Medical Malpractice Bulletin – July/August, 2011

Perspective: Emergency Department discharge instructions: “Sign right here and your good to go.”
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By Charles A. Pilcher MD FACEP

So you’re not having a heart attack like your wife thought. That’s the good news. But what **is** wrong, what **did** cause that pain, and what should you do from here on out?

That’s the information that is supposed to be conveyed in discharge instructions, and it’s not enough for the ED staff to just print out some forms, say “sign here,” and send you on your way.

What constitutes good discharge instructions, and why are they critical in the decision to pursue or defend a malpractice case? More ->

Also in this issue:

Teamwork more important than alertness in major surgery (alerted by NY attorney Gerry Oginski)
Fatigue is commonly implicated as a source of medical and surgical error, with complications being more common during night time surgery than in the day. And, in 2003, a law was passed prohibiting doctors-in-training from working over 80 hours per week. However, a new study of nearly 30,000 heart and lung transplants suggests that fatigue can be mitigated if the physician is surrounded by a cohesive and supportive team. The authors found equal results when comparing late-night chest transplants to mid-day chest transplants. They surmise that “health care personnel involved in the transplant have developed various systems to prevent errors and directly cope with the limitations associated with nighttime medical care… [H]eart and lung transplant teams include surgeons, anesthesiologists, perfusionists, and operating room staff who work together routinely and can be mobilized rapidly for transplant operations. Such routine camaraderie and familiarity likely diminishes the novelty of the operation, lessening the burden and strain of the nighttime environment.”

Simpler “hands only” CPR now the standard
The American Heart Association has eliminated the need for mouth-to-mouth breathing as a component of CPR. The newer, simpler method is to use “chest compressions only” for victims of cardiac arrest. This should be done at a depth of about 2 inches at a rate of 100 beats per minute. That rate is the same as the beat of the BeeGees classic “Stayin’ Alive.” (Coincidentally, it is also the meter of the British rock band Queen’s  “Another One Bites the Dust.”)

Korean emergency physicians read 99.5% of x-rays correctly in minor trauma patients
In a Korean study of 10,243 minor trauma patients, the total “discrepancy rate” between the emergency physician’s reading of an x-ray and that of the over-reading radiologist was 0.77%. However, only 0.47% of the discrepancies were clinically significant. [Based on this editor’s experience, that is about the same as the rate at which the over-reading radiologist misses findings found by the emergency physician.]

Indiana court: New claims can’t be added to lawsuits after panel’s review
An Indiana plaintiff’s case was found to be without merit by a medical review panel. The patient chose to file suit despite the findings, but added 3 new claims in the lawsuit. This was challenged by the defense, and the Court of Appeals agreed, saying that all questions of the standard of care must be presented to the medical review panel first. The court ruled that “a malpractice plaintiff cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.”

“I want to apologize but my insurance carrier won’t let me
When reporting a potential claim to their insurance carriers, physicians are routinely told to stop all contact with the patient or their coverage will not apply. But studies show that a quick and sincere apology, an explanation of what happened, and an offer of settlement reduce the cost of malpractice significantly. A recent post by Kathleen Clark PhD on the highly respected blog of Kevin Pho, MD, addressed this issue. In a comment below the article, Martin Young MD described his experience like this: “I felt trapped behind a wall of silence that was created by my insurers. My instincts to right the wrongs as suggested in the post were forbidden by the only ones likely to profit from the situation – my lawyers! Damned if I do, damned if I don’t!!” Dr. Clark responded to Dr. Young’s comment, saying, “Did you tell your carrier that you wanted to have the conversation with the patient/family as quickly as possible to save them [from] waiting and wondering? The longer time goes by without that conversation/contact with the patient, the more resentment and mistrust grows and the more likely litigation will follow. In addition, it is your relationship with your patent that is being destroyed…. The culture of the carrier has to shift.”

Ohio court ruling may lead to more lawsuits against physicians
An Appeals Court in Ohio recently supported a trial court ruling allowing a patient to proceed with a lawsuit against a physician even though it had been over 10 years since the alleged act occurred. The State of Ohio’s “Statute of Repose” limits lawsuits to 4 years following the alleged act, and the “Statute of Limitations” says that the lawsuit must be filed within 1 year of discovery of the alleged act. The case involves a patient whose liver enzymes were abnormal in 1995, 1997, and 1998 but the patient was not informed. He was diagnosed with liver cancer and hepatitis C in 2008. If the ruling is supported by the Ohio Supreme Court, physicians worry that they will be exposed to “an endless risk of negligence claims.”

Physician can’t escape lawsuit by claiming medical student observing surgery made doctor an “arm of the state.”
This newsletter previously reported on an Ohio physician who was claiming to be immune from lawsuit because a University of Toledo medical student was observing the surgery in the doctor’s office at the time. He claimed he was acting as an “arm of the state,” and that the State of Ohio should be the defendant. The Ohio Supreme Court unanimously disagreed, allowing the suit against the surgeon to proceed.

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