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Risky Business


 

[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.

—Dr. Baudendistel

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.

Hospitalists in rural and suburban hospitals, which have fewer and less specialized staff readily available for consults, should expect to have a different scope of practice. In time further clarification of the roles, responsibilities, and clinical skills of hospitalists will be established so that the scope of practice is more clearly defined.

Dr. Baudendistel believes that residents tracking to specialize in hospital medicine could benefit from having more education in certain areas: neurology, perioperative medicine, and critical care.

SHM has recognized the need for better risk management strategies to protect hospitalists and will provide this information and continuing education in The Core Competencies in Hospital Medicine to be published the January/February 2006 issue of the Journal of Hospital Medicine.

Hospitalists should read their insurance and employer contracts carefully to ensure that the contract includes a statement allowing the physician to exercise independent medical judgment in the treatment of all patients.

Case #2: A male patient came into the ED at a rural hospital with an altered mental status. He had a history of falls and the CT scan in the ED showed a large subdural hematoma.

“We need to admit this patient to the hospital,” said the ED doc. “Call the hospitalist.”

“What does neurosurgery want to do?” asked the hospitalist.

The hospitalist tried to reach the neurosurgeon. And the ED doc wasn’t able to obtain neurosurgery consult because the neurosurgeon said that he wasn’t on call for that hospital. So the hospitalist was … left responsible without neurosurgery backup.

Ultimately, the patient worsened. The hospitalist called a different neurosurgeon at a different hospital who clearly wasn’t in charge of the patient. That doctor said, “Get the patient over to us, and we’ll take care of it.”

There was a 12-hour delay, and the patient finally got transferred to the other hospital, had surgery, and did OK. But he was definitely deteriorating.

The neurosurgeon who said he wasn’t on call for that hospital was wrong. He was lying or just didn’t know of his group’s call coverage. It was a clear violation. And it left the hospital in a situation that isn’t all that unfamiliar.

In this case, the hospitalist wasn’t at fault. There was clear chart documentation [provided as evidence] that said, “I called the neurosurgeon three times and they’re not calling back. Finally they called back the fourth time and said that they’re not coming in.” —Dr. Baudendistel

Communication

Communication is crucial in a clinician’s provision of quality care and also provides a safety net to help prevent liability. Communication with patients, families, staff, and other physicians—particularly their inpatients’ primary care physicians—provides the strongest armor against malpractice assaults. Timeliness and the urgency of the issue are key to patient care and are also are examined by those who review malpractice claims.

In recent years medical malpractice claims payouts have increased substantially for both jury verdicts and settlements. For monetary awards involving doctor-patient relations, which are largely predicated upon communication, the median payout is $230,000.1

Some hot-button areas that carry higher risk and call for meticulous communication between providers include:

  1. Inpatient postoperative care;
  2. Post-discharge communication (hand-offs);
  3. Diagnosis and treatment of a patient for whom there is an incomplete history; and
  4. Acceptance for treatment of patients whose medical conditions may either be unfamiliar to hospitalists or for which they have had limited or no training.

Communication with Patients

Communication—every aspect of it—is essential for the patient’s health, attitude, and satisfaction. Interestingly, legal data show that most patients who have bad outcomes don’t file suit.2 Although patients litigate for a variety of reasons, chief among them is when they perceive they have suffered because of administrative errors, rude practitioners or support staff, or the denial of tests and referrals they had requested and thought were reasonable.3 Data from a number of studies conducted within the past two decades show that although no particular communication skills can be directly associated with reducing malpractice claims, when patients perceive that their providers treat them genuinely and fairly, and update them honestly and regularly, they are less likely to sue.4-9

One-on-One with Barry Halpern, JD

My law firm practices throughout the western United States, and one of the areas that I see as a general pattern is when … continuity of care becomes an issue. The cases that are sometimes the most troublesome are those in which the hospitalist is involved.

