Medical Malpractice Bulletin – June, 2014

In this issue:

Perspective: More tests ≠ “standard of care”

By Charles A. Pilcher MD FACEP

Sometimes doing nothing is the best care.

There is an increasing body of medical literature illustrating the limits – and dangers – of excessive testing. Too often our legal system assumes that if a doctor had done just “one more test,” the outcome would have been different. Yes, there are cases like that, but rarely is it the result of simply not doing the test. Most often a bad outcome in such situations is not from “not doing the test,” but rather from failing to consider the possibility that the test might be helpful, given the patient’s symptoms. It’s not that doctors are telling patients “you don’t need that test,” explaining their rationale, and making the patient their partner in the care. Rather, it is most often a “cognitive error” by the physician. More ->

Opportunities and challenges for attorneys in the ACA
A recent round table discussion at the Crittenden Medical Insurance Conference suggested five changes healthcare professionals can expect as a result of the Affordable Care Act:

  • Standard of care changes. ACA-driven quality metrics may alter the way “standard of care” plays out in the courtroom, for example in the definition and use of “guidelines.”
  • Vicarious liability. The need to manage more mid-level providers may present new risks.
  • Improper handoffs. Because more team-based care is anticipated there is concern that an increasing number of “handoffs” could result in more failed communications, despite efforts to better coordinate care.
  • Burnout. Higher patient volumes may over-burden caregivers, leading to increased medical error.
  • Deep pockets. ACO’s and other large networks might be seen as “deep pockets” that could be more vulnerable to lawsuits.
  • The full presentation is available here.

1 in 20 outpatients misdiagnosed
In a study published in BMJ Quality and Safety, Singh et al found tha 1 in 20 US adult outpatients experienced diagnostic errors, with up to half of the errors being potentially harmful. Missed diagnoses included pneumonia, renal failure, UTI’s, and cancer (prostate, colon, lung). Errors are felt to result from practice pressures, time constraints, and a chaotic practice environment. To read the study, click here.

Alabama: Brand drug manufacturers liable for claims of generic knockoffs
The Alabama Supreme Court has ruled in Wyeth v. Weeks that the original manufacturer of a drug is liable for the claims made by generic knockoffs, even when they did not produce the drug. The court found that the US Supreme Court decision in PLIVA v. Mensing pre-empted claims against manufacturers of generics. Commenting on this is way out of my league as a physician, but I found it fascinating that the FDA requires generic manufacturers to label their drugs exactly like those of the original patent holder, even if that information is incomplete or even erroneous. William H. Kitchens, a Georgia attorney, describes the situation in proper legal language here.

The fraudulent medical record: Anonymous ED scribe admits to over-documentation, over-billing
This publication has previously asked “How much can we trust the medical record?” Now, an ED scribe, writing in the well-respected blog admits in an anonymous post that the answer is “Not much.” He/she feels that he/she is essentially a part of a conspiracy to commit fraud by over-coding and over-billing for work not being done by his physician employers. Scribes make doctors more efficient, improve patient satisfaction scores, increase billing accuracy (in the absence of over-documentation), and thereby increase revenue for both the doctor and the hospital. Providing the documentation is true and reflects the work done. If not, the record is fradulent. He/she concludes with the observation that “if thousands of small lies are okay and never brought to light, how many bigger lies are out there?” The US OIG also has a report on the matter, stating that “CMS and its contractors have done almost nothing to address the problem of over-documentation in EHR’s. Finally, an article in Medical Economics addresses the issue of “cloning” medical records, another form of potential fraud.



Leave a Comment