have also seen the other side, where the plaintiff’s attorney’s theory of the case centers around the idea that his client received substandard treatment because of taxed system resources—with you taking the fall. What would they like to prove? That you were tired, overwhelmed, and besieged.
Don’t hang yourself with your own words. Nothing furthers the plaintiff’s case like statements from the clinician such as “Things are crazy here tonight,” “We are just trying to get by,” “We are two people short,” etc. While such statements are fine for KFC or the DMV, they have no place in clinical practice. Even when invited—perhaps the patient says, “You guys are hopping tonight”—the best response is, “We just want to provide the best care for everyone here.”
Why this paranoia about the spoken word? It’s simple: Should any outcome be unfavorable, patients will have the perception that they were “rushed through.” Under evidence law, your statements to the patient and family about the “crazy shift” may be directly admissible as evidence against you, being classified either as nonhearsay or as an exception to the hearsay rule.
You want the jurors to judge you on the merits of the care provided, not on collateral matters out of your control. In a close case, a “rushed out the door” narrative may tip the balance in the plaintiff’s favor. Avoid setting this table for the plaintiff.
If you become dangerously busy, your system is broken and must be fixed. It must be fixed for burnout reasons, for patient satisfaction reasons, and most importantly, for patient safety reasons. Have this discussion, but have it with the right people in your practice—not the patient or patient’s family at bedside.
This surgeon paid part of the settlement out of his own pocket. His malpractice insurance policy was likely capped at $1 million. After the close of final arguments, the parties, believing the case could go either way, reached a settlement of $1 million plus a sizable contribution of $50,000 from the surgeon’s personal assets. This may have been preferable to the prospect of a runaway verdict with the potential to bankrupt the surgeon and his family.
What about your malpractice policy? It’s no romance novel or bestseller, but you should be familiar with the general terms: the policy limits, who has settlement authority (the clinician or insurance company), and any important exclusions/limitations. Furthermore, NPs and PAs should know whether they are covered as an insured party in their own right or if coverage is shared with a physician. The difference could be an important one. —DML
REFERENCE
1. Emergency Care Research Institute. Trocars: safety and selection. Health Devices. 1998;27(11):376-399.
In July 2010, a 67-year-old woman underwent a laparoscopic cholecystectomy performed by Dr. P at a Georgia hospital. When extensive scar tissue was found, the procedure was converted to an open surgery.
In the process, Dr. P encountered excessive bleeding and discovered a tear in the portal vein (which carries blood from the spleen, pancreas, and gallbladder to the liver). Dr. P called in a vascular surgeon, Dr. L, to repair the vein. But the woman had already experienced catastrophic blood loss, and she died in the ICU shortly after surgery.
The plaintiffs argued that Dr. P was behind schedule and rushed through the surgery, inserting a trocar tube without proper visualization and causing the portal vein injury. Dr. P claimed that the scar tissue had caused complications but admitted that he had not inserted a Veress needle into the abdominal cavity to create space around the organs before inserting the trocar tube. Dr. P claimed that this was not negligence, just a departure from his own usual practice.
Continue for the outcome and discussion >>
OUTCOME
A $1,050,000 settlement was reached during jury deliberations. This included $1 million from the insurer and $50,000 from Dr. P personally.
COMMENT
Here, the surgeon injured the portal vein during insertion of a trocar. Often, a Veress needle is first inserted and carbon dioxide insufflated into the peritoneum to establish a pneumoperitoneum that provides space between injury-prone structures. However, trocars can also be inserted directly, without a pneumoperitoneum (this is known as direct trocar insertion). It has been estimated that 40% of surgeons use Veress needle insufflation prior to primary trocar insertion, 30% use direct trocar insertion, and another 30% use the Hasson (direct visualization) technique.1
The plaintiff’s expert witness attempted to convince the jury that the standard of care required a pneumoperitoneum and proper visualization. The defense expert likely offered a compelling defense that the direct trocar insertion technique was an acceptable alternative. But did this case ultimately hinge on two competing methods of trocar placement, or something else? I would suggest the latter.
First, be cautious about letting scheduling drive any aspect of patient care. In this case, the plaintiffs were able to show that the surgeon was behind schedule and that he departed from his usual practices by foregoing the pneumoperitoneum. This was aided by the defendant’s own admission. While lay jurors may have difficulty understanding complication rate data on the Veress needle insufflation technique versus direct trocar insertion technique or the location of the portal vein, they can easily understand rushing through a job and will use the physician’s own haste-based departure from usual practice against him. In sum, do not depart from usual practices because of scheduling matters or patient backlogs.
Furthermore, while it is tempting to let patients know the emergency department is busy, or that you are swamped or backlogged in the clinic—don’t. Just don’t. Never give patients the perception that you are too busy. At best, it will be interpreted as an admission that you are overtaxed; at worst, an admission that you are shortchanging the patient.
I have seen the bursting waiting room; the inbox overflowing with charts; patients and family members wandering in and out of treatment areas asking “How long?”; the single patient who requires nearly all resources; and of course, the wait for a callback from the on-call consultant who never responds. As clinicians, we can only do our best on these shifts, despite being tired, overwhelmed, and besieged.
But I have also seen the other side, where the plaintiff’s attorney’s theory of the case centers around the idea that his client received substandard treatment because of taxed system resources—with you taking the fall. What would they like to prove? That you were tired, overwhelmed, and besieged.
Don’t hang yourself with your own words. Nothing furthers the plaintiff’s case like statements from the clinician such as “Things are crazy here tonight,” “We are just trying to get by,” “We are two people short,” etc. While such statements are fine for KFC or the DMV, they have no place in clinical practice. Even when invited—perhaps the patient says, “You guys are hopping tonight”—the best response is, “We just want to provide the best care for everyone here.”
Why this paranoia about the spoken word? It’s simple: Should any outcome be unfavorable, patients will have the perception that they were “rushed through.” Under evidence law, your statements to the patient and family about the “crazy shift” may be directly admissible as evidence against you, being classified either as nonhearsay or as an exception to the hearsay rule.
You want the jurors to judge you on the merits of the care provided, not on collateral matters out of your control. In a close case, a “rushed out the door” narrative may tip the balance in the plaintiff’s favor. Avoid setting this table for the plaintiff.
If you become dangerously busy, your system is broken and must be fixed. It must be fixed for burnout reasons, for patient satisfaction reasons, and most importantly, for patient safety reasons. Have this discussion, but have it with the right people in your practice—not the patient or patient’s family at bedside.
This surgeon paid part of the settlement out of his own pocket. His malpractice insurance policy was likely capped at $1 million. After the close of final arguments, the parties, believing the case could go either way, reached a settlement of $1 million plus a sizable contribution of $50,000 from the surgeon’s personal assets. This may have been preferable to the prospect of a runaway verdict with the potential to bankrupt the surgeon and his family.
What about your malpractice policy? It’s no romance novel or bestseller, but you should be familiar with the general terms: the policy limits, who has settlement authority (the clinician or insurance company), and any important exclusions/limitations. Furthermore, NPs and PAs should know whether they are covered as an insured party in their own right or if coverage is shared with a physician. The difference could be an important one. —DML
REFERENCE
1. Emergency Care Research Institute. Trocars: safety and selection. Health Devices. 1998;27(11):376-399.
Jury Finds Fault With Midwife’s Care
During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.
The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.
Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.
Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.
When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.
An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.
The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.
The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)
The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.
On the next page: Outcome >>
OUTCOME
A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.
COMMENT
Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.
A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.
First, consider surgical options when appropriate. Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable.
However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.
While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.
For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.
It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.
Continued on the next page >>
Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.
Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.
If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.
Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.
IN SUM
From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.
During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.
The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.
Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.
Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.
When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.
An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.
The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.
The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)
The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.
On the next page: Outcome >>
OUTCOME
A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.
COMMENT
Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.
A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.
First, consider surgical options when appropriate. Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable.
However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.
While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.
For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.
It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.
Continued on the next page >>
Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.
Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.
If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.
Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.
IN SUM
From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.
During her pregnancy, a Wisconsin woman received care from a nurse-midwife. In late July 2001, misoprostol was administered to induce labor. The woman was admitted to the hospital in active labor at approximately 2 pm. She was 6 cm dilated. Dilation arrested three times, and then there was a two-hour failure to dilate.
The nurse-midwife then tried putting the mother in a water-birthing tub to stimulate contractions, without success. Oxytocin was then administered. Immediately thereafter, the patient developed uterine hyperstimulation, and the fetal heart rate strip showed late decelerations, indicative of fetal distress.
Despite these abnormalities, the nurse-midwife continued increasing oxytocin throughout labor, which continued for about 12 hours. The oxytocin dose exceeded the hospital’s recommended protocols. The patient reached a point at which she was having strong contractions every 1.5 min. Full dilation was not reached until 10:38 pm.
Around midnight, the electronic fetal monitor allegedly showed an abnormal heart pattern, with decelerations with almost every contraction. The mother was allowed to continue with labor, and the fetal monitoring equipment was removed at 1:26 am so the mother could be placed in the water-birthing tub again. Nurses took the fetal heart rate during this time and recorded it as normal.
When the child was delivered at approximately 2 am, she had a heart rate of 80 beats/min; she was apneic, cyanotic, and virtually lifeless. Apgar scores were recorded as 1 at one minute and 3 at five minutes. Arterial blood gas/pH was 7.165.
An attending physician was called and arrived within 20 min. The infant was resuscitated, intubated, and transferred to another hospital. A CT scan taken at 56 hours of life was read as normal. An MRl at nine months was also read as normal.
The child was subsequently diagnosed as having cerebral palsy. She requires a walker for ambulation and has arm and leg impairments and significant cognitive deficits, necessitating 24-hour assistance.
The plaintiff claimed that if oxytocin had been discontinued, she would have reached full dilation hours earlier than she did. She also claimed that a cesarean delivery or operative vaginal delivery should have been performed when the fetal monitor indicated an abnormal heart pattern. (She contended that the “normal” heart rate recorded around this time was actually the maternal heart rate.)
