Delay in diagnosis is the most common allegation made against physicians in the course of medical malpractice litigation. In this video presentation, Dr. Cotton discusses common ways in which a delay in diagnosis can arise and offers practical strategies for minimizing the risk of this occurrence.
In this video, Dr. Cotton discusses the common causes of medication-related malpractice and offers practical guidance on how to avoid them. He also critiques the prevailing approaches to this problem and demonstrates why most of them are unlikely to be successful.
In this video module, Dr. Cotton reviews the basic medical principles of pain management and then presents a series of actual cases in which physicians encountered legal problems because they did not adhere to these principles.
Each module consists of a 50 minute audio presentation, in which Victor Cotton, MD, JD discusses common medical-legal dilemmas. Each module qualifies for 2 hours of AMA PRA Category 1 Credit. For learners who prefer to read, six of the modules (Dr-Pt Relationship, Better Documentation, HIPAA, Informed Consent, Proper Prescribing and Standard of Care) also have a reference article authored by Dr. Cotton, which covers the same material.
Avoiding a medical malpractice lawsuit is the central goal of risk management education. However, many of the ideas as to how we should accomplish this are not scientifically sound or clinically practical. This presentation approaches lawsuits from a scientific perspective and examines the variables which much come together to create a lawsuit. Using a series of brief case studies, the presentation simultaneously evaluates the methods by which we can avoid a lawsuit.
More is not necessarily better. In our desire to be medical-legally sound, many physicians now spend more time with the chart than with the patient. Unfortunately, the adage “document, document, document” probably creates as many legal problems as it solves.
This presentation looks at ways of improving documentation rather than just adding documentation. The case studies evaluate the documentation options when faced with unexpectedly bad clinical outcomes, medical errors, differences of opinion with other providers, threats of being sued, lost charts, patient non-compliance, errors in charting, and late entries. It also evaluates some common documentation “myths” and examines the legal consequences of font size, ink color and choice of punctuation.
Below are what other physicians have said about this module.
Thank you, Dr. Cotton for dispelling the myths of documentation. – R. Quinn
I want to thank Dr. Cotton for his way to approach the reality of the medico-legal dilemmas we face daily. –A. Torres
Great presentation! – M. Follmer
One of the best features of these modules is that they were helpful in allaying fear of law suits based on documentary, operational, and technical matters. Practicing consistently good medicine requires enough attention in itself. The suggestions put forth in these modules were easy to understand and simple to implement allowing me to focus my attention on taking care of the patients. Thanks – M. Clinton
This has been the best series presented to us. This should be given to all practitioners in the US and all the medical schools and residencies – P. Battle
Extremely relevant, excellent content – L. Wolfe
All the modules I have completed have been clear, concise, pertinent and easy to listen to. They have been helpful reminders, increased awareness of issues and presented some new information. I would not hesitate to recommend this series to other health providers. – G. Slate
I would enjoy having more lectures from Dr. Cotton. This is such a stressful subject for any physician that even talking about it creates unease. He addresses the issues in a very practical, nonthreatening way. – J. Zimbelman
Excellent, once again! – D. Ferrante
Overall these series of lectures are excellent and should be heard by all physicians. – R. Evans
Well done. - W. McKee
I really enjoy the precision of the information and the folksy but expert approach Dr. Cotton takes to delivering this presentation. - L. Boyajian-O'Neill
Great module; insightful,clear about rules that apply to documentation - W. Lawrence
excellent, simplifies my life - M. Suenram
I love emphasis on patient, not the chart. Thank you for validating what I knew was right. It seems all we hear is,"document, document...." - J. Welsh
In this audio lecture, Dr. Cotton discusses documentation by starting with the clinical situations that are most frequently targeted by plaintiff attorneys. He then offers guidance as to how we can handle these situations in a way that allows the medical record to be used for us rather than against us.
In this audio module, Dr. Cotton discusses a series of common documentation dilemmas and offers practical guidance as to how they can be managed. The scenarios include curbside consults, telephone calls, radiology reports, and procedures that are compromised by complications.
The most frustrating thing about HIPAA is that it has never been explained properly. HIPAA actually improved patient related communication by placing everyone under the same set of simple federal rules. Despite all that has been said, HIPAA is surprisingly conducive to the practice of medicine and difficult to violate with anything short of unprofessional conduct.
