Medical Malpractice Bulletin – October, 2013

Perspective: Stop! Think! Listen! “Cognitvie Pause” can reduce medical error
By Charles A. Pilcher MD FACEP
October, 2013

Most medical errors are caused not by lack of knowledge or an obvious mistake, but rather by thinking errors. These result in mis-interpreting the patient’s presentation as something more common, when unusual symptoms should give the physician pause. When the pattern doesn’t completely fit, when one or more symptoms or signs suggest something isn’t right, it’s time for a “cognitive pause” to give the brain an opportunity to “reboot.” Most ED docs experience such a situation only a couple times a shift. Acknowledging one’s incomplete comfort with a diagnosis is the key step, followed by a brief consideration of more serious alternatives. Taking an extra 5 minutes per shift to do this can keep a doc out of court for a lifetime. More ->

More on stroke: Spinning the news like a top

Early treatment with tPA works best (duh). This article in Stroke says that treatment within 90 minutes is the best. But the report is a great example of “spin” in stroke studies, with selection bias playing a huge role.  The biggest confounder in this study is the fact that many “early” strokes turn out to be TIA’s and not strokes. Another report in Lancet headlines only the “good news,” i.e., patients may do better if they survive, but “…[T]hrombolysis with intravenous alteplase for acute ischaemic stroke does not affect survival.” And check out last month’s “Perspective” for more on the subject.

Refusing tPA requires informed consent: Coulon v Creel – Louisiana

The wife of a 65 year old man heard him fall and found him on the floor 15 minutes later with slurred speech and right arm paralysis. Within the next 90 minutes, he was seen in the ED, a radiologist  confirmed a CVA on CT scan, and he was admitted. He sued for failure to give tPA AND for failure to give informed consent about tPA. The jury found no medical malpractice, but awarded $150,000 for failure to give informed consent. [Editor’s Note: Specific cases are usually not a subject of this newsletter, but this one is novel. Source: malpractice email alert. No further information.]

Physician leaders, supervisors, at greater legal risk; communications faiures cited

Alicia Gallegos wrote a nice summary in American Medical News of the extra risks incurred by physician supervisors and team leaders in med mal suits. Recent research highlights the effect failed teamwork can have on care. A 2013 Joint Commission report found that poor leadership was involved in 901 sentinel events investigated, and poor communications in 59%. “When health care team members drop the ball, it’s often doctors who end up in court.”

How to be a good expert witness. Or not.

Two recent articles advise physicians on the roles and responsibilities of an expert witness. Both have a predilection for being a defense expert. The first, by Louise Andrew, MD JD, senior member of ACEP’s Medical Legal Committee is Part III of a series, and is entitled The Enemy Should Not Be Us! We Have Met the Enemy. The second, by Ralph Caldroney MD appeared in Medical Economics. The latter article is sort of a primer on what to expect as one begins working as an “expert” for attorneys, again with an emphasis on working for the defense. For those who are curious, there are several included Tables that provide information on the rates charged by experts and the total costs billed by experts per case. Interestingly, the ACEP article says that about 1/3 of emergency physicians surveyed report serving as an expert witness. Guidelines provided by ACEP for expert witnesses can be found here and the “Expert Witness Reaffirmation Statement” here.

How expert is your expert? What is “Scientific Evidence?”

Finally, for your “I can’t sleep” reading pleasure, you may wish to check out the latest edition of the Reference Manual on Scientific Evidence. Both judges and attorneys must decide what scientific and technical information is admissible. This manual, produced by the Federal Judicial Center and the National Academies of Science following “Daubert v. Merrell Dow” in 1993 will help.


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