The parties did not dispute that the infant had experienced a hypoxic/ischemic event but disagreed on when it occurred. The plaintiff claimed that the ischemic event occurred during delivery. The defendants claimed that it occurred in utero prior to delivery. The plaintiff also disputed the MRI findings, which the plaintiff argued showed significant brain injury.
On the next page: Outcome >>
OUTCOME
A jury found the nurse-midwife 80% at fault and the hospital 20% at fault. The jury awarded $13.5 million to the child and $100,000 to the plaintiff. An additional $110,000 in past medical expenses was added to the verdict.
COMMENT
Obstetrics/midwifery accounts for a significant percentage of malpractice cases filed and monetary damages awarded. In this case, a substantial $13.5 million verdict was awarded, with 80% of the verdict against the midwife for inappropriate use of oxytocin and failure to refer for cesarean delivery.
A detailed discussion of obstetric management is beyond the scope of this article (in part because we don’t have access to much data, including fetal heart rate tracings). However, there are a few points to consider.
First, consider surgical options when appropriate. Without doubt, operative delivery by cesarean section is overused for all the wrong reasons. Some mothers, families, and clinicians strongly desire a more natural childbirth and strive to create such an experience—forgoing traditional medications and anesthesia. Often, this is perfectly safe, reasonable, and preferable.
However, if the perinatal course is rocky, it is wise to monitor closely and adopt a collaborative approach. When prenatal screening suggests a difficult delivery, exercise caution and have a fallback plan. Known high-risk deliveries should have a team approach from the outset, with all assets available to bedside on short notice.
While operative delivery is overused, it shouldn’t be demonized either. When genuinely needed, it can be lifesaving. Some patients do not want a cesarean delivery, and both the patient and the clinician may equate operative delivery with personal failure. However, that view may present a barrier to calling for consultation when it is genuinely needed.
For natural childbirth enthusiasts, think of the surgical delivery option as sealed in a glass case. Break that glass for all the right reasons: to preserve life or avoid significant fetal morbidity. Discuss the indications for surgical management ahead of time, so the mother is not surprised by a sudden rush to the operating room, feeling frightened and out of control.
It is recognized that patients and clinicians have firmly held beliefs, and opinions are strong on this subject. Patients have a right to self-determination and to select the birthing experience that will suit them best. Yet there is tension because jurors will expect a clinician to fully communicate known risks to patients and use all available resources to safeguard the mother and fetus at all times. In this case, the jury concluded that the midwife failed to refer for cesarean delivery after about 10 hours of labor, when the fetal heart rate pattern was nonreassuring. One of the plaintiff’s expert witnesses who criticized the defendant midwife’s care was herself a highly regarded midwife.
Continued on the next page >>
Second, use oxytocin carefully, slowing or stopping it when required. While we do not have access to the fetal heart rate monitor strips in this case, we do know that the plaintiff met her burden of proof and persuaded the jurors that the midwife inappropriately increased the drug in the setting of uterine hyperstimulation, with evidence of fetal distress. It seems surprising that the allegedly “normal” pattern recorded at 1:26 am could have been the maternal heart rate—but apparently, the jurors were convinced of this.
Third, when a facility has a medication protocol, follow it unless there is good cause not to. Medication protocols can be useful to establish operating guidelines and reduce medication errors. But they can also shackle clinicians by substituting tables and algorithms for clinical judgment. Problems arise when a protocol is sidestepped, and the clinician is raked over the coals for failing to adhere. If your facility has protocols that are important to your practice, read the documentation. Learn it, know it, live it.
If you operate outside a protocol, and your case goes to trial, the expert witness defending your care will be forced to take on both the plaintiff’s allegations and your own facility’s recommendations. The plaintiff’s closing argument will include a variation of “Mr. A did not even bother to follow his hospital’s own rules.” This argument is easy for jurors to understand, and many will reach a finding of negligence based on this fact alone. If you disagree with the protocol, or it is not reflective of your actual practice, either clinician practice or the protocol must be changed. Do not routinely circumvent protocols without good reason.
Ideally, protocols should be constructed to give clinicians flexibility based on clinical judgment and patient response. If you have a role in forming a protocol, consider advocating for less rigidity and allowing for professional judgment. If the protocol is rigid, be sure that everyone understands it and that it can be strictly followed in a real world practice environment. Put plainly, don’t install a set of rules you can’t live with—it is professionally constraining and legally risky.
IN SUM
From a legal standpoint, it is not safe to completely discard surgical delivery; when needed, it is required. Patients given oxytocin must be monitored closely, and the drug should be discontinued in the setting of uterine hyperactivity with fetal distress. Follow medication protocols or change them—but whatever you do, don’t ignore them.
All for Want of a Rectal Exam
In January 2008, a man presented to the emergency department (ED) of a Florida hospital with complaints of headache and rectal pain. He was seen by Dr. C., who did not perform a rectal exam and discharged the patient with a diagnosis of acute headache.
The following day, the man returned to the ED with right lower quadrant pain. He was evaluated by a PA, who noted painful urination and erythema in the groin. The PA diagnosed dysuria, tinea cruris, and “probable exposure to sexually transmitted disease.”
Two days later, the patient went to the ED again, complaining of severe bilateral abdominal pain, rectal and head pain, and shortness of breath. Dr. N. evaluated him and ordered labwork, including a complete blood count and d-dimer qualitative study, and CT of the pelvis. These revealed an elevated white blood cell count and extensive soft tissue emphysema in the pelvis. The radiologist reported concern about a “perineal soft tissue infectious process” and noted that he and another radiologist had reviewed the findings with an ED physician.
The following morning, Dr. O. assessed the patient and admitted him with a diagnosis of possible cellulitis. The patient was then transferred to another hospital.
The plaintiff filed a lawsuit claiming that he actually had a necrotizing infection and that the delay in diagnosis resulted in the development of disseminated intravascular coagulation with thrombocytopenia. The plaintiff required numerous surgeries and wide local debridement of the tissue of his perineum, scrotum, rectum, and preperitoneum. He developed multiple life-threatening complications, underwent hyperbaric oxygen therapy, endured five months of inpatient care, and required placement of a long-term colostomy.
The plaintiff’s initial claims included many defendants. Several settled for undisclosed amounts; others were dismissed. The action proceeded to trial against hospitalist Dr. O. and his medical practice.
Continue for outcome >>
OUTCOME
A defense verdict was returned. The defendants were granted fees and costs in the amount of $54,000.
COMMENT
This is a case of Fournier gangrene. We are not told the patient’s age, and we don’t know if he had a history of diabetes, alcoholism, or other factors that would have made the diagnosis of Fournier gangrene more likely.
Fournier gangrene, a life-threatening urosurgical emergency, is a necrotizing infection of the perineum caused by a mix of aerobic and anaerobic bacteria. It may be generally expected in immunocompromised patients. Less commonly, it affects otherwise healthy patients with urogenital trauma, such as piercings1 or excessive masturbation.2 It is named for a Parisian venereologist who, in 1883, differentiated cases associated with alcoholism, diabetes, and immunocompromise from those associated with trauma to the urogenital tract caused by instrumentation, ligation of the foreskin (for enuresis or to avoid pregnancy), or placement of foreign bodies within the urethra. (At the time, Fournier implored clinicians to obtain confessions of “obscene practices” from patients.3)
This case raises three points:
Address all patient complaints in the history, physical, and disposition. Force yourself to do this to avoid dismissing a symptom that does not fit neatly into your perception of the puzzle. Here, the first clinician did not address the complaint of rectal pain at all, choosing to focus on the patient’s headache—and by so doing, missed the diagnosis. Don’t blow off the symptom: Divergent complaints require investigation.
Next, don’t skip difficult exams just because they are unpleasant or a “time burglar.” On my first day as a student in clinical rotations, I saw a patient with right upper quadrant abdominal pain and a perfect story for biliary colic. As fast as my overstuffed short coat could carry me, I rushed out to present the case. The attending asked, “Rectal?” I replied that I felt the presentation was clear enough to defer. His response? One of those pearls of wisdom you keep with you for your entire career: “There are two occasions you don’t need to perform a rectal examination on a patient with abdominal pain.” He paused as I prepared to take notes in the blank pages of my copy of Scut Monkey, then continued, “If you don’t have a finger, or the patient doesn’t have an anus.” I unclicked my pen and prepared for my humbling return trip to the patient, hoping I would be vindicated because the patient, in fact, did not have an anus. Alas, this was not the case, and I became a better clinician that day for it.
Humor aside, the attending’s point was valid. The echo of that voice has compelled me to argue against that time-conscious demon on my shoulder whispering: “Just write ‘deferred,’ just write ‘deferred.’”
Let’s be honest: The rectal exam is not pleasant for anyone, patient or clinician. Because of the explanation required, it is moderately time consuming; it is uncomfortable; and it may require the burden of finding a chaperone. You must locate fecal occult blood test cards and lubricant (which is never where it is supposed to be). Patients hate it; clinicians hate it—rectal deferred.
But in this case, “rectal deferred” resulted in a missed chance to pick up Fournier gangrene three days earlier—potentially sparing this patient substantial morbidity. The rectal exam likely would have revealed tenderness and referred pain suggestive of the primary acute underlying process. Don’t skip burdensome exams.
This plea goes for all time-intensive exams (pelvic, visual acuity for ocular complaints, etc), and carries over into making sure the patient is adequately undressed so you can conduct a proper examination. Don’t skip an exam that shouldn’t be skipped. Jurors will expect a full exam, and the plaintiff’s attorney will hammer you for shortcuts.
Lastly, consider symptoms individually, as unrelated entities, as well as together to explain a single disease. The concept of a synthesist versus reductionist applies. A synthesist or “lumper” seeks to explain signs and symptoms as related to one disease and “lumped” to a single diagnosis. A reductionist or “splitter” aims to separate symptoms into individual diagnoses. The respective questions: Could these complaints be related? Could this complaint be merely incidental to the patient’s other symptoms? Ask both.