There’s never a real clear demarcation of responsibility between, for instance, the surgery service and the hospitalist. Orders are written and then interpreted by the nursing staff in ways that, in retrospect, even the surgical service or the hospitalist are not pleased with. Yet the physicians aren’t talking to each other, and the documentation in the medical record is intermittent … .

Those kinds of situations, particularly where there is later alleged to have been, for instance, a medication error, become very difficult to defend. Because from the perspective of the lay jury that will be looking at the case, it’s easy for a plaintiff lawyer to depict a very disjointed and uncoordinated approach to care, when—in fact—the reality of practices is that they don’t always go perfectly and things aren’t always documented the instant that they are done.

And sometimes bad things happen despite everybody’s best efforts. But when you have a rough interface between the hospitalist and the other physicians with regard to responsibility for a patient, you are inviting a legal problem.

—Halpern is an attorney with Snell and Wilmer Law Offices, Phoenix

Case #3: A 72-year-old female who was pretty healthy (she had some high blood pressure) came in with abdominal pain. The ED doctor drew the laboratories, which suggested pancreatitis, and then investigated why she had pancreatitis. The ultrasound ordered by the ED doc showed gallstones. The physician then correctly inferred that she had gallstones causing her pancreatitis.

A hospitalist was called [and] admitted the patient. Surgery and GI consultants were called. The GI consultant first ordered an endoscopic retrograde cholangiopancreatography to clean the gallstones from the common bile duct. That went fine, and the next day the patient looked a little better. The GI service said, “Anticipated to go home in a couple days.” Surgery felt the same.

Then the consensus was to remove her gallbladder because eventually she would need to have it done. And that’s when things started to go badly.

On postoperative day two, the patient started having pain out of proportion to what should be expected. The internist (the hospitalist) raised that question in his note. The surgeon said, “No, that’s still postoperative pain,” and increased the pain medicine.

The hospitalist said, “I’m really concerned about this; I’ll talk to the surgeon.”

Again the surgeon said, “There’s nothing to worry about. I’ll at least order a HIDA scan.”

Initially the patient refused the scan, but the next day—postoperative day three—she was still having pain and was clearly worse. She had a high fever; her blood pressure dropped; and her white blood cell count climbed from 10,000 to 20,000, indicating infection/inflammation. Finally the hospitalist ordered a CT scan, which shows a perforation caused by the surgery.

The patient went to surgery for repair. As was predicted, she had a rocky hospital course and ultimately died a month later.

The surgeon was clearly in the wrong. … I was consulted and was asked, “What would you do with the hospitalist? What was their role in that case? Do you think he failed to meet the standard of care?”

—Dr. Baudendistel

Communication with Other Clinicians

“Communication between physicians is critical,” says Sally Whitaker, RN, BSN, risk manager with Rex Healthcare in Raleigh, N.C. “[Hospitalists] shouldn’t just rely on knowing they’ve put their notes on the discharge summary.”

At Rex Hospital (one of Rex Healthcare’s six facilities) where Whitaker works, when seminal events (those big bad things that happen) occur and result in severe trauma or death, the appropriate people meet to backtrack through the steps and scenarios that led to the breakdown.

“Fortunately we don’t have seminal events every day, but every day we do have things that go wrong,” she says. “ … And when we look at our Group Cause Analysis meetings, three-quarters of them [involve] communication issues.”

Exercise Independent Medical Judgment

Hospitalists should read their insurance and employer contracts carefully (especially those with a managed care organization) to ensure that the contract includes a statement allowing the physician to exercise independent medical judgment in the treatment of all patients. If that statement is not present, the hospitalist should request a revision in the contract to include such a statement.

In medical residency programs, a distinction is often made between being a consultant and being a co-manager, says Dr. Baudendistel, but “you have to assume there’s no legal difference between [the two].” Case #3 , he says, was a challenge to decide because the responsibilities of the surgeon and hospitalist in postoperative care were not clearly demarcated.

