Medical Malpractice Bulletin – April, 2011

Proximate cause: No harm, no foul?
By Charles A. Pilcher MD FACEP

In the course of nearly 3 decades of reviewing medical records for both plaintiff and defense attorneys, I find the most challenging of the 4 elements necessary for a successful malpractice lawsuit to be “proximate cause” or “causation.” This is often the Achilles heel of malpractice for the plaintiff and his/her attorney, and salvation for the defendant physician. More ->

Also in this issue:

  • CT helps emergency physicians treat patients with abdominal pain
  • 292 retained foreign objects in surgical patients: New York, 2008-2009
  • More evidence suggesting appendectomy can be delayed
  • Hospitals often fail to notify patients of abnormal test results
  • Absolute vs relative risk: The Avandia controversy revisited
  • I’m a teacher. Don’t sue me, sue the school
  • Pitfalls of electronic health records (EHRs)
  • CT helps emergency physicians treat patients with abdominal pain.
    In the January Issue of this Bulletin was a reference to the fact that patients are 4 times more likely to believe a CT scan as to believe their doctor. Now, a study in American Journal of Roentgenology suggests the patients are probably right. The diagnosis for nearly half of the patients was changed after a CT scan, changed planned management, and reduced admissions by 17.5%.

    292 retained foreign objects in surgical patients: New York, 2008-2009
    Click here (pdf) for a fascinating analysis of the number and variety of foreign objects left in patients in NY State over a 2 year period. An html version is available here.

    More evidence suggesting appendectomy can be delayed
    There is increasing evidence that doctors need not rush to perform appendectomies. The data from several studies, and comments from several surgeons, is nicely summarized in a recent article in USA Today. Studies suggest it makes no difference if the surgery is done immediately or up to 24 hours later.

    Hospitals often fail to notify patients of abnormal test results.
    BMJ now publishes a Quality and Safety journal. In the February 7 edition, in the section entitled “Error Management,” Callen et al report that hospitals do not report to patients a significant number of important lab and x-ray findings. This failure “can have serious consequences for patients, including delayed or missed diagnoses and even death.”  After analyzing 12 studies, researchers “found that between 20 percent and 61 percent of inpatient test results, and between one percent and 75 percent of tests on emergency care patients, were not followed up after patients were discharged.” This has obvious implications for the risk of malpractice suits.

    Absolute vs relative risk: The Avandia controversy revisited
    While the media continues to tout the “dangers” of rosiglitazone (Avandia/GSK) when compared to pioglitazone (Actos/Takeda), the actual numbers are far less impressive. The reason: absolute vs relative risk. This newsletter published an essay on this  July 27, 2010. Now, a new meta-analysis combining the results of 16 prior studies of 800,000 patients is heralded as  showing a “modest [14%] but statistically significant increase” in the odds of certain heart-related mortality in those who took Avandia when compared to pioglitazone. That 14% is the relative risk. The actual numbers show 431 excess deaths for every 100,000 patients who receive rosiglitazone rather than pioglitazone. That’s the absolute risk, and it is only 0.4%. [Editor’s note: Sure, you don’t want to be one of the 4 excess deaths per 1000 patients taking the “dangerous” drug, but it may not be as dangerous as the media suggests.]

    I’m a teacher. Don’t sue me, sue the school
    The Ohio Supreme Court recently heard arguments in an Ohio medical malpractice case involving the University of Toledo College of Medicine and a surgeon who claims immunity from malpractice as an employee of the State. At the time of the alleged malpractice, a medical student whom the surgeon was mentoring was observing a vasectomy in the surgeon’s office. The surgeon claims the plaintiff can only seek damages from the university under Section 9.86 of the Ohio Revised Code, arguing that he was acting in his capacity as an employee of the University. [Editor’s note: Seems to me the answer is “follow the money.” If the surgeon, not the University, was billing the patient, the issue seems clear.]

    Pitfalls of electronic health records (EHRs)
    A letter by the editor of this Bulletin regarding the pitfalls of EHRs was recently published in Medical Economics. Click here to view (2nd letter in series).

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