Medical Malpractice Bulletin – March 2012

Perspective: What is a “reasonable and prudent” physician?
It seems such a simple question: Given a specific set of facts concerning the presentation of a patient in the ED, what would the prudent and reasonable physician do? In this month’s guest “Perspective,” Dr. Mark Plaster takes a look at why the “best” care need not be the standard for the “reasonable and prudent” physician. More ->

Maryland hospitals recommend malpractice attorneys
Some 2 dozen Maryland hospitals including the University of Maryland Medical System are referring injured patients to plaintiff lawyers. The goal is to  settle claims more quickly, a potential benefit to both the patient and the institution. Despite the appearance of a conflict of interest, it is not unethical by ABA guidelines. [Editor’s note: I have been told by both plaintiff and defense med-mal attorneys that it is always best to have a well-qualified opponent. Whether this system assures that or not remains an open question.]

Discharge instructions: Patients get them, but do they GET them?
While every patient discharged from the ED should receive instructions on followup care, not all understand those instructions. This was discussed in a “Perspective” in the August 2011 issue of this Bulletin. Now, Bogenstatter et al. have reinforced previous studies in finding that only 43% of patients left the ED correctly informed about diagnosis, planned examinations and followup. They correctly recalled 82% of information received about diagnosis, 56% about examinations planned and 72% about follow-up treatments. Information related to medication was most often forgotten or misunderstood. Despite this lack of comprehension, patient satisfaction was high (4.7 on a 5-point scale).

Providing futile care is not malpractice
Some have argued that providing care when there is no expectation of value is malpractice. In a NY case, an obstetrician performing an emergency C-Section after a sudden fetal demise could not be sued for attempting to save the baby’s life. Suit was filed against the hospital for the demise, but also against the operating surgeon for attempting an “unnecessary procedure.” The defendant doctor, acting only in the emergency, had not been involved in events leading up to the demise. The latter claim was dismissed, with the court deciding that the defendant surgeon “could not have concluded the fetus was beyond help, based solely on the inability to detect a heartbeat.”

EMRs may create additional legal liability for physicians.
Here’s another article on the risks of EMRs in medical practice. Data breaches and audit trails  continue to take their toll, with the metadata sometimes helping, often hurting defendant physicians, and rapidly raising the costs of  discovery by forensic technicians. “Did the doctor actually see the lab results?” is now a provable question.

Physicians can be sued for just about anything

  • In February the Utah Supreme Court ruled that a physician may be sued for malpractice by a third-party. Children whose mother was shot by their father while he was on psychiatric medications sued the prescribing providers. The father, who is in jail, claimed “the medicine made me do it.” The Utah Medical Association responded, saying “Prescribing medication is not an exact science, especially when it comes to mental health. [This decision] fails to recognize no human brain is identical to another. What might be helpful and curative in 1,000 patients, could, in the case of one patient, be harmful.”
  • And in Pennsylvania, the Supreme Court ruled that physicians can be sued for infliction of nothing more than emotional distress. A woman who delivered a baby with multiple deformities after being told by her physician that an ultrasound showed a normal fetus was allowed to pursue her claim against the physician for emotional distress. Click here for court transcript.

Fortunately, neither ruling addresses the merits of the lawsuits themselves.

Malpractice payout stats for 2011
For a quick graphical overview of 2011 med mal payouts, prepared by Diederich Healthcare, click here.


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