Medical Malpractice Bulletin – January, 2014

Perspective: How do I find a good doctor?
By Charles A Pilcher MD FACEP
January, 2014

One of the toughest challenges for any health care provider is being asked by a friend or family member with a medical problem, “Who should I see for this?”

I have an answer. My fellow physicians have an answer. My nurse colleagues have an answer. Attorneys involved in medical malpractice, both plaintiff and defense, have an answer. But typically patients don’t have a clue.

When will the quality and safety of the care provided by practitioners be measured and made public so that patients really can find the “best doctor” for their ills? Here’s my thoughts ->

Cloning notes in an EMR leads to formal sanctions of physician.
The Washington State Medical Commission Winter Newsletter reports the case of a Seattle physician who was sanctioned for cloning medical records in a patient’s EMR. The record incorrectly indicated  a full examination was performed. Compounding the situation, this false report was perpetuated verbatim in the chart for 7 subsequent visits. From a med-mal perspective, cloned notes indicate poor record keeping, questionable ethics and integrity, potentially fraudulent billing practices, and lack of attention to detail. Any one of these practices makes the testimony of such a physician suspect in a med mal lawsuit. [Editor’s Note: This issue has been previously discussed in this Newsletter. See: Template Charts: The good, the bad and the uglyThe chart is my witness, and EMRs: Can we trust them?]

Surgical robots: Talented machines, but are the safe?
Dr. Jai Raman of Rush University has analyzed the data from the most recent FDA survey of mis-behaving robots, and finds a rising trend of injury and death since 2004. Adverse incident reports have doubled in the past year alone. The survey is available here. The FDA is striving to increase the reporting of adverse incidents related to surgical robots. Reporting is mandated for hospitals but reports are inconsistent; reporting by physicians is purely voluntary at this time. William Maisel of the FDA’s device unit said the higher number of adverse incident reports may reflect increasing use and attention for the robots. The issue was discussed in the mainstream media: Bloomberg News (12/30, Langreth), Wall Street Journal (11/8, Burton, Subscription Publication), and Bloomberg News (11/8, Langreth)

Physician judgment supported in WSMA amicus brief
Last month the WSMA, WSHA and the major physician insurer in Washington Stare filed an amicus curiae brief to the State Supreme Court to protect an important facet of medical malpractice defense: the “exercise of judgment” jury instruction. This allows a judge to inform a jury that a physician who exercises his/her judgment in arriving at a diagnosis, even if it is wrong, is not liable if he/she did so while exercising reasonable judgment with the “standard of care.”  The issue has arisen in 2 cases before the Supreme Court, Fergen v. Sestero and Appukutan v. Overlake, which challenge whether a judge could continue to give this instruction to a jury in a med mal case. The brief argues that medicine is an art, and that an incorrect choice of diagnosis or treatment is not necessarily a negligent choice. [Editor’s Note: Based on my experience in med mal cases, the question has always been about “standard of care” – what a reasonable and prudent physician would do under the same or similar circumstances – far more than about “judgment.”]

Mechanical thrombectomy in stroke patients: Crappy research. Crappier reporting.
The headline in MedPage Today says “Mechanical Thrombectomy May Be Beneficial After tPA Failure In Ischemic Stroke.” Really? A breakthrough? Or is the key word “may“? The study, presented to the World Congress of Neurology included only 23 patients. Second, while thrombectomy “led to good 3-month outcomes in most patients,” 6 of the 23 patients died during the study. Third, thrombectomy following failed tPA thrombolysis has already been proven useless in 3 prior studies. See reports in NEJM, the SWIFT trial in Lancet, and the TREVO2 trial, also in Lancet. Not surprisingly, sponsors of all the studies include manufacturers of thrombolytics and thrombectomy devices.

Research we’d like to believe:
1. Trying to lose weight? Would you rather play doubles tennis or have a romp in the hay? Thirty minutes of either activity burns about the same amount of calories, according to a “study” by Frappier et al.  
Peanut butter may be used to diagnose Alzheimer’s disease. OK, disregarding the above rant regarding small studies, here’s one that’s intriguing. A study (of less than 100 patients including controls) published in the Journal of Neurological Diseases found a correlation between Alzheimer’s Disease and one’s ability to detect the smell of peanut butter. Participants were asked to report how close to their nostril they first detected the aroma of 1 tbsp of peanut butter. Alzheimer’s patients had decreased smell in their L nostril (5 cm) versus the R nostril (17 cm). In controls or those with other forms of dementia, there was no difference. [Editor’s note: I’ll be amazed if this is confirmed by subsequent research.]



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