[H]ospitalists are in a very litigation-intensive and volatile environment. … [T]hey are practicing in a niche that has not been fully accepted by the medical community. There’s a lot of tension on various specialty groups as to the role of hospitalists, the value of hospitalists, whether for a variety of reasons they are creating impediments [to] the quality of care, possibly raising competitive concerns. And so the best trained, the best intentioned, and most capable hospitalist is choosing … a dangerous area of practice from a liability perspective.
—Barry Halpern, JD, Snell and Wilmer Law Offices, expert in medical malpractice law
As hospitalists move from patient to patient, consult to consult, and decision to decision, risk management—proactively identifying, assessing, and prioritizing risks with a goal of minimizing their negative consequences—may not stay uppermost in their minds. Yet for hospitalists, by virtue of their constant location and activity in hospitals, risks lurk at every corner, and the potential for being judged at fault is real and potentially costly.
What are the hospitalist’s risks of being sued for malpractice? How can hospitalists best protect themselves against malpractice claims? Does being liable for patient care ever cause hospitalists to handicap themselves, to hold back in some ways?
What Risks Do Hospitalists Face?
“I think the issue that hospitalists are facing from a medical-legal standpoint is there is not a lot of cumulative experience with case law, precedent, in the field of hospital medicine,” says Tom Baudendistel, MD, a hospitalist and associate program director at California Pacific Medical Center in San Francisco.
Besides errors of medical practice, hospitalists are at risk when they:
- Practice beyond the scope of their specialty;
- Fail to communicate or communicate poorly with patients, families, staff, and referring physicians; and
- Fail to exercise independent medical judgment.
Hospitalists work with sicker, more complicated patients in an environment where more things can go wrong. (See The Hospitalist, July/August 2002, “Hospitalists and the Malpractice Insurance Crisis.”) All things considered, hospital-based physicians are at greater risk of being sued than their colleagues who work in offices.
Case #1: The hospitalist failed to detect a vertebral artery dissection in a younger patient. Should they have been able to detect that? It’s a rather unusual stroke presentation. A neurologist would have picked it up—and certainly would have been held liable or negligent if they’d missed that diagnosis. During their training neurologists would have certainly seen this condition as a cause of stroke in someone below age 45. But internists, in general, don’t receive good neurologic training as part of their residencies, and in community hospitals there is no set neurology service.
Neurologists have now become more office-based and allow the hospitalists to do more. By doing more, they’re also exposed to more legal risk. Should the hospitalist be held negligent for missing an unusual stroke? It depends on what you think is a hospitalist’s scope of practice.
Scope of Practice
A hospitalist’s scope of practice is somewhat difficult to define, although the classification “hospitalist” is gaining clarity (including with insurance underwriters), and the hospitalist model is becoming more recognized as a subspecialty. (See “A Malpractice Primer,” The Hospitalist, Dec. 2005, p. 1.)
One challenge in defining the hospitalist’s scope of practice is that hospitalists do a variety of things and work in different departments of the hospital: Some spend more time in acute care, some are more in general care, and some of them are mostly in trauma care.
It is generally acknowledged that healthcare practitioners must employ the same degree of diligence and skill commonly possessed by other members of the healthcare profession who are engaged in the same kind of work in similar locales. Thus, hospitalists need to be acutely aware of how other hospitalists practice in similar settings with similar resources available.