The second clinician attempted to split the symptoms into a variety of diagnoses: dysuria, tinea cruris, “probable exposure to a sexually transmitted disease,” and abdominal pain. The result of oversplitting was a missed opportunity for a diagnosis.
Is a good clinician a “lumper” or a “splitter”? It seems the best are both and will constantly switch back and forth between possibilities, viewing a constellation of symptoms through both lumper and splitter diagnostic lenses.
In this case, a lumper may have viewed the right lower quadrant pain, rectal pain, perineal erythema, and dysuria, as suggestive of a deeper intrapelvic process. The lumper would have difficulty accounting for headache, which can be split from the rest and on retrospect was incidental.
The case concluded with multiple defendants paying to settle the case. The defense verdict for the first hospitalist (who admitted the patient with cellulitis) may have been based on a short time interval between the hospitalist’s underdiagnosis and the correct definitive treatment.
In sum, in an acute setting, address all complaints. Don’t skip an exam just because it is a time burglar—time spent answering lawyer calls and attending depositions and trial is far greater. Consider using different diagnostic lenses to assess if a patient’s symptom complex can be explained by one diagnosis; but don’t be hidebound either—some symptoms are simply unrelated or incidental. —DML
References on next page >>
REFERENCES
1. Ekelius L, Björkman H, Kalin M, Fohlman J. Fournier’s gangrene after genital piercing. Scand J Infect Dis. 2004;36(8):610-612.
2. Heiner JD, Eng KD, Bialowas TA, Devita D. Fournier’s gangrene due to masturbation in an otherwise healthy male. Case Rep Emerg Med. 2012;2012:154025.
3. Pais VM Jr, Santora T, Rukstalis DB. Fournier Gangrene. Medscape. http://emedicine.med scape.com/article/2028899-overview. Accessed April 9, 2014.
In January 2008, a man presented to the emergency department (ED) of a Florida hospital with complaints of headache and rectal pain. He was seen by Dr. C., who did not perform a rectal exam and discharged the patient with a diagnosis of acute headache.
The following day, the man returned to the ED with right lower quadrant pain. He was evaluated by a PA, who noted painful urination and erythema in the groin. The PA diagnosed dysuria, tinea cruris, and “probable exposure to sexually transmitted disease.”
Two days later, the patient went to the ED again, complaining of severe bilateral abdominal pain, rectal and head pain, and shortness of breath. Dr. N. evaluated him and ordered labwork, including a complete blood count and d-dimer qualitative study, and CT of the pelvis. These revealed an elevated white blood cell count and extensive soft tissue emphysema in the pelvis. The radiologist reported concern about a “perineal soft tissue infectious process” and noted that he and another radiologist had reviewed the findings with an ED physician.
The following morning, Dr. O. assessed the patient and admitted him with a diagnosis of possible cellulitis. The patient was then transferred to another hospital.
The plaintiff filed a lawsuit claiming that he actually had a necrotizing infection and that the delay in diagnosis resulted in the development of disseminated intravascular coagulation with thrombocytopenia. The plaintiff required numerous surgeries and wide local debridement of the tissue of his perineum, scrotum, rectum, and preperitoneum. He developed multiple life-threatening complications, underwent hyperbaric oxygen therapy, endured five months of inpatient care, and required placement of a long-term colostomy.
The plaintiff’s initial claims included many defendants. Several settled for undisclosed amounts; others were dismissed. The action proceeded to trial against hospitalist Dr. O. and his medical practice.
Continue for outcome >>
OUTCOME
A defense verdict was returned. The defendants were granted fees and costs in the amount of $54,000.
COMMENT
This is a case of Fournier gangrene. We are not told the patient’s age, and we don’t know if he had a history of diabetes, alcoholism, or other factors that would have made the diagnosis of Fournier gangrene more likely.
Fournier gangrene, a life-threatening urosurgical emergency, is a necrotizing infection of the perineum caused by a mix of aerobic and anaerobic bacteria. It may be generally expected in immunocompromised patients. Less commonly, it affects otherwise healthy patients with urogenital trauma, such as piercings1 or excessive masturbation.2 It is named for a Parisian venereologist who, in 1883, differentiated cases associated with alcoholism, diabetes, and immunocompromise from those associated with trauma to the urogenital tract caused by instrumentation, ligation of the foreskin (for enuresis or to avoid pregnancy), or placement of foreign bodies within the urethra. (At the time, Fournier implored clinicians to obtain confessions of “obscene practices” from patients.3)
This case raises three points:
Address all patient complaints in the history, physical, and disposition. Force yourself to do this to avoid dismissing a symptom that does not fit neatly into your perception of the puzzle. Here, the first clinician did not address the complaint of rectal pain at all, choosing to focus on the patient’s headache—and by so doing, missed the diagnosis. Don’t blow off the symptom: Divergent complaints require investigation.
Next, don’t skip difficult exams just because they are unpleasant or a “time burglar.” On my first day as a student in clinical rotations, I saw a patient with right upper quadrant abdominal pain and a perfect story for biliary colic. As fast as my overstuffed short coat could carry me, I rushed out to present the case. The attending asked, “Rectal?” I replied that I felt the presentation was clear enough to defer. His response? One of those pearls of wisdom you keep with you for your entire career: “There are two occasions you don’t need to perform a rectal examination on a patient with abdominal pain.” He paused as I prepared to take notes in the blank pages of my copy of Scut Monkey, then continued, “If you don’t have a finger, or the patient doesn’t have an anus.” I unclicked my pen and prepared for my humbling return trip to the patient, hoping I would be vindicated because the patient, in fact, did not have an anus. Alas, this was not the case, and I became a better clinician that day for it.
Humor aside, the attending’s point was valid. The echo of that voice has compelled me to argue against that time-conscious demon on my shoulder whispering: “Just write ‘deferred,’ just write ‘deferred.’”
Let’s be honest: The rectal exam is not pleasant for anyone, patient or clinician. Because of the explanation required, it is moderately time consuming; it is uncomfortable; and it may require the burden of finding a chaperone. You must locate fecal occult blood test cards and lubricant (which is never where it is supposed to be). Patients hate it; clinicians hate it—rectal deferred.
But in this case, “rectal deferred” resulted in a missed chance to pick up Fournier gangrene three days earlier—potentially sparing this patient substantial morbidity. The rectal exam likely would have revealed tenderness and referred pain suggestive of the primary acute underlying process. Don’t skip burdensome exams.
This plea goes for all time-intensive exams (pelvic, visual acuity for ocular complaints, etc), and carries over into making sure the patient is adequately undressed so you can conduct a proper examination. Don’t skip an exam that shouldn’t be skipped. Jurors will expect a full exam, and the plaintiff’s attorney will hammer you for shortcuts.
Lastly, consider symptoms individually, as unrelated entities, as well as together to explain a single disease. The concept of a synthesist versus reductionist applies. A synthesist or “lumper” seeks to explain signs and symptoms as related to one disease and “lumped” to a single diagnosis. A reductionist or “splitter” aims to separate symptoms into individual diagnoses. The respective questions: Could these complaints be related? Could this complaint be merely incidental to the patient’s other symptoms? Ask both.
The second clinician attempted to split the symptoms into a variety of diagnoses: dysuria, tinea cruris, “probable exposure to a sexually transmitted disease,” and abdominal pain. The result of oversplitting was a missed opportunity for a diagnosis.
Is a good clinician a “lumper” or a “splitter”? It seems the best are both and will constantly switch back and forth between possibilities, viewing a constellation of symptoms through both lumper and splitter diagnostic lenses.
In this case, a lumper may have viewed the right lower quadrant pain, rectal pain, perineal erythema, and dysuria, as suggestive of a deeper intrapelvic process. The lumper would have difficulty accounting for headache, which can be split from the rest and on retrospect was incidental.
The case concluded with multiple defendants paying to settle the case. The defense verdict for the first hospitalist (who admitted the patient with cellulitis) may have been based on a short time interval between the hospitalist’s underdiagnosis and the correct definitive treatment.
In sum, in an acute setting, address all complaints. Don’t skip an exam just because it is a time burglar—time spent answering lawyer calls and attending depositions and trial is far greater. Consider using different diagnostic lenses to assess if a patient’s symptom complex can be explained by one diagnosis; but don’t be hidebound either—some symptoms are simply unrelated or incidental. —DML
References on next page >>
REFERENCES
1. Ekelius L, Björkman H, Kalin M, Fohlman J. Fournier’s gangrene after genital piercing. Scand J Infect Dis. 2004;36(8):610-612.
2. Heiner JD, Eng KD, Bialowas TA, Devita D. Fournier’s gangrene due to masturbation in an otherwise healthy male. Case Rep Emerg Med. 2012;2012:154025.
3. Pais VM Jr, Santora T, Rukstalis DB. Fournier Gangrene. Medscape. http://emedicine.med scape.com/article/2028899-overview. Accessed April 9, 2014.
In January 2008, a man presented to the emergency department (ED) of a Florida hospital with complaints of headache and rectal pain. He was seen by Dr. C., who did not perform a rectal exam and discharged the patient with a diagnosis of acute headache.
The following day, the man returned to the ED with right lower quadrant pain. He was evaluated by a PA, who noted painful urination and erythema in the groin. The PA diagnosed dysuria, tinea cruris, and “probable exposure to sexually transmitted disease.”
Two days later, the patient went to the ED again, complaining of severe bilateral abdominal pain, rectal and head pain, and shortness of breath. Dr. N. evaluated him and ordered labwork, including a complete blood count and d-dimer qualitative study, and CT of the pelvis. These revealed an elevated white blood cell count and extensive soft tissue emphysema in the pelvis. The radiologist reported concern about a “perineal soft tissue infectious process” and noted that he and another radiologist had reviewed the findings with an ED physician.