This presentation evaluates the common HIPAA dilemmas - talking with family members, leaving messages on answering machines, communicating confidentially in a busy emergency room, overheard conversations, pharmaceutical representatives in the office, announcing patient names in a waiting room, the use of patient sign-in sheets, a patient’s right to access and alter his/her record, and handling insurance company pre-authorizations. In the end, HIPAA does not require anything more than that which we have always regarded as “proper, professional conduct.”
Although it is clear that a patient must consent to treatment and also has the right to refuse treatment, many clinicians are not sure what role that they should play in informing, persuading and advising the patient as to the various options, risks and benefits. This presentation uses a series of case studies to develop these concepts.
For example, when is informed consent required, how inclusive and how specific must the physician be in outlining the various risks, benefits and alternatives, what if the physician fails to mention a risk which the patient then experiences, what if the patient does not understand, what if the patient denies being told of the risk, must informed consent be obtained by the treating physician or can someone else do it, when does an “informed refusal” apply, which patients are permitted to refuse treatment and what types of treatment can they refuse, when is a physician permitted to ignore the patient's wishes in terms of consent or refusal.
Below are what other physicians have said about this module.
Excellent points that I never understood until now. –P. Battle
I like the way the questions require thought and application of the principles and not just regurgitation of the material. – R. Quinn
Great examples. – H. Klepacz
This was great – R. Botnic
Thank you! - J. Frost
Excellent lecture; very informative and easy to understand - M. Madden
This was helpful in defining when informed consent is needed as this can be a grey matter in some situations. - A. Nicholson
I am surprised by how informative and interesting to read these core curriculum modules are. They give me a sense of the type of medicine I actually like to practice rather than medicine that is based in covering-my-butt logic. It has actually been REFRESHING to do this CME that my malpractice insurance company recommeded. Thanks. - P. Frase
Dr. Cotton is a great presenter. W. Revell
Really like his presentation and delivery. - J. Mead
In this audio presentation, Dr. Cotton offers practical strategies for reducing the legal risks associated with an online presence. The topics discussed include a medical practice’s website, blogging, social networking, the use text messaging and mobile devices, and managing the impact of physician rating websites
This module presents a series of actual medical malpractice cases, which Dr. Cotton then analyses and discusses. Although the cases come from various areas of medicine, the teaching points are applicable to everyone who sees a patient.
Below are what other physicians have said about this module.
Excellent case reviews! - J. Mallory
Good module - C. Oliver
Good examples - A. Nemechek
Very interesting and helpful module. - S. Leonard
Very interesting selection of cases . . . - J. Collier
Very enjoyable and informative. - S. Allos
Excellent discussion. - W. Reynolds
Great module, very informative! - A. Sanchez
I think it was great. Make it longer - D. Pollizi
This is a very clear, concise and practical course. I wish all required continuing ed or refresher courses were like this one. - N. Inhofe
Was clear, to the point and well articulated. Enjoyed the entire presentation, and re-calibrated my thoughts. The statement to take care of the patient is often lost amongst the multiple demands made on the physician. Thanks for reminding to take care of the patient. - F. Ramji
great tool for learning - G. Khan
Very clear speaker and repeats the important points in varying ways to make sure they are heard. - W. Marilyn
enjoyable speaking style - D. Kem
This was a highly informative module. - M. Canulty
Excellent program, no additional comments - S. Vinekar
Concise. Relevant. - A. Weedn
I really like his pacing and tone. This was a very good module and his excellent speaking voice made this easier. Thanks - D. Donahue
This module continues the series of lectures in which Dr. Cotton critiques actual malpractice cases. This module focuses on identifying those patients who are at highest risk of suing us and outlines common mistakes that we make in managing them. It also discusses the various strategies that plaintiff attorneys use and reviews ways that we can minimize their effectiveness.
In this audio presentation, Dr. Cotton walks through a medical malpractice lawsuit and discusses the various ways in which the process can confuse, burden and discourage physicians. Unlike many presentations of this nature, Dr. Cotton does not delve into legal technicalities and does not use scare tactics. Instead, he discusses what physicians need to know to make it through a lawsuit and achieve the best possible result with the least amount of pain.
Prescription drug related lawsuits are the fastest growing area of medical liability. This presentation examines the lines of responsibility as they are drawn between manufacturer, physician, pharmacist and patient.
