Medical Malpractice Bulletin – February, 2017

Perspective: Why do orthopedists get sued?
By Charles A. Pilcher MD FACEP
February, 2017

In 2014 approximately 18% of orthopedists insured by The Doctors Company were named in a claim or a suit. To better understand what causes patient harm, what motivates a patient to pursue a claim and to learn from the analysis, Darrell Ranum, David Troxel and Robin Diamond studied and published a summary of closed claims against orthopedic surgeons. The study analyzed 1,895 claims from 2007–2014 and focused on:

  • an overview of the most common types of claims
  • expert insights into the specific elements that led to patient injury and
  • mitigation strategies

To read a summary of this study, including a link to guidelines from the American Academy of Orthopedic Surgeons regarding orthopedic surgery, click here ->

Cognitive Biases: Down the garden path to a lawsuit

We all make mistakes, and there are several reasons why, even when we have the knowledge and ability to think correctly. We do it because of “cognitive biases,” and almost every medical malpractice lawsuit includes evidence of at least one of them. This is especially true in cases of diagnostic error.  I have covered this topic in previous editions of this newsletter,  but it’s been a while and I thought you might like to see the list of the most common ones again. Here it is:

  • Anchoring bias – locking on to a diagnosis too early and failing to adjust to new information, aka “doorway diagnosis”
  • Availability bias – thinking that a similar recent presentation is happening in the present situation, as in “I just saw a patient like this yesterday.”
  • Confirmation bias – looking for evidence to support a pre-conceived opinion, rather than looking for information to prove oneself wrong, as in “That infiltrate on the chest x-ray is pneumonia, even though the patient has no cough or fever.”
  • Diagnosis momentum – accepting a previous diagnosis without sufficient skepticism, as in “The pregnancy test at the referring hospital was positive, so I we don’t have to worry about appendicitis.”
  • Overconfidence bias – Over-reliance on one’s own ability, intuition, and judgment, as in “I know you read it on the internet, but I’m the doctor and you aren’t having a heart attack.”
  • Premature closure – similar to “confirmation bias” but more “jumping to a conclusion,” as in finding a rib fracture on the x-ray of a trauma patient and failing to notice the 1 cm mass in the opposite lung.
  • Search-satisfying bias – The “eureka” moment that stops all further thought, as in finding parasites in the stool of a patient with diarrhea and weight loss upon returning from India instead of taking a history that would reveal her thyrotoxicosis.
    *Source: “The importance of cognitive errors in diagnosis and strategies to minimize them,” Croskerry, Academic
  • Medicine, August 2003.

“Bridging” the anti-coagulated patient for surgery

Patients on anticoagulants usually require “bridging” for surgery. “Bridging” is the process of getting an anticoagulated patient through the procedure without excessive bleeding (too much anticoagulation) and without developing venous thrombosis, a myocardial infarction, a stroke or a pulmonary embolus (too little anticoagulation). In the realm of medical malpractice, problems arise if:

  • the surgical team is unaware that the patient is on an anticoagulant
  • the patient fails to disclose his/her use, perhaps due to ignorance
  • the procedure is done emergently
  • the anticoagulant is knowingly continued
  • bridging is inadequate

In modern medicine these risks and potential complications are rare. Surgeons, anesthesiologists and other interventionists like cardiologists almost always manage this process well, inform the patient of the risks and document an appropriate informed consent whenever possible. The most common anticoagulant is warfarin (Coumadin). Lovenox and its colleagues are sometimes involved. The newer or novel oral anticoagulants (NOAC’s) pose some unique challenges.  Should you have questions about this, a recent literature review by Mar et al. in International Journal of Cardiology addresses those challenges for various populations and procedures. They recommend specific guidelines to minimize the risk of both bleeding and thromboembolism.

Learning from lawsuits: Are we doing enough?

At the April meeting in Portland of the American Association of Legal Nurse consultants, I will be moderating a panel discussion on the pro’s and con’s of non-disclosure clauses in medical malpractice pre-trial settlements. I thank defense attorney Peter Tuenge of Keating Jones Hughes, Portland, and plaintiff attorney Bill Nelson of Baumgartner Nelson & Wagner, Vancouver for agreeing to share their perspectives. The other panelists will be David Griffiths, Senior Vice President of Program Management, AON/NSO and Jennifer Smith RN LNC, Lifeline Legal Nurse Consultants.

The truth always usually wins

In December I wrote about the Massachusetts study on the public’s views on medical error. That study showed that 90% of those reporting a medical error did so to “to prevent the same error from happening to someone else” while only 17% reported it “to receive compensation for the harm caused by the error.” A plaintiff attorney reader’s comments reflect what – in my experience – is true of the attitude of the majority of both defense and plaintiff attorneys with whom I have worked:

“I won’t take a med mal case until I am absolutely sure that the claims are valid. When choosing experts, I’m not looking for someone to tell me what I want to hear – I’m looking for someone to tell me very candidly what happened, why it happened, and whether or not whatever happened breached the standard of care – and how egregious was that breach. I’m frustrated by experts who will say whatever you want for money – on either side. An expert should make a conscious decision as to whom you’re going to work for based on the presentation – not who’s paying you. The jury will fall on the side of what’s right and will believe people who are real and who care about the outcome as much as they care about their own testimony and analysis.”

That’s what I enjoy about the work I do. When evaluating a plaintiff case, there have been a few times when I have found sub-standard care to which I can honestly testify, but which will be insufficient to overcome other testimony of defense experts. On the other hand, when evaluating a defense case, there have been times when I have pointed out weaknesses of the attorney’s position. I find that the truth has an uncanny ability to prevail – at least in the vast majority of cases.

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