The following morning, Dr. O. assessed the patient and admitted him with a diagnosis of possible cellulitis. The patient was then transferred to another hospital.
The plaintiff filed a lawsuit claiming that he actually had a necrotizing infection and that the delay in diagnosis resulted in the development of disseminated intravascular coagulation with thrombocytopenia. The plaintiff required numerous surgeries and wide local debridement of the tissue of his perineum, scrotum, rectum, and preperitoneum. He developed multiple life-threatening complications, underwent hyperbaric oxygen therapy, endured five months of inpatient care, and required placement of a long-term colostomy.
The plaintiff’s initial claims included many defendants. Several settled for undisclosed amounts; others were dismissed. The action proceeded to trial against hospitalist Dr. O. and his medical practice.
Continue for outcome >>
OUTCOME
A defense verdict was returned. The defendants were granted fees and costs in the amount of $54,000.
COMMENT
This is a case of Fournier gangrene. We are not told the patient’s age, and we don’t know if he had a history of diabetes, alcoholism, or other factors that would have made the diagnosis of Fournier gangrene more likely.
Fournier gangrene, a life-threatening urosurgical emergency, is a necrotizing infection of the perineum caused by a mix of aerobic and anaerobic bacteria. It may be generally expected in immunocompromised patients. Less commonly, it affects otherwise healthy patients with urogenital trauma, such as piercings1 or excessive masturbation.2 It is named for a Parisian venereologist who, in 1883, differentiated cases associated with alcoholism, diabetes, and immunocompromise from those associated with trauma to the urogenital tract caused by instrumentation, ligation of the foreskin (for enuresis or to avoid pregnancy), or placement of foreign bodies within the urethra. (At the time, Fournier implored clinicians to obtain confessions of “obscene practices” from patients.3)
This case raises three points:
Address all patient complaints in the history, physical, and disposition. Force yourself to do this to avoid dismissing a symptom that does not fit neatly into your perception of the puzzle. Here, the first clinician did not address the complaint of rectal pain at all, choosing to focus on the patient’s headache—and by so doing, missed the diagnosis. Don’t blow off the symptom: Divergent complaints require investigation.
Next, don’t skip difficult exams just because they are unpleasant or a “time burglar.” On my first day as a student in clinical rotations, I saw a patient with right upper quadrant abdominal pain and a perfect story for biliary colic. As fast as my overstuffed short coat could carry me, I rushed out to present the case. The attending asked, “Rectal?” I replied that I felt the presentation was clear enough to defer. His response? One of those pearls of wisdom you keep with you for your entire career: “There are two occasions you don’t need to perform a rectal examination on a patient with abdominal pain.” He paused as I prepared to take notes in the blank pages of my copy of Scut Monkey, then continued, “If you don’t have a finger, or the patient doesn’t have an anus.” I unclicked my pen and prepared for my humbling return trip to the patient, hoping I would be vindicated because the patient, in fact, did not have an anus. Alas, this was not the case, and I became a better clinician that day for it.
Humor aside, the attending’s point was valid. The echo of that voice has compelled me to argue against that time-conscious demon on my shoulder whispering: “Just write ‘deferred,’ just write ‘deferred.’”
Let’s be honest: The rectal exam is not pleasant for anyone, patient or clinician. Because of the explanation required, it is moderately time consuming; it is uncomfortable; and it may require the burden of finding a chaperone. You must locate fecal occult blood test cards and lubricant (which is never where it is supposed to be). Patients hate it; clinicians hate it—rectal deferred.
But in this case, “rectal deferred” resulted in a missed chance to pick up Fournier gangrene three days earlier—potentially sparing this patient substantial morbidity. The rectal exam likely would have revealed tenderness and referred pain suggestive of the primary acute underlying process. Don’t skip burdensome exams.
This plea goes for all time-intensive exams (pelvic, visual acuity for ocular complaints, etc), and carries over into making sure the patient is adequately undressed so you can conduct a proper examination. Don’t skip an exam that shouldn’t be skipped. Jurors will expect a full exam, and the plaintiff’s attorney will hammer you for shortcuts.
Lastly, consider symptoms individually, as unrelated entities, as well as together to explain a single disease. The concept of a synthesist versus reductionist applies. A synthesist or “lumper” seeks to explain signs and symptoms as related to one disease and “lumped” to a single diagnosis. A reductionist or “splitter” aims to separate symptoms into individual diagnoses. The respective questions: Could these complaints be related? Could this complaint be merely incidental to the patient’s other symptoms? Ask both.
The second clinician attempted to split the symptoms into a variety of diagnoses: dysuria, tinea cruris, “probable exposure to a sexually transmitted disease,” and abdominal pain. The result of oversplitting was a missed opportunity for a diagnosis.
Is a good clinician a “lumper” or a “splitter”? It seems the best are both and will constantly switch back and forth between possibilities, viewing a constellation of symptoms through both lumper and splitter diagnostic lenses.
In this case, a lumper may have viewed the right lower quadrant pain, rectal pain, perineal erythema, and dysuria, as suggestive of a deeper intrapelvic process. The lumper would have difficulty accounting for headache, which can be split from the rest and on retrospect was incidental.
The case concluded with multiple defendants paying to settle the case. The defense verdict for the first hospitalist (who admitted the patient with cellulitis) may have been based on a short time interval between the hospitalist’s underdiagnosis and the correct definitive treatment.
In sum, in an acute setting, address all complaints. Don’t skip an exam just because it is a time burglar—time spent answering lawyer calls and attending depositions and trial is far greater. Consider using different diagnostic lenses to assess if a patient’s symptom complex can be explained by one diagnosis; but don’t be hidebound either—some symptoms are simply unrelated or incidental. —DML
References on next page >>
REFERENCES
1. Ekelius L, Björkman H, Kalin M, Fohlman J. Fournier’s gangrene after genital piercing. Scand J Infect Dis. 2004;36(8):610-612.
2. Heiner JD, Eng KD, Bialowas TA, Devita D. Fournier’s gangrene due to masturbation in an otherwise healthy male. Case Rep Emerg Med. 2012;2012:154025.
3. Pais VM Jr, Santora T, Rukstalis DB. Fournier Gangrene. Medscape. http://emedicine.med scape.com/article/2028899-overview. Accessed April 9, 2014.
Why Punching a Window Is Never a Good Idea
In September 2007, a 23-year-old man drank a six-pack of beer, had an argument with his girlfriend, and punched a plate-glass window with both fists. He sustained lacerations to his right arm. The man removed a large piece of glass from his arm, resulting in significant bleeding. He then wrapped a belt around his arm to stop the blood flow and went to the emergency department of the local hospital, where he was treated by Dr. S.
Dr. S. removed glass fragments from the patient’s arm, sutured it, and instructed him to follow up with his family physician in one to two weeks. When the patient saw another clinician, Dr. A., for suture removal, he reported worsening neurologic symptoms in his right arm. An appointment with an orthopedist was made, which the patient subsequently canceled.
About two months later, a retained glass fragment was removed by orthopedist Dr. R. The plaintiff alleged negligence by Dr. S. for his failure to remove all the glass fragments at the initial presentation. The plaintiff claimed that as a result he suffered a median nerve injury.
The defendant claimed that the nerve injury was most likely inflicted when the plaintiff removed the piece of glass himself before going to the hospital. The defendant also claimed that the plaintiff had been negligent in his failure to seek follow-up treatment as recommended. The defendant further maintained that the physician who removed the retained glass fragment had not determined it to be in the proximity of the median nerve.
Continue for the outcome...
OUTCOME
A jury returned a verdict for the plaintiff that totaled $460,595. The defendant filed a motion for judgment notwithstanding the verdict and for a new trial. A confidential settlement was reached prior to a hearing on the motion.
Continue for David Lang's comments...
COMMENT
Patients and jurors expect foreign bodies to be discovered and removed with 100% precision. However, any clinician who has removed a foreign body knows that trying to locate one can be difficult under the best of circumstances.
Further, in cases in which a foreign body is not near a sensitive structure and is not likely to cause additional injury, removal may not be indicated (eg, retained bullet fragments not near a joint). In this case, the foreign body is glass and the location is described as the “arm,” which in all likelihood means the proximal forearm. So we have a potentially sharp item contained within a small space holding many sensitive structures.
Apparently, radiographs were not obtained. While some foreign bodies are radiolucent and generally considered “invisible,” glass is not necessarily one of them. There is a myth that glass is never visible on x-ray and another that glass is visible on x-ray only if there is sufficient “lead content” in it to make it so. Contrary to these beliefs, glass may be visible on standard x-ray, whether or not there is lead in it.
Here, it would have been reasonable to obtain radiographs to identify foreign bodies prior to closing the wound. The glass may have been visible and if detected, the emergency physician could have made a decision either to remove the glass or refer the patient if it was located deeply, next to a sensitive structure. Despite radiographic and physical exam findings, it is always important to remind patients that retained foreign bodies are possible and that follow-up is required. Schedule follow-up and document what the patient was told.
But what about foreign bodies that are almost always radiolucent on a standard film? Wood can be maddening: invisible on x-ray and hard to remove because unlike glass, metal, or stone, there is no confirming “scratch” or “clink” when wood is contacted with a localizing needle. Wood is also virtually guaranteed to suppurate if not removed.
Radiolucent or radiopaque is often considered an inherent quality of an object. But what is visible and what is invisible depends on radiographic technique. For foreign bodies generally considered radiolucent (eg, wood), consider a “soft-tissue technique,” which may demonstrate the foreign body, particularly if it is relatively large. While a positive image can be helpful, a negative one cannot rule out the presence of a foreign body. If available, ultrasound is also useful in detecting radiolucent foreign bodies and should be exploited by those skilled in its use.
