Medical Malpractice Bulletin – May, 2012

Perspective: Cauda equina lawsuits: Gambling or litigating?
By Charles A. Pilcher MD FACEP
May, 2012

Pursuing or defending a case of cauda equina syndrome (CES) is as much a matter for the daring gambler as the skilled litigator. If it were your nerves being pinched off by a herniated disk, would you want to wait up to 2 days to have the pressure removed? Well, 48 hours seems to be the cutoff point at which plaintiffs more often prevail. To read more, click here.

Also in this issue:

Radiologist: Handmaiden or consultant?
An upcoming issue of Renal & Urology News  will discuss an example in its “Legal Issues in Medicine” column. A urologist insisted on IV contrast in evaluating an ER patient with a suspected kidney stone. The radiologist objected, telling the urologist [correctly, in this editor’s opinion/CP] that CT without contrast is the standard of care. But the radiologist capitulated, and the patient died of anaphylactic shock from the IV contrast. Radiologists are consultants, and physicians should listen to their opinion when referring to them. And if the consultant recommends a course of action, e.g., an alternate study, a confirmatory study, or a repeat study at a certain time, the physician who doesn’t follow the consultant’s advice does so at his/her peril.  In a poll accompanying the article, 80% of physicians said that a radiologist had challenged an order. [Editor’s Note: Hopefully, every “challenge” is met with an introspective discussion, and the referring physician should listen up.]

EMRs: Full of impersonal information
This editor has written repeatedly that the EMR is a billing and compliance document, not one designed to convey helpful patient information or support communication amongst colleagues and caregivers. The wheat is always getting lost in the chaff. Here’s another. [Editor’s Note: In my experience, plaintiff’s generally have the advantage when an EMR is involved, unless a well-reasoned “cover note” further documents the doctor/patient or nurse/patient interaction.]

Should medical students be liable for malpractice?
Arizona has proposed exempting medical students from liability in malpractice suits. To read more, click here. [Editor’s Note: The comments section is interesting, though a bit of a slog, especially those of one chronic commentator.]

Guidelines: Now it’s the PSA test causing a flap
Dentists in Oregon can’t decide which guidelines to follow regarding dental xrays of asymptomatic patients: those of the Oregon Dental Association (q 6 months) or those of their national group (up to q 3 years). Last year the issue was screening mammograms. Now it’s the PSA test for prostate cancer. There is a big difference between screening asymptomatic individuals and diagnostic testing of symptomatic or high-risk individuals. “Preventive” testing often leads to greater morbidity and mortality than no screening at all. [Editor’s Note: This publication has twice published essays on the value of “Guidelines.” To view, click here and here.]

Diagnostic imaging does not reduce “negative appendectomy rate” in children under 5
A recent article in Pediatrics reports that the negative appendectomy rate (NAR) is the same whether or not a child has a CT or US study. The study of  55,227 children with appendicitis found an overall NAR of 3.6%. The NAR for children UNDER 5 years was 16.8% for boys and 14.6% for girls, with a rate of 4.8% for girls OVER 10 years. The NAR was only 1.2% for boys OVER 5 years based on clinical judgment alone, with NO diagnostic imaging. [Editor’s note: These were probably “obvious” cases.] Diagnostic imaging studies reduced the NAR for all ages and genders EXCEPT for children under 5 years. [Editor’s Note: More interesting would be an analysis of the “Ruptured Appendix Rate”(RAR), which remains high enough that missing the diagnosis of appendicitis is not definitive evidence of substandard care.]

Antibiotics may help avoid appendectomy
In more news about appendicitis, an April study by Varadhan et al. in BMJ reports that a course of antibiotics may be just as good as surgery in an analysis of 900 patients with uncomplicated appendicitis. Sixty-three percent of the “antibiotic only” patients needed no further treatment after a year,  and had 31% fewer complications than those having surgery. Twenty percent eventually had surgery, 85% of those without perforation or advanced disease. The rate of perforation was similar in both groups. An accompanying editorial pointed out that “using antibiotics for initial treatment has some disadvantages, including the need for delayed appendectomy in some patients with persistent symptoms, the 20% chance of recurrence within the first year, which may be unacceptable, and the need to perform CT in all patients to rule out perforated appendicitis before starting antibiotics.” [Editor’s Note: Again, the treatment of appendicitis is not as straightforward as it may seem. A “Perspective” article on missed appendicitis can be found here.]

No cancer in removed prostate, but urologist fails to tell patient
A urologist performed an appropriate radical prostatectomy on a patient with a biopsy showing high grade cancer. However, no cancer was found in the removed prostate. Fearing the patient’s reaction, the urologist did not tell the patient and continued to monitor him for 5 years as if he had cancer. When the patient later moved, saw another doctor, and discovered the truth, a lawsuit ensued and a settlement reached. The issue: Treating for 5 years without informed consent. The point: It may be difficult, but honesty is always the best policy.

3 articles from Medscape for the physican being sued
Medscape recently published 3 short powerpoint type articles designed to help physicians deal with a malpractice suit. (Registration – free – is required to view them, but Medscape is a link that all medical malpractice attorneys should have on their computer desktop anyway.)

For additional enlightenment:
Speaking of difficult disclosures…. What’s it like for a physician to make “the call.”
It’s definitely better to be the giver of bad news than the recipient of bad news, but it’s not easy for either party. Read this short essay to learn what a doctor feels just before calling a patient to report bad news.
When things go wrong: Sue? Or just trash the ER?
One could argue that our method of resolving bad outcomes is better than some of the alternatives, like trashing the ER.
Man unhappy after “Mr. H*ppy” stays happy for 20 months, sues BMW
A man alleges the close proximity of a certain body part to a motorcycle seat manufactured by BMW caused his unit to stay in an upright position for nearly two years. [Editor’s Note: I have yet to encounter an ER doc who has seen anyone complaining that “it’s been longer than 4 hours and I’m supposed to see a doctor.”]

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