For example, where does the responsibility for an idiosyncratic drug reaction fall, how much must the patient be told about the potential complications of treatment, what if the patient misuses the drug, what are the risks of prescribing off-label and how should they be handled, how should product safety issues such as black box warnings be managed, what if the patient's insurer will not pay for the medication, how should physicians manage alternative medication use, how should the risks associated with product recalls be handled. This presentation is a must for any person who writes a prescription.
Below are what other physicians have said about this module.
This, along with other modules you have produced, are simply the best and most straightforward discussions of medico-legal topics I have heard. It is almost entertaining to sit and listen! – D. Soulsby
Excellent presentation – R. Bishop
Very valuable about "black box", off-label, and sample. Also very helpful about documentation issues. – P. Mcelhone
Again a very complete presentation. He keeps me awake. – R. Dematteis
Very clear! Most information about this issue is not! – S. Humphreys
I enjoyed the humor in this episode! – A. Burgess
This was the best module so far -- definitely contained information I did not know. – J. Clark
Brilliant and insightful ! – A. Heimer
Very informative discussion. HIGHLY RECOMMENDABLE – V. Lakhani
Good course - J Barros
This was the best talk on this subject I've ever heard. - C. Reinhardt
Excellent presentation - M. Suenram
Excellent lecture, very clear, very informative, great lecture series - M. Madden
Black box warning clarification was useful - A. Krishnaumurthy
Very helpful particularly the comments about adverse reactions listed in the PDR - S. Kerstein
The doctor-patient relationship forms the basis for all malpractice related liability. It is thus critically important to know how it is formed and how it can be ended. This presentation looks at a number of different doctor-patient interactions: direct, indirect, in person, by phone, primary care, consultant, after hours, in the emergency room, and in social settings, in order to demonstrate the circumstances which combine to create a doctor-patient relationship.
In addition, the presentation covers the ways in which a doctor-patient relationship can end, including fully evaluating the do's and don'ts of unilateral termination by the physician.
Below are what other physicians have said about this module.
Best malpractice lecture I've ever received. – R. Laxton
Dr. Cotton: These Modules are simply wonderful. Very educational, but also very entertaining. After nearly 50 years in practice I thought I had considered everything, but each of your Modules brings new light on the subject. Thank you so much for your time and talents. – J. Metcalf
Absolutely brilliant! – M. Young
Excellent. –W. Rosenfeldt
Very practical, thanks – R. Valet
Very comprehensive presentation – K. McCoy
Speaker was great. – R. Henry
A very clear and precise presentation. – R. Dematteis
This section gave me some relief from worry about my obligation to patients awaiting appointments. Thanks – M. Clinton
Really well done. Thanks. – K. Kusek
An excellent lecture. He spoke clearly and gave good examples. – H. Klepacz
I have noticed before this course, front desk personnel giving out medical advice and triaging patients..... and now with this information about this putting me into a doctor-patient relationship there are some changes that will need to happen. – D. Thompson
Very clearly presented. I appreciated the real-life scenarios. – S. Leonard
The standard of care is not just a figure of speech, it is the central legal obligation that every clinician owes to every patient, in every situation. Thus, the ability to define the standard of care is the key to the entire malpractice system. This presentation starts with the legal definition and molds it into clinical terms which are then applied to a series of case studies representing common clinical challenges.
For example, how does the standard of care differ for an expert versus a non-expert, how does the community affect the standard of care, does the standard demand perfection or does it allow mistakes, how does denial of coverage by an insurer affect the standard of care, how does patient non-compliance factor in, what if there is more than one viable treatment option or, even worse, no proven approach, how soon does new technology become the standard of care? This presentation puts the listener in a position of being able to address confidently any standard of care dilemma that they may encounter.
Each module consists of a series of 8-10 case studies in written format. All of the modules were written by Victor R. Cotton, MD, JD. Each module qualifies for one (1) hour of AMA PRA Category 1 Credit.
A 36 year old woman’s family sued her internist for medical malpractice after the patient died of a pulmonary embolism. The patient first presented with recent onset of cough and shortness of breath. Her chest was noted as clear to auscultation. She had no fever and was otherwise well. A chest X-ray was normal. She was diagnosed with probable bronchitis and treated with an antibiotic.
She called several days later and stated that the cough had improved but that she was still short of breath. She was advised to finish the antibiotic. One week later, she returned to the office. She had finished the antibiotic. She reported occasional cough, continued shortness of breath and occasional dizzy spells. She had a history of panic attacks and migraine headaches. She lived alone and reported increased stress at work.