In sum, jurors hate foreign bodies left in patients, be they items left in after surgery or not removed following an injury. Do your best, while explaining the limitations of removal efforts and the need for follow-up in complicated cases and self-monitoring in all cases. Instruct patients to return promptly for worsening signs and symptoms. Document that you informed the patient that 100% removal is never guaranteed and that they have agreed to return as scheduled or as needed. —DML
In September 2007, a 23-year-old man drank a six-pack of beer, had an argument with his girlfriend, and punched a plate-glass window with both fists. He sustained lacerations to his right arm. The man removed a large piece of glass from his arm, resulting in significant bleeding. He then wrapped a belt around his arm to stop the blood flow and went to the emergency department of the local hospital, where he was treated by Dr. S.
Dr. S. removed glass fragments from the patient’s arm, sutured it, and instructed him to follow up with his family physician in one to two weeks. When the patient saw another clinician, Dr. A., for suture removal, he reported worsening neurologic symptoms in his right arm. An appointment with an orthopedist was made, which the patient subsequently canceled.
About two months later, a retained glass fragment was removed by orthopedist Dr. R. The plaintiff alleged negligence by Dr. S. for his failure to remove all the glass fragments at the initial presentation. The plaintiff claimed that as a result he suffered a median nerve injury.
The defendant claimed that the nerve injury was most likely inflicted when the plaintiff removed the piece of glass himself before going to the hospital. The defendant also claimed that the plaintiff had been negligent in his failure to seek follow-up treatment as recommended. The defendant further maintained that the physician who removed the retained glass fragment had not determined it to be in the proximity of the median nerve.
Continue for the outcome...
OUTCOME
A jury returned a verdict for the plaintiff that totaled $460,595. The defendant filed a motion for judgment notwithstanding the verdict and for a new trial. A confidential settlement was reached prior to a hearing on the motion.
Continue for David Lang's comments...
COMMENT
Patients and jurors expect foreign bodies to be discovered and removed with 100% precision. However, any clinician who has removed a foreign body knows that trying to locate one can be difficult under the best of circumstances.
Further, in cases in which a foreign body is not near a sensitive structure and is not likely to cause additional injury, removal may not be indicated (eg, retained bullet fragments not near a joint). In this case, the foreign body is glass and the location is described as the “arm,” which in all likelihood means the proximal forearm. So we have a potentially sharp item contained within a small space holding many sensitive structures.
Apparently, radiographs were not obtained. While some foreign bodies are radiolucent and generally considered “invisible,” glass is not necessarily one of them. There is a myth that glass is never visible on x-ray and another that glass is visible on x-ray only if there is sufficient “lead content” in it to make it so. Contrary to these beliefs, glass may be visible on standard x-ray, whether or not there is lead in it.
Here, it would have been reasonable to obtain radiographs to identify foreign bodies prior to closing the wound. The glass may have been visible and if detected, the emergency physician could have made a decision either to remove the glass or refer the patient if it was located deeply, next to a sensitive structure. Despite radiographic and physical exam findings, it is always important to remind patients that retained foreign bodies are possible and that follow-up is required. Schedule follow-up and document what the patient was told.
But what about foreign bodies that are almost always radiolucent on a standard film? Wood can be maddening: invisible on x-ray and hard to remove because unlike glass, metal, or stone, there is no confirming “scratch” or “clink” when wood is contacted with a localizing needle. Wood is also virtually guaranteed to suppurate if not removed.
Radiolucent or radiopaque is often considered an inherent quality of an object. But what is visible and what is invisible depends on radiographic technique. For foreign bodies generally considered radiolucent (eg, wood), consider a “soft-tissue technique,” which may demonstrate the foreign body, particularly if it is relatively large. While a positive image can be helpful, a negative one cannot rule out the presence of a foreign body. If available, ultrasound is also useful in detecting radiolucent foreign bodies and should be exploited by those skilled in its use.
In sum, jurors hate foreign bodies left in patients, be they items left in after surgery or not removed following an injury. Do your best, while explaining the limitations of removal efforts and the need for follow-up in complicated cases and self-monitoring in all cases. Instruct patients to return promptly for worsening signs and symptoms. Document that you informed the patient that 100% removal is never guaranteed and that they have agreed to return as scheduled or as needed. —DML
In September 2007, a 23-year-old man drank a six-pack of beer, had an argument with his girlfriend, and punched a plate-glass window with both fists. He sustained lacerations to his right arm. The man removed a large piece of glass from his arm, resulting in significant bleeding. He then wrapped a belt around his arm to stop the blood flow and went to the emergency department of the local hospital, where he was treated by Dr. S.
Dr. S. removed glass fragments from the patient’s arm, sutured it, and instructed him to follow up with his family physician in one to two weeks. When the patient saw another clinician, Dr. A., for suture removal, he reported worsening neurologic symptoms in his right arm. An appointment with an orthopedist was made, which the patient subsequently canceled.
About two months later, a retained glass fragment was removed by orthopedist Dr. R. The plaintiff alleged negligence by Dr. S. for his failure to remove all the glass fragments at the initial presentation. The plaintiff claimed that as a result he suffered a median nerve injury.
The defendant claimed that the nerve injury was most likely inflicted when the plaintiff removed the piece of glass himself before going to the hospital. The defendant also claimed that the plaintiff had been negligent in his failure to seek follow-up treatment as recommended. The defendant further maintained that the physician who removed the retained glass fragment had not determined it to be in the proximity of the median nerve.
Continue for the outcome...
OUTCOME
A jury returned a verdict for the plaintiff that totaled $460,595. The defendant filed a motion for judgment notwithstanding the verdict and for a new trial. A confidential settlement was reached prior to a hearing on the motion.
Continue for David Lang's comments...
COMMENT
Patients and jurors expect foreign bodies to be discovered and removed with 100% precision. However, any clinician who has removed a foreign body knows that trying to locate one can be difficult under the best of circumstances.
Further, in cases in which a foreign body is not near a sensitive structure and is not likely to cause additional injury, removal may not be indicated (eg, retained bullet fragments not near a joint). In this case, the foreign body is glass and the location is described as the “arm,” which in all likelihood means the proximal forearm. So we have a potentially sharp item contained within a small space holding many sensitive structures.
Apparently, radiographs were not obtained. While some foreign bodies are radiolucent and generally considered “invisible,” glass is not necessarily one of them. There is a myth that glass is never visible on x-ray and another that glass is visible on x-ray only if there is sufficient “lead content” in it to make it so. Contrary to these beliefs, glass may be visible on standard x-ray, whether or not there is lead in it.
Here, it would have been reasonable to obtain radiographs to identify foreign bodies prior to closing the wound. The glass may have been visible and if detected, the emergency physician could have made a decision either to remove the glass or refer the patient if it was located deeply, next to a sensitive structure. Despite radiographic and physical exam findings, it is always important to remind patients that retained foreign bodies are possible and that follow-up is required. Schedule follow-up and document what the patient was told.
But what about foreign bodies that are almost always radiolucent on a standard film? Wood can be maddening: invisible on x-ray and hard to remove because unlike glass, metal, or stone, there is no confirming “scratch” or “clink” when wood is contacted with a localizing needle. Wood is also virtually guaranteed to suppurate if not removed.
Radiolucent or radiopaque is often considered an inherent quality of an object. But what is visible and what is invisible depends on radiographic technique. For foreign bodies generally considered radiolucent (eg, wood), consider a “soft-tissue technique,” which may demonstrate the foreign body, particularly if it is relatively large. While a positive image can be helpful, a negative one cannot rule out the presence of a foreign body. If available, ultrasound is also useful in detecting radiolucent foreign bodies and should be exploited by those skilled in its use.
In sum, jurors hate foreign bodies left in patients, be they items left in after surgery or not removed following an injury. Do your best, while explaining the limitations of removal efforts and the need for follow-up in complicated cases and self-monitoring in all cases. Instruct patients to return promptly for worsening signs and symptoms. Document that you informed the patient that 100% removal is never guaranteed and that they have agreed to return as scheduled or as needed. —DML
Failure to Manage Hand Infection Results in Disability
A 50-year-old man sustained a rope-burn injury to his left hand during a fishing trip in early August 2004. He subsequently presented to an orthopedic facility with complaints of a hand infection and was eventually referred to orthopedic surgeon Dr. W.
One week later, Dr. W administered a steroid injection, which caused the infection to worsen. The patient claimed that the steroid injection was contraindicated by the underlying infection. Dr. W referred the patient to Dr. C for infectious disease management.
In November 2004, Dr. W performed an incision and drainage procedure, and specimens were sent for pathology study and cultures. The pathology results were sent to both Dr. W and Dr. C, but the culture results were sent only to Dr. W. Other specimens were sent for culture in November 2004 and January 2005.
The results from the first culture, received by Dr. W in three reports, indicated “Mycobacterium,” “rare presumptive Mycobacterium marinum,” and “Myocbacterium marinum.” Dr. W did not forward these results to Dr. C and allegedly did not review the last report. Dr. C treated the plaintiff for a fungal infection based on the results of the second culture. After the third specimen in January 2005 grew acid-fast bacilli, Dr. C was informed that the patient likely had an infection caused by M. marinum.
The patient alleged that the 44-day delay in diagnosis and treatment of the M. marinum infection allowed the infection to worsen. The patient was hospitalized for one week at a major clinic and underwent three debridement surgeries to his left hand. He subsequently underwent five months of physical therapy and received long-term intravenous antibiotics for the infection.
The patient lacks full range of motion in his hand and is unable to fully open the fingers or make a tight fist. He has a trigger finger, surgical scars, and painful nodules. The hand is also extremely intolerant to temperature. The plaintiff claimed that the debridement surgeries would have been unnecessary if the initial culture reports had been acted upon in a timely manner.