“I think the surgeon was probably saying, ‘I see this all the time and this is within the realm of what happens after one of these surgeries; let’s not be too worried yet,’” he says. “And I think the internist [hospitalist] ultimately pulled the trigger correctly and the [controversy later on pertained to] whether it should have been done a day or two earlier and whether that have mattered.”

This case illustrates that, although hospitalists are members of teams and partner with consultants and primary physicians, in the end they are managers of patient care and may (we hope rarely) have to break ranks to make aggressive care decisions.

“I think that the other thing that was in [the hospitalist’s] favor,” says Dr. Baudendistel of the case, “was that he was writing very thorough notes, [and] really was discussing everything with the family and everyone was on board. He was doing a very compassionate job … trying to manage this care.”

To Dr. Baudendistel, who is the chair of SHM’s ethics committee, this went a long way toward showing good faith.

Reducing Risks: Concern for the Medical Record

If the medical record is found deficient or illuminating in a negative way, it may serve the plaintiff attorney’s strategy well for establishing negligence or wrongdoing. The chart notes documented by nurses, attending staff, consultants, other residents, and therapists could either portray a smoothly managed case or a chronology of errors and omissions. The chart should never be cosigned and never merely assumed to be accurate.

Communicate with Physicians to Reduce Your Liability Risk10,11

  1. Notify the PCP/referring physician as soon as the patient is either admitted to or discharged from your care.
  2. Make sure the PCP gives you adequate information about the patient and his or her family, social, and medical histories to enable you to treat the total patient.
  3. Maintain communication with the referring physician or PCP throughout the patient’s hospitalization. Notify that physician of your clinical impressions, diagnoses, and treatment plans.
  4. Contact the PCP with any questions you may have about the patient.
  5. Document all communication with the primary care physician in the patient’s medical record.
  6. Inform the PCP /referring physician if more than one hospitalist provided care to the hospitalized patient.
  7. Provide the PCP with all necessary vital information: your name, office, cell, page and fax numbers, and e-mail address.
  8. Involve the PCP in any end-of-life or other decisions with major ethical implications.
  9. Remind the PCP that if he or she provides coverage for you at any time, you remain the physician of record.
  10. Schedule the patient’s first post-discharge visit with his or her PCP before the patient leaves the hospital.
  11. Fax a thorough discharge summary to the PCP within 24 hours of the patient’s discharge and send a written back-up shortly thereafter.
  12. Telephone any abnormal post-discharge test results to the PCP immediately and send all others within 24 hours of receipt.

When Things Go Wrong

Whitaker advises hospitalists to keep the lines of communication open. “Especially after something unexpected has happened,” she says. “So many times I think the human tendency is to just withdraw, or you feel terrible and you don’t know what to say, or you’re afraid you’re going to get emotional while you’re talking with the family.”

This is normal human response in these circumstances, but if you act on the impulse to withdraw and avoid the patient and family, or hold back, which may eventually lead to a filed claim from a family that feels abandoned.

“Until now the number of lawsuits has been really steady and the amount that we were paying in lawsuits was increasing,” says Whitaker. “However, we’re trying to work with the families earlier on so if we make a mistake and we realize that we made a mistake then we admit that. And we try to do what we can to make it right for that patient and their family.”

This often means reaching a fair and reasonable settlement, says Whitaker, “and [examining fair and reasonable means reviewing] the communication at the time the event occurred. Did we acknowledge that we made a mistake? Did we let them know we’d be willing to work with them? And did we let them know we [have since] made these changes … so they’ll … be reassured [that] hopefully it won’t happen again?”

Who’s in Charge?

Linda Greenwald, RN, MS, editor of risk management publications at ProMutual Insurance Group in Boston, wrote in the company’s newsletter, Perspectives on Clinical Risk Management, that in prior times, the question, “Who’s in charge?” was rhetorical.10 These days any number of generalists or specialists might claim that role. And therein lies the rub: Greenwald says that in many cases involving hospitalists the lines of responsibility are unclear and one or more systems may fail. If so, Greenwald writes, the result may be a malpractice claim alleging:

  • Failure to diagnose when each of two physicians assumes the other has responsibility for follow-up;
  • Negligence in treatment when one physician fails to monitor on an outpatient basis the medication first prescribed by another physician when the patient was an inpatient; and/or
  • Negligent care when a patient misinterprets the information one physician asks him or her to relay to another physician.10

Halpern concurs that the modern mix of professionals working as a team on hospital care can be a major challenge.

“In olden days, when a primary care physician referred to a surgeon, and the surgeon performed surgery, and the surgeon took responsibility for postoperative care, and occasionally brought in a consultant, the lines were relatively clear,” says Halpern. “When a hospitalist is injected into the mix, unless the hospital has really clear procedures and unless everybody is comfortable with the system and everybody is talking to each other and agreeing on the lines of demarcation, you’re creating a soup that plaintiff lawyers would be happy to stir.”

The more murky the communication, the greater the liability. “And when you have murky lines of communication, murky lines of responsibility, and a medical catastrophe,” says Halpern, “human nature compounds the problem by frequently causing a finger-pointing contest, where each component of the patient care team circles its own wagons [and] points in a different direction. And that is the absolute worst thing that can happen when trying to deal with a patient injury claim.”

Summary

The hospitalist’s primary risk for malpractice claims may be inadequate or absent patient follow-up resulting from a lack of communication. The best means of protection from claims is for hospitalists to incorporate a comprehensive risk management program into their practice.

Several strategies have proved successful to help prevent litigation. In general, hospitalists should make sure that their hospital has clearly delineated policies regarding responsibility for patients; clearly understand—and ensure that your coworkers, colleagues, and referring physicians understand—the hospital’s systems and protocols; exercise good communication skills; conform to the standard of care; know your own scope of care to the best of your ability; and exercise independent medical judgment, even when partnering with others. TH

Andrea Sattinger also writes the “Alliances” department for The Hospitalist.

References

  1. Mello MM, Studdert DM, Brennan TA. The new medical malpractice crisis. New Engl J Med. 2003;348:2281-2284.
  2. Virshup BB, Oppenberg MPH, Coleman MM. Strategic risk management: reducing malpractice claims through more effective patient-doctor communication. Am J Med Quality. 1999;14:153-159.
  3. Gurwitz JH, Terry S, Field TS, et al. Incidence and preventability of adverse drug events among older persons in the ambulatory setting. JAMA. 2003;289:1107-1116.
  4. Shapiro RS, Simpson DE, Lawrence SL, et al.. A survey of sued and nonsued physicians and suing patients. Arch Intern Med. 1989;149:2190-2196.
  5. Levinson W, Roter D, Mullooly JP, et al. Physician-patient communication: the relationship with malpractice claims among primary care physicians and surgeons. JAMA. 1997;227:558-559.
  6. Beckman HB, Markakis KM, Suchman AL, et al. The doctor-patient relationship and malpractice. Lessons from plaintiff depositions. Arch Intern Med. 1994;154:1365-1370.
  7. Cohen JR. Apology and organizations: exploring an example from medical practice. Fordham Urban Law Journal. 2000;27:1447-1482.
  8. Cohen JR. Advising clients to apologize. Southern California Law Review. 1999;72:1009-1069.
  9. Entman SS, Glass CA, Hickson GB, et al. The relationship between malpractice claims history and subsequent obstetric care JAMA. 1994;272:1588-1591.
  10. Greenwald L. Who's in charge? Perspectives on Clinical Risk Management. Boston, Mass: ProMutual Group Risk Management Services; Fall 2000.
  11. Alpers A. Key legal principles for hospitalists. Am J Med. 2001;111:5-9.

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