Her pulse was 96, but her examination was otherwise normal. She was diagnosed with “anxiety disorder” and her SSRI dose was increased. Two days later, she collapsed at work. An ambulance was called, but she could not be resuscitated. Autopsy revealed multiple pulmonary emboli of varying ages and pulmonary infarctions.
One week prior to her first visit, she had flown home to Philadelphia from Europe. She was also taking oral contraceptives. The lawsuit alleged a failure to make a timely diagnosis of pulmonary emboli, which resulted in her death.
Is a clinician required to arrive at the correct diagnosis the first time he sees the patient?
We are not always required to make the correct diagnosis at the time of the first encounter, but the overall care of the patient must progress in the direction of diagnosis.
Pulmonary embolism can be a difficult diagnosis to make. And, the mere fact that the diagnosis was missed is not necessarily medical malpractice. The problem here is that this patient presented three times with unexplained shortness of breath and the diagnosis was not even considered. On the first visit, a diagnosis of bronchitis was made. Although a possibility, bronchitis is generally not associated with shortness of breath. The patient then called and again complained of dyspnea. After the second office visit for shortness of breath, a diagnosis of anxiety was made. Although anxiety can cause feelings of breathlessness, this did not adequately explain the patient’s elevated pulse.
Because many complaints are never adequately explained and resolve without any consequences, a lengthy work-up is not required every time a patient mentions something. On the other hand, this patient complained of shortness of breath on multiple occasions. And, none of the working diagnoses explained her entire clinical picture.
Most patients, family members and jurors understand that medicine is not perfect and that clinicians sometimes miss things. But, three misses in a row is difficult to explain or defend. Here, just about any test could have changed the outcome. A repeat chest film, pulse oximetry, or EKG could have given clues to the fact that this was not an anxiety disorder. Unfortunately, none of these were ever done.
If a patient’s complaint cannot be adequately addressed by the third visit, further evaluation and/or consultation is in order.
Below are what other physicians have said about this module.
These modules put into perspective a lot of medico-legal issues that we experience everyday and drives home the issue that we must always diligently strive to practice prudent, conscientious medicine. – G. Duremdes
Excellently put together – M. Wilson
Thoughtful - C. Wood
The examples are excellent. Very helpful module. - S. Leonard
Very helpful to read about actual situations and see alternatives to what happened. - J. Clark
Good information. - Krakes-Stephen
Good information well presented. - B. Garner
Excellent the way it is now presented - P. Boylan
Good review - D. Knapp
You have a great business model. - B. Bernstein
Good case studies. - W. Reynolds
It is always nice to get to know the result of the litigation. - Peralta
Delay in diagnosis is one of the three most common allegations in medical malpractice lawsuits. Delays in diagnosis are created by a number of factors, many of which are not within the control of the physician. This module develops the concept of delay in diagnosis starting with the basics of diagnostic expectation and the limits of medical science, and then incorporates the effect of external factors, including patient non-compliance and managed care restrictions.
Mr. X is a 42 year old man who presents to the emergency room with chest pain. Dr. A evaluates his condition in accordance with the latest algorithm from the American College of Cardiology. Based on Mr. X’s history, EKG and blood enzymes, the algorithm states that his risk of myocardial ischemia is one in 10,000, and recommends that he be discharged with instructions to see his physician within the next week. Dr. A discusses the situation with Mr. X and discharges him from the emergency room. Two days later, Mr. X suffers a myocardial infarction and dies.
If the diagnosis could have been made in a more timely manner, does the failure to make the diagnosis constitute a delay?
The legal issue with respect to delay in diagnosis is not whether the diagnosis could have been made sooner, but whether it should have been made sooner.
In this case, if Mr. X had been admitted to the hospital, observed, and undergone cardiac catheterization, it is likely that the diagnosis of coronary ischemia could have been made and his life saved. However, that is irrelevant. The legal issue is not whether a sooner diagnosis of cardiac ischemia was theoretically possible; it is whether a physician who was proceeding in a scholarly, attentive manner would have made the diagnosis in the emergency room and/or admitted the patient. And, if that person would have, then Dr. A should have. If that is the case, then Dr. A’s care of Mr. X would constitute a legally actionable “delay in diagnosis.”
