Medical Malpractice Bulletin – January, 2012

As we begin a new year, I want to thank each you for your encouragement and support of the Medical Malpractice Bulletin, now entering its 4th year. I have enjoyed sharing this information with you and look forward to continuing to assist you in resolving issues related to medical malpractice and personal injury.
Charles A. Pilcher MD FACEP

In this issue:

Perspective: Who’s to blame when bad things happen?
This month’s guest “Perspective” is by Mark Plaster, MD, and was first published in Emergency Physicians Monthly, June 14, 2011. It is edited and reprinted with permission. The opinions expressed are those of Dr. Plaster and reflect his experience with a specific case example. Generalization is discouraged./CP

Over the years I’ve gotten many calls like this one. “Will you look at this case? Something very bad happened and I think someone screwed up.” I hate those calls.

The case that comes to mind was both heartbreaking and frightening. A healthy young Asian man, not yet 21, the pride and joy of his family, went to a local hospital ED with abdominal pain. After an evaluation that revealed nothing of substance, the EP decided to admit the patient. While treating his pain, he admitted to the parents that he wasn’t sure what was going on. After 15 hours in the ED complaining of severe, unrelenting pain, he suddenly and inexplicably died. Who’s to blame?

EMRs may increase malpractice risk
In my own case review experience, I have seen worrisome documentation appearing in electronic medical records (EMR) as the technology has evolved. EMRs provide no “color” to illustrate a physician-patient interaction and, though legible, make a malpractice case harder, rather than easier, to defend. A recent “white paper” by Anderson and Ozeran published by the AC Group thoroughly reviews several potential pitfalls these records present. Among them are:

  • too many “normal” indicators that may be “group checked” when an abnormality might actually exist
  • failure to check obviously abnormal findings, leading one to question the thoroughness of the exam
  • too focused on documentation for billing purposes rather than communicating medical information and thought processes
  • inability to provide drug or lab alerts
  • failure to create alerts for more frequent mammograms if a female patient has indicated that her mother has had breast cancer
  • inability to run drug interaction checks for prescriptions
  • ability to mine metadata and follow audit trails, perhaps proving that a chart or portion thereof was never accessed.

“Lack of informed consent” case still requires medical expert.
Apparently, some plaintiff attorneys, particularly in Ohio, thought that by claiming a patient had not been properly “consented” they could avoid a medical expert. The Ohio Supreme Court recently disagreed, saying that informed consent is an integral part of medical practice and that such cases must be supported by expert testimony before they can proceed to trial.

Effect of fatigue on performance
Fatigue may occasionally be alleged in a medical malpractice case. The case may involve the end of an emergency physician’s night shift, an OB doc doing her 7th delivery in 8 hours, or an on-call surgeon who has not slept in 24 hours. For a complete analysis of this issue prepared by the Joint Commission (formerly JCAHO) check out their “Sentinel Event Alert” for December 14, 2011, entitled “Health care worker fatigue and patient safety

The specialty and facility matters: Michigan Supreme Court remands malpractice case to Appeals Court
A Michigan Family Physician working in an Urgent Care Center was sued for malpractice. The trial court found in favor of the defendant physician. On appeal, plaintiff’s claim that the physician was actually practicing Emergency Medicine in an ER-equivalent prevailed. The Michigan Supreme Court then heard the case and remanded it back to the Appeals Court, stating that the court must consider that an Urgent Care Center is not an Emergency Department and that the physician was indeed practicing within the specialty of Family Medicine. More to come apparently.

Bitten by orca – initial encounter
A new billing and coding system, ICD-10, has been mandated to take effect in October, 2013. A recent article in the Wall Street Journal reviewed the system and found much unfathomable and absurd detail. The authors suggest that no reader should be left wondering why physicians’ and practice staffs’ are frustrated by the current health care system. Here’s an example – you decide:

  • Code W5621XA    Bitten by orca, initial encounter
  • Code W5621XD    Bitten by orca, subsequent encounter
  • Code W5621XS     Bitten by orca, sequela

Just how many orca bites might one suffer in one’s lifetime? Even a trainer at SeaWorld?

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