The defendants claimed Dr. W saw no evidence of infection at the first office visit and that there was no sign of infection when the steroid injection was administered. The defendants claimed that the hand’s condition did not worsen after the injection and that the plaintiff was referred to Dr. C when a second fishing trip led to a flare-up that eluded diagnosis. Dr. W maintained that, during the procedure that produced the first cultures, he instructed the circulating nurse to have all lab results sent to both himself and Dr. C. Dr. W believed that Dr. C had been sent the results when he saw both their names on the pathology reports.
Continue reading to see the outcome...
OUTCOME
A $215,000 verdict was returned. The surgical center at which the procedure was performed that produced the first culture settled prior to trial for $200,000.
Continue reading for David M. Lang's commentary...
COMMENT
This case raises three issues:
First, hand infections can be problematic and are often trivialized by the initially consulted clinician. The presentation of certain hand infections, such as paronychiae and felons, generally will be straightforward. Paronychiae are usually managed by the clinician who first sees the patient. Felon management is more difficult, but it still may be drained in ambulatory settings by experienced clinicians. Deeper and more troublesome infections of the hand should raise immediate concern; these include tendon sheath infection, septic arthritis, and deep space hand infections. Hand cases can become complicated, and prompt referral to a specialist is usually warranted for all but the most basic infections.
Second, clinicians must always be on the lookout for important clues pointing to an oddball cause. Here, the overlooked clue was the significance of the patient’s fishing trip. While M. marinum seems obscure, the specific bacteria is known to cause tendon sheath infections when a patient’s hand is punctured by fish spines or when a simple wound is contaminated with stagnant water in nature or from an aquarium.1 Many of us are familiar with the fungal infection sporotrichosis, which can occur after a gardener is stuck by a rose thorn. Asking about a patient’s hobbies and activities may provide a context for an injury.
Third, communication breakdown is something clinicians often just don’t “get.” After receiving the culture report, the orthopedist should have called the infectious diseases physician to discuss the unusual case. This is particularly true in light of the fact that the orthopedic surgeon injected the hand with steroids, which may have worsened the patient’s condition. Jurors would have the expectation that the case would be followed closely. Everyone is busy, but unusual cases such as this one require a quick call to help the patient and avert liability. Pick up the phone.
Furthermore, the defense strategy here seems misplaced. The defense argued that the orthopedic surgeon saw no evidence of infection but administered a steroid injection for inflammation. But how can you tell the difference from external observation alone? We’ve all been trained in the classic signs and symptoms of calor (heat), dolor (pain), rubor (redness), and tumor (swelling). But both infectious and noninfectious inflammation will produce these, so the cause would not be readily distinguishable without further investigation.
In sum, take hand infections seriously. Thanks to television shows such as House, lay jurors expect clinicians to puzzle together facts to arrive at an obscure diagnosis. So, before we discharge a patient with a common condition, it is useful to ask about the patient’s job and hobbies. We might also ask the generic question “Were you doing anything unusual?” You may just save a patient and solve a puzzle at the same time.
Finally, communication with other clinicians in complicated cases is required and expected by jurors. —DML
Reference
1. American Society for Surgery of the Hand. Hand infections. www.assh.org/Public/HandConditions/Pages/HandInfections.aspx. Accessed January 9, 2014.
A 50-year-old man sustained a rope-burn injury to his left hand during a fishing trip in early August 2004. He subsequently presented to an orthopedic facility with complaints of a hand infection and was eventually referred to orthopedic surgeon Dr. W.
One week later, Dr. W administered a steroid injection, which caused the infection to worsen. The patient claimed that the steroid injection was contraindicated by the underlying infection. Dr. W referred the patient to Dr. C for infectious disease management.
In November 2004, Dr. W performed an incision and drainage procedure, and specimens were sent for pathology study and cultures. The pathology results were sent to both Dr. W and Dr. C, but the culture results were sent only to Dr. W. Other specimens were sent for culture in November 2004 and January 2005.
The results from the first culture, received by Dr. W in three reports, indicated “Mycobacterium,” “rare presumptive Mycobacterium marinum,” and “Myocbacterium marinum.” Dr. W did not forward these results to Dr. C and allegedly did not review the last report. Dr. C treated the plaintiff for a fungal infection based on the results of the second culture. After the third specimen in January 2005 grew acid-fast bacilli, Dr. C was informed that the patient likely had an infection caused by M. marinum.
The patient alleged that the 44-day delay in diagnosis and treatment of the M. marinum infection allowed the infection to worsen. The patient was hospitalized for one week at a major clinic and underwent three debridement surgeries to his left hand. He subsequently underwent five months of physical therapy and received long-term intravenous antibiotics for the infection.
The patient lacks full range of motion in his hand and is unable to fully open the fingers or make a tight fist. He has a trigger finger, surgical scars, and painful nodules. The hand is also extremely intolerant to temperature. The plaintiff claimed that the debridement surgeries would have been unnecessary if the initial culture reports had been acted upon in a timely manner.
The defendants claimed Dr. W saw no evidence of infection at the first office visit and that there was no sign of infection when the steroid injection was administered. The defendants claimed that the hand’s condition did not worsen after the injection and that the plaintiff was referred to Dr. C when a second fishing trip led to a flare-up that eluded diagnosis. Dr. W maintained that, during the procedure that produced the first cultures, he instructed the circulating nurse to have all lab results sent to both himself and Dr. C. Dr. W believed that Dr. C had been sent the results when he saw both their names on the pathology reports.
Continue reading to see the outcome...
OUTCOME
A $215,000 verdict was returned. The surgical center at which the procedure was performed that produced the first culture settled prior to trial for $200,000.
Continue reading for David M. Lang's commentary...
COMMENT
This case raises three issues:
First, hand infections can be problematic and are often trivialized by the initially consulted clinician. The presentation of certain hand infections, such as paronychiae and felons, generally will be straightforward. Paronychiae are usually managed by the clinician who first sees the patient. Felon management is more difficult, but it still may be drained in ambulatory settings by experienced clinicians. Deeper and more troublesome infections of the hand should raise immediate concern; these include tendon sheath infection, septic arthritis, and deep space hand infections. Hand cases can become complicated, and prompt referral to a specialist is usually warranted for all but the most basic infections.
Second, clinicians must always be on the lookout for important clues pointing to an oddball cause. Here, the overlooked clue was the significance of the patient’s fishing trip. While M. marinum seems obscure, the specific bacteria is known to cause tendon sheath infections when a patient’s hand is punctured by fish spines or when a simple wound is contaminated with stagnant water in nature or from an aquarium.1 Many of us are familiar with the fungal infection sporotrichosis, which can occur after a gardener is stuck by a rose thorn. Asking about a patient’s hobbies and activities may provide a context for an injury.
Third, communication breakdown is something clinicians often just don’t “get.” After receiving the culture report, the orthopedist should have called the infectious diseases physician to discuss the unusual case. This is particularly true in light of the fact that the orthopedic surgeon injected the hand with steroids, which may have worsened the patient’s condition. Jurors would have the expectation that the case would be followed closely. Everyone is busy, but unusual cases such as this one require a quick call to help the patient and avert liability. Pick up the phone.
Furthermore, the defense strategy here seems misplaced. The defense argued that the orthopedic surgeon saw no evidence of infection but administered a steroid injection for inflammation. But how can you tell the difference from external observation alone? We’ve all been trained in the classic signs and symptoms of calor (heat), dolor (pain), rubor (redness), and tumor (swelling). But both infectious and noninfectious inflammation will produce these, so the cause would not be readily distinguishable without further investigation.
In sum, take hand infections seriously. Thanks to television shows such as House, lay jurors expect clinicians to puzzle together facts to arrive at an obscure diagnosis. So, before we discharge a patient with a common condition, it is useful to ask about the patient’s job and hobbies. We might also ask the generic question “Were you doing anything unusual?” You may just save a patient and solve a puzzle at the same time.
Finally, communication with other clinicians in complicated cases is required and expected by jurors. —DML
Reference
1. American Society for Surgery of the Hand. Hand infections. www.assh.org/Public/HandConditions/Pages/HandInfections.aspx. Accessed January 9, 2014.
A 50-year-old man sustained a rope-burn injury to his left hand during a fishing trip in early August 2004. He subsequently presented to an orthopedic facility with complaints of a hand infection and was eventually referred to orthopedic surgeon Dr. W.
One week later, Dr. W administered a steroid injection, which caused the infection to worsen. The patient claimed that the steroid injection was contraindicated by the underlying infection. Dr. W referred the patient to Dr. C for infectious disease management.
In November 2004, Dr. W performed an incision and drainage procedure, and specimens were sent for pathology study and cultures. The pathology results were sent to both Dr. W and Dr. C, but the culture results were sent only to Dr. W. Other specimens were sent for culture in November 2004 and January 2005.
The results from the first culture, received by Dr. W in three reports, indicated “Mycobacterium,” “rare presumptive Mycobacterium marinum,” and “Myocbacterium marinum.” Dr. W did not forward these results to Dr. C and allegedly did not review the last report. Dr. C treated the plaintiff for a fungal infection based on the results of the second culture. After the third specimen in January 2005 grew acid-fast bacilli, Dr. C was informed that the patient likely had an infection caused by M. marinum.
The patient alleged that the 44-day delay in diagnosis and treatment of the M. marinum infection allowed the infection to worsen. The patient was hospitalized for one week at a major clinic and underwent three debridement surgeries to his left hand. He subsequently underwent five months of physical therapy and received long-term intravenous antibiotics for the infection.
The patient lacks full range of motion in his hand and is unable to fully open the fingers or make a tight fist. He has a trigger finger, surgical scars, and painful nodules. The hand is also extremely intolerant to temperature. The plaintiff claimed that the debridement surgeries would have been unnecessary if the initial culture reports had been acted upon in a timely manner.
The defendants claimed Dr. W saw no evidence of infection at the first office visit and that there was no sign of infection when the steroid injection was administered. The defendants claimed that the hand’s condition did not worsen after the injection and that the plaintiff was referred to Dr. C when a second fishing trip led to a flare-up that eluded diagnosis. Dr. W maintained that, during the procedure that produced the first cultures, he instructed the circulating nurse to have all lab results sent to both himself and Dr. C. Dr. W believed that Dr. C had been sent the results when he saw both their names on the pathology reports.