From what we are told, Dr. A treated Mr. X in accordance with the latest recommendation from the American College of Cardiology – the experts in the field. In doing so, he delivered a scholarly, attentive approach to the situation, and thus delivered the standard of care. Unfortunately, the imperfect nature of the science of medicine led him to the wrong diagnosis. This delayed making the proper diagnosis, and Mr. X died. Although the diagnosis could have been made sooner, there is no reasonable basis for saying that it should have been made sooner.
The delay in diagnosis here is due to shortcomings in the science of medicine, and it is therefore not legally actionable.
This module provides the insight necessary for physicians to adequately manage patients’ pain without becoming a target of the “War on Drugs.” The cases help physicians find a balance between the competing legal concerns of a “failure to adequately treat pain” and an encounter with the Drug Enforcement Agency.
Several years ago, Mr. X began seeing Dr. A for chronic neck and back pain. At that time, Dr. A performed an initial history and physical, ordered plain films of his spine, and partially reviewed his old records. Dr. A diagnosed “chronic pain secondary to degeneration of disc spaces.” He began treating Mr. X with Tylenol #4, prescribing two tablets, two times per day.
Over the next three years, Dr. A saw Mr. X in the office on three occasions. The accompanying notes were brief and stated that his physical exam had “not changed.” No other diagnostic studies or consultations were ordered. Mr. X was treated with a variety of opioid medications, with gradually increasing dosage. Most of his interaction with Dr. A took place over the phone. Outside of the opioids, few other treatments were attempted, and the notes indicated that these were “ineffective.” Most of the office notes were brief, making the overall pattern of care difficult to follow.
At what point should a clinician become concerned about the potential legal consequences of treating pain?
Any clinician who is practicing medicine outside of the standard of care should be concerned. And, this is especially true when prescribing opioid analgesics.
From a legal perspective, the evaluation and treatment of pain is unique from other diseases in one significant way – the use of opioid analgesics. Although every class of medication carries risk, opioids have the potential for abuse, diversion, and chemical dependency/addiction. And, they are regularly the focus of law enforcement. This can place the clinician in an awkward position. On one hand, he faces legal scrutiny if he fails to adequately treat pain. And, on the other, when he treats pain, he risks becoming a target of the “war on drugs.” The competing interests have understandably created a degree of anxiety in the field of pain management.
Fortunately, the treatment of pain and the prescribing of opioids is governed by the same fundamental principle that governs all of medicine – the standard of care. And, as with any disease, the standard of care demands that pain be evaluated in an attentive, thorough and scholarly manner, and then treated by combining the relevant medical literature with good clinical judgment. This level of performance, which always produces the standard of care, will shield any clinician from any accusation of wrongdoing.
In this case, Dr. A has not delivered the standard of care. He has not adequately evaluated Mr. X. He has not seen him on a regular basis. He is regularly prescribing over the phone without any recent assessment of Mr. X’s condition. He has not tried any treatment except opioids. He has not sought consultation. And, his medical records are incomplete. This level of performance is not acceptable in the management of any disease. And, when it is combined with high doses of opioid analgesics, it is especially concerning.
Dr. A’s conduct is not in conformance with the standards of our profession, and is concerning from a medical and legal perspective.
This module describes the manner in which potentially problematic new patients can be avoided and existing problematic patients can be dismissed. In addition, the cases examine other medical-legal issues sometimes incurred with opioid use, including Driving Under the Influence laws, death due to respiratory depression, liability for causing chemical dependence, and the OxyContin debacle.
It goes without saying that no doctor wants to provide, and no patient wants to receive, medical care which is futile. The problem is ascertaining when a medical intervention becomes futile, and then knowing what a clinician can/should do at that juncture. This module examines the manner in which the legal system has struggled with the issue of futility.
Mrs. X is 93 years old. She has a stenotic aortic valve and early heart failure. If she were 20 years younger, the treatment of choice would be aortic valve replacement. But, with her advanced age and frail condition, Dr. A believes that she is unlikely to have a satisfactory surgical result. Although it is technically possible to replace her valve, it is highly likely that she will either die or have her overall condition significantly compromised as a result of the procedure.
Because the risks outweigh the benefits, Dr. A decides against surgery and elects to treat the heart failure with medications. Unfortunately, Mrs. X’s daughter has been reading about aortic stenosis and she informs Dr. A that her mother wants to have valve replacement surgery. Dr. A discusses the matter with Mