Medical Malpractice Bulletin – September/October, 2011

Perspective: Door-to-needle times for tPA in stroke hard to meet

By Charles A. Pilcher MD FACEP
September/October, 2011

Under current guidelines from the American Stroke Association, tissue plasminogen activator (tPA, commonly known as a “clot buster” drug) should be administered within 3-4.5 hours of “last seen normal” – and 1 hour of patient arrival – to potentially ameliorate a new onset stroke. While tPA remains the standard of care, outcomes are not guaranteed and risks are significant. Every case is different. Reducing the time needed to deliver clot-busting tPA to patients with ischemic stroke is critical. To read “the rest of the story,” click HERE.

Did the doctor see that? Audit trails of EMR metadata provide compelling record of “if and when”
Many malpractice cases hinge on the question of “Did a practitioner actually see an item in question, and if so, did he/she act on it. As electronic medical records evolve and become more common, these questions are readily answered. Every EMR keeps a record of who accessed a chart, what part, and when. While accessing the data may require a forensic IT specialists, a simple request for production may be sufficient. A few EMR’s may have the option of disabling the audit trail or metadata – a bad idea – and another article addresses that.

How can you sue when records are missing? Indiana high court limits liability for lost medical records.
An Indiana hospital was unable to find important portions of the medical record of a patient experiencing birth complications. The Supreme Court recently ruled against the plaintiff who had sued the hospital in a separate action for this failure, saying that “health records maintenance is considered the practice of medicine, and plaintiffs suing for medical negligence cannot bring a separate action over the loss of the documents.” This appears to have been an effort to bypass caps on malpractice suits, but it does raise questions. Will court sanctions for lost records be sufficient? What prevents records of bad outcomes from being routinely destroyed? A portion of the answer may lie in jury instructions, which allow a jury to presume that the lost evidence was unfavorable.

Expert witnesses on trial
“State legislators, physician organizations and courts are taking steps to ensure that the experts provide ethical and appropriate testimony,” writes Alicia Gallegos in AMA News. At least 30 states have laws governing expert witnesses, and courts also are taking stronger stances against questionable experts. For example, high courts in Arizona and Maryland in 2009 upheld as constitutional state restrictions against expert witnesses. Among the positions adopted are:

  • restricting the use of expert witnesses in Florida to those who are certified
  • requiring experts in Arizona and Minnesota to practice in the same specialty as the physician defendant
  • mandating that Maryland witnesses actually spend time actively practicing medicine
  • investigating complaints and publishing testimony provided by physician witnesses (AAEM)
  • disciplining doctors who provide unethical testimony (Mississippi, North Carolina, and many other State medical boards, as well as neurology and neurosurgery specialty associations)

The AMA in June approved a report outlining model legislation for expert witnesses that requires experience in the same discipline as the defendant, board certification, or a significant recent teaching role at an accredited medical school.

Preventable mistakes kill 34 in Oregon hospitals in 2010.
According to data from the Oregon Patient Safety Commission published by the Portland Oregonian, preventable errors led to 34 deaths in Oregon hospitals in 2010, the same number as in 2009. If aviation had this kind of record, how many people would still fly?

Bitten by orca? No problem. New medical billing codes include bizarre injuries.
The new ICD-10 (International Classification of Diseases) codes used by doctors and hospitals for billing for their work are coming soon. “There’s a code for that” is likely to become the new catch phrase. “Bitten by orca – initial encounter” could only be confused with “Bitten by orca – subsequent encounter.” Or was it a sea lion? How about a “turtle bite” – or was it actually a “tortoise”? Perhaps one is injured by a burning water ski. Yup. There’s a code for that. Medical coders will soon be able to specify whether someone was injured by walking into a lamppost, or it falling on them. While crocheting? Or was it knitting? Playing the piano, or worse yet, vacuuming? Injured in a chicken coop, opera house or prison kitchen? Crushed by an alligator? Blown apart by a letter bomb? Not a problem. The federally-mandated codes will be increasing from the current 18,000 to over 140,000.


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