Continue reading to see the outcome...
OUTCOME
A $215,000 verdict was returned. The surgical center at which the procedure was performed that produced the first culture settled prior to trial for $200,000.
Continue reading for David M. Lang's commentary...
COMMENT
This case raises three issues:
First, hand infections can be problematic and are often trivialized by the initially consulted clinician. The presentation of certain hand infections, such as paronychiae and felons, generally will be straightforward. Paronychiae are usually managed by the clinician who first sees the patient. Felon management is more difficult, but it still may be drained in ambulatory settings by experienced clinicians. Deeper and more troublesome infections of the hand should raise immediate concern; these include tendon sheath infection, septic arthritis, and deep space hand infections. Hand cases can become complicated, and prompt referral to a specialist is usually warranted for all but the most basic infections.
Second, clinicians must always be on the lookout for important clues pointing to an oddball cause. Here, the overlooked clue was the significance of the patient’s fishing trip. While M. marinum seems obscure, the specific bacteria is known to cause tendon sheath infections when a patient’s hand is punctured by fish spines or when a simple wound is contaminated with stagnant water in nature or from an aquarium.1 Many of us are familiar with the fungal infection sporotrichosis, which can occur after a gardener is stuck by a rose thorn. Asking about a patient’s hobbies and activities may provide a context for an injury.
Third, communication breakdown is something clinicians often just don’t “get.” After receiving the culture report, the orthopedist should have called the infectious diseases physician to discuss the unusual case. This is particularly true in light of the fact that the orthopedic surgeon injected the hand with steroids, which may have worsened the patient’s condition. Jurors would have the expectation that the case would be followed closely. Everyone is busy, but unusual cases such as this one require a quick call to help the patient and avert liability. Pick up the phone.
Furthermore, the defense strategy here seems misplaced. The defense argued that the orthopedic surgeon saw no evidence of infection but administered a steroid injection for inflammation. But how can you tell the difference from external observation alone? We’ve all been trained in the classic signs and symptoms of calor (heat), dolor (pain), rubor (redness), and tumor (swelling). But both infectious and noninfectious inflammation will produce these, so the cause would not be readily distinguishable without further investigation.
In sum, take hand infections seriously. Thanks to television shows such as House, lay jurors expect clinicians to puzzle together facts to arrive at an obscure diagnosis. So, before we discharge a patient with a common condition, it is useful to ask about the patient’s job and hobbies. We might also ask the generic question “Were you doing anything unusual?” You may just save a patient and solve a puzzle at the same time.
Finally, communication with other clinicians in complicated cases is required and expected by jurors. —DML
Reference
1. American Society for Surgery of the Hand. Hand infections. www.assh.org/Public/HandConditions/Pages/HandInfections.aspx. Accessed January 9, 2014.
Was Suicide Attempt Foreseeable?
In 2009, a 14-year-old Michigan boy entered a home-based, nonhospital treatment program for at-risk teens. His family was concerned about his mental health, as he had been caught smoking marijuana. He was also being treated for depression by a psychiatrist from the program’s administrating facility.
While enrolled in the program, the patient tried to hang himself but was discovered by his mother before death occurred. He was taken to a hospital, where marijuana and lysergic acid amide (LSA) were found in his system. Since the teen kept a morning glory plant in his bedroom, it was surmised that he had sucked on its seeds to achieve an LSD-like high. It was believed that the depressant effect experienced as he came down off the drug triggered suicidal feelings.
As a result of oxygen deprivation, the patient was rendered quadriplegic. He was unable to walk, talk, or feed himself. He died in 2012, at age 17.
The plaintiffs claimed that the defendants failed to properly diagnose, monitor, and treat their son and that he had been placed in the program in order to prevent what ultimately happened. The defendants denied any negligence.
Outcome
A $5.5 million verdict was returned.
Comment
Suicide can be difficult to predict, yet we are often called upon to do just that. For clinicians working in the emergency department or urgent care settings, the likelihood of encountering at-risk patients is higher.
Liability in this case turns on whether the suicide attempt was reasonably foreseeable. We have a 14-year-old boy smoking marijuana and being treated as an outpatient for depression. There was no history of prior hospitalization, personality or thought disorder, suicidal ideation, or prior suicide attempt. Apart from the marijuana, there was no history of substance abuse (since the morning glory seed use was not discovered until after the suicide attempt).
Based on this information, would a reasonably prudent clinician detect the imminent suicide risk that ended this patient’s life? Those inclined to answer “Yes” should be prepared to state precisely what evidence was used to arrive at this conclusion. Hindsight bias may allow us to see trouble brewing in this case but will do little to form a workable standard for every depressed teenager who uses marijuana.
That being said, suicide must be taken seriously: It is the third leading cause of death among persons ages 15 to 24 and the second leading cause of death among those ages 25 to 34. Among 15- to 24-year-olds, suicide accounts for 20% of all deaths annually.1 Suicide also carries high malpractice risk, and failure to prevent suicide is the most common claim against mental health professionals.2 Non–mental health clinicians also face liability exposure, but are often less equipped to recognize and deal with imminent psychiatric events.
Psychiatry is not an exact science. For clinicians accustomed to acting on hard evidence, psychiatry can be frustratingly “squishy.” The terminology can be misused, and the diagnosis subject to interobserver differences. There are no binary tests to “rule out” conditions and no therapeutic ranges within which we can feel safe. So what can we do?
First, we can double down on the structure that is there. Be familiar with the operative Diagnostic and Statistical Manual of Mental Disorders (DSM, now in its fifth revision), or have a reference handy. Use all diagnostic terms according to the framework in the DSM; a plaintiff’s attorney will pick apart careless diagnoses, and jurors will expect clinicians to be precise.
Second, have an approach for addressing suicidality (and homocidality) forthrightly. Consider using a suicide screening tool in cases where there is a coexisting concern (eg, substance use, scholastic difficulty, traumatic life event). A screening tool may protect the patient and be helpful from a legal standpoint for the clinician. For example, the Columbia-Suicide Severity Rating Scale (C-SSRS) has been demonstrated to provide improved assessment of suicide risk.3
Use of a generally accepted screening tool may have several advantages. It demonstrates concern for the patient and a willingness to take suicidality seriously. It also prompts the uncertain clinician on how to proceed in unfamiliar waters. Furthermore, a properly executed tool will likely be respected by jurors when used in conjunction with the clinician’s demonstrated concern and judgment. Obviously, such a tool should be used as a floor, not a ceiling; where the answers on a rating scale look “good” but clinical concern remains, good clinical judgment should prevail.
In this case, there were no facts disclosed that suggested imminent suicide risk, so it seems hard to fault the psychiatrist and the treatment program for the tragic results. However, the jury expected them to do more.
Use of a screening tool in this case may have shown that the program had an organized plan to address suicide risk in these “at-risk” kids. It would have provided tangible documentation that suicide risk was considered and may have yielded an extra layer of defense against the claim that this patient’s suicide attempt was foreseeable. Most importantly, the tool may have actually saved the patient’s life by revealing his pain and suicidal thinking.
We have yet to discuss the most unusual aspect of this case: the use of morning glory flower seeds as a drug of abuse. Morning glory seeds contain LSA, which produces an effect similar to LSD. Generally, the user crushes or chews the seeds or extracts the LSA by soaking them in cold water. On consumption, the user experiences LSD-type hallucinations and may experience agitation, anxiety, and mood disturbances, including depression. Apparently, the jury was not persuaded that the morning glory seed abuse caused the patient’s suicide attempt.
In conclusion, take suicide seriously. Have a plan to manage at-risk patients. Document your concern, evaluation, and findings. Consider implementing a suicide screening tool in your practice to ensure the proper questions are asked, answered, and documented. —DML
REFERENCES
1. CDC. Suicide: facts at a glance (2012). www.cdc.gov/violenceprevention/pdf/suicide-datasheet-a.pdf. Accessed November 6, 2013.
2. Simpson S, Stacy M. Avoiding the malpractice snare: documenting suicide risk assessment. J Psychiatr Pract. 2004;10(3):185-189. www.reidpsychiatry.com/columns/Stacy%2005-04.pdf. Accessed November 15, 2013.
3. Posner K, Brown GK, Stanley B, et al. The Columbia–Suicide Severity Rating Scale: initial validity and internal consistency findings from three multisite studies with adolescents and adults. Am J Psychiatry. 2011;168:1266-1277.
In 2009, a 14-year-old Michigan boy entered a home-based, nonhospital treatment program for at-risk teens. His family was concerned about his mental health, as he had been caught smoking marijuana. He was also being treated for depression by a psychiatrist from the program’s administrating facility.
While enrolled in the program, the patient tried to hang himself but was discovered by his mother before death occurred. He was taken to a hospital, where marijuana and lysergic acid amide (LSA) were found in his system. Since the teen kept a morning glory plant in his bedroom, it was surmised that he had sucked on its seeds to achieve an LSD-like high. It was believed that the depressant effect experienced as he came down off the drug triggered suicidal feelings.
As a result of oxygen deprivation, the patient was rendered quadriplegic. He was unable to walk, talk, or feed himself. He died in 2012, at age 17.
The plaintiffs claimed that the defendants failed to properly diagnose, monitor, and treat their son and that he had been placed in the program in order to prevent what ultimately happened. The defendants denied any negligence.
Outcome
A $5.5 million verdict was returned.
Comment
Suicide can be difficult to predict, yet we are often called upon to do just that. For clinicians working in the emergency department or urgent care settings, the likelihood of encountering at-risk patients is higher.
Liability in this case turns on whether the suicide attempt was reasonably foreseeable. We have a 14-year-old boy smoking marijuana and being treated as an outpatient for depression. There was no history of prior hospitalization, personality or thought disorder, suicidal ideation, or prior suicide attempt. Apart from the marijuana, there was no history of substance abuse (since the morning glory seed use was not discovered until after the suicide attempt).
Based on this information, would a reasonably prudent clinician detect the imminent suicide risk that ended this patient’s life? Those inclined to answer “Yes” should be prepared to state precisely what evidence was used to arrive at this conclusion. Hindsight bias may allow us to see trouble brewing in this case but will do little to form a workable standard for every depressed teenager who uses marijuana.
That being said, suicide must be taken seriously: It is the third leading cause of death among persons ages 15 to 24 and the second leading cause of death among those ages 25 to 34. Among 15- to 24-year-olds, suicide accounts for 20% of all deaths annually.1 Suicide also carries high malpractice risk, and failure to prevent suicide is the most common claim against mental health professionals.2 Non–mental health clinicians also face liability exposure, but are often less equipped to recognize and deal with imminent psychiatric events.
Psychiatry is not an exact science. For clinicians accustomed to acting on hard evidence, psychiatry can be frustratingly “squishy.” The terminology can be misused, and the diagnosis subject to interobserver differences. There are no binary tests to “rule out” conditions and no therapeutic ranges within which we can feel safe. So what can we do?
First, we can double down on the structure that is there. Be familiar with the operative Diagnostic and Statistical Manual of Mental Disorders (DSM, now in its fifth revision), or have a reference handy. Use all diagnostic terms according to the framework in the DSM; a plaintiff’s attorney will pick apart careless diagnoses, and jurors will expect clinicians to be precise.
Second, have an approach for addressing suicidality (and homocidality) forthrightly. Consider using a suicide screening tool in cases where there is a coexisting concern (eg, substance use, scholastic difficulty, traumatic life event). A screening tool may protect the patient and be helpful from a legal standpoint for the clinician. For example, the Columbia-Suicide Severity Rating Scale (C-SSRS) has been demonstrated to provide improved assessment of suicide risk.3
Use of a generally accepted screening tool may have several advantages. It demonstrates concern for the patient and a willingness to take suicidality seriously. It also prompts the uncertain clinician on how to proceed in unfamiliar waters. Furthermore, a properly executed tool will likely be respected by jurors when used in conjunction with the clinician’s demonstrated concern and judgment. Obviously, such a tool should be used as a floor, not a ceiling; where the answers on a rating scale look “good” but clinical concern remains, good clinical judgment should prevail.
In this case, there were no facts disclosed that suggested imminent suicide risk, so it seems hard to fault the psychiatrist and the treatment program for the tragic results. However, the jury expected them to do more.
Use of a screening tool in this case may have shown that the program had an organized plan to address suicide risk in these “at-risk” kids. It would have provided tangible documentation that suicide risk was considered and may have yielded an extra layer of defense against the claim that this patient’s suicide attempt was foreseeable. Most importantly, the tool may have actually saved the patient’s life by revealing his pain and suicidal thinking.
We have yet to discuss the most unusual aspect of this case: the use of morning glory flower seeds as a drug of abuse. Morning glory seeds contain LSA, which produces an effect similar to LSD. Generally, the user crushes or chews the seeds or extracts the LSA by soaking them in cold water. On consumption, the user experiences LSD-type hallucinations and may experience agitation, anxiety, and mood disturbances, including depression. Apparently, the jury was not persuaded that the morning glory seed abuse caused the patient’s suicide attempt.
In conclusion, take suicide seriously. Have a plan to manage at-risk patients. Document your concern, evaluation, and findings. Consider implementing a suicide screening tool in your practice to ensure the proper questions are asked, answered, and documented. —DML
REFERENCES
1. CDC. Suicide: facts at a glance (2012). www.cdc.gov/violenceprevention/pdf/suicide-datasheet-a.pdf. Accessed November 6, 2013.
2. Simpson S, Stacy M. Avoiding the malpractice snare: documenting suicide risk assessment. J Psychiatr Pract. 2004;10(3):185-189. www.reidpsychiatry.com/columns/Stacy%2005-04.pdf. Accessed November 15, 2013.
3. Posner K, Brown GK, Stanley B, et al. The Columbia–Suicide Severity Rating Scale: initial validity and internal consistency findings from three multisite studies with adolescents and adults. Am J Psychiatry. 2011;168:1266-1277.
In 2009, a 14-year-old Michigan boy entered a home-based, nonhospital treatment program for at-risk teens. His family was concerned about his mental health, as he had been caught smoking marijuana. He was also being treated for depression by a psychiatrist from the program’s administrating facility.
While enrolled in the program, the patient tried to hang himself but was discovered by his mother before death occurred. He was taken to a hospital, where marijuana and lysergic acid amide (LSA) were found in his system. Since the teen kept a morning glory plant in his bedroom, it was surmised that he had sucked on its seeds to achieve an LSD-like high. It was believed that the depressant effect experienced as he came down off the drug triggered suicidal feelings.
As a result of oxygen deprivation, the patient was rendered quadriplegic. He was unable to walk, talk, or feed himself. He died in 2012, at age 17.
The plaintiffs claimed that the defendants failed to properly diagnose, monitor, and treat their son and that he had been placed in the program in order to prevent what ultimately happened. The defendants denied any negligence.
Outcome
A $5.5 million verdict was returned.
Comment
Suicide can be difficult to predict, yet we are often called upon to do just that. For clinicians working in the emergency department or urgent care settings, the likelihood of encountering at-risk patients is higher.
Liability in this case turns on whether the suicide attempt was reasonably foreseeable. We have a 14-year-old boy smoking marijuana and being treated as an outpatient for depression. There was no history of prior hospitalization, personality or thought disorder, suicidal ideation, or prior suicide attempt. Apart from the marijuana, there was no history of substance abuse (since the morning glory seed use was not discovered until after the suicide attempt).
Based on this information, would a reasonably prudent clinician detect the imminent suicide risk that ended this patient’s life? Those inclined to answer “Yes” should be prepared to state precisely what evidence was used to arrive at this conclusion. Hindsight bias may allow us to see trouble brewing in this case but will do little to form a workable standard for every depressed teenager who uses marijuana.
That being said, suicide must be taken seriously: It is the third leading cause of death among persons ages 15 to 24 and the second leading cause of death among those ages 25 to 34. Among 15- to 24-year-olds, suicide accounts for 20% of all deaths annually.1 Suicide also carries high malpractice risk, and failure to prevent suicide is the most common claim against mental health professionals.2 Non–mental health clinicians also face liability exposure, but are often less equipped to recognize and deal with imminent psychiatric events.
Psychiatry is not an exact science. For clinicians accustomed to acting on hard evidence, psychiatry can be frustratingly “squishy.” The terminology can be misused, and the diagnosis subject to interobserver differences. There are no binary tests to “rule out” conditions and no therapeutic ranges within which we can feel safe. So what can we do?
First, we can double down on the structure that is there. Be familiar with the operative Diagnostic and Statistical Manual of Mental Disorders (DSM, now in its fifth revision), or have a reference handy. Use all diagnostic terms according to the framework in the DSM; a plaintiff’s attorney will pick apart careless diagnoses, and jurors will expect clinicians to be precise.
Second, have an approach for addressing suicidality (and homocidality) forthrightly. Consider using a suicide screening tool in cases where there is a coexisting concern (eg, substance use, scholastic difficulty, traumatic life event). A screening tool may protect the patient and be helpful from a legal standpoint for the clinician. For example, the Columbia-Suicide Severity Rating Scale (C-SSRS) has been demonstrated to provide improved assessment of suicide risk.3
Use of a generally accepted screening tool may have several advantages. It demonstrates concern for the patient and a willingness to take suicidality seriously. It also prompts the uncertain clinician on how to proceed in unfamiliar waters. Furthermore, a properly executed tool will likely be respected by jurors when used in conjunction with the clinician’s demonstrated concern and judgment. Obviously, such a tool should be used as a floor, not a ceiling; where the answers on a rating scale look “good” but clinical concern remains, good clinical judgment should prevail.
In this case, there were no facts disclosed that suggested imminent suicide risk, so it seems hard to fault the psychiatrist and the treatment program for the tragic results. However, the jury expected them to do more.
Use of a screening tool in this case may have shown that the program had an organized plan to address suicide risk in these “at-risk” kids. It would have provided tangible documentation that suicide risk was considered and may have yielded an extra layer of defense against the claim that this patient’s suicide attempt was foreseeable. Most importantly, the tool may have actually saved the patient’s life by revealing his pain and suicidal thinking.
We have yet to discuss the most unusual aspect of this case: the use of morning glory flower seeds as a drug of abuse. Morning glory seeds contain LSA, which produces an effect similar to LSD. Generally, the user crushes or chews the seeds or extracts the LSA by soaking them in cold water. On consumption, the user experiences LSD-type hallucinations and may experience agitation, anxiety, and mood disturbances, including depression. Apparently, the jury was not persuaded that the morning glory seed abuse caused the patient’s suicide attempt.
In conclusion, take suicide seriously. Have a plan to manage at-risk patients. Document your concern, evaluation, and findings. Consider implementing a suicide screening tool in your practice to ensure the proper questions are asked, answered, and documented. —DML
REFERENCES
1. CDC. Suicide: facts at a glance (2012). www.cdc.gov/violenceprevention/pdf/suicide-datasheet-a.pdf. Accessed November 6, 2013.
2. Simpson S, Stacy M. Avoiding the malpractice snare: documenting suicide risk assessment. J Psychiatr Pract. 2004;10(3):185-189. www.reidpsychiatry.com/columns/Stacy%2005-04.pdf. Accessed November 15, 2013.
3. Posner K, Brown GK, Stanley B, et al. The Columbia–Suicide Severity Rating Scale: initial validity and internal consistency findings from three multisite studies with adolescents and adults. Am J Psychiatry. 2011;168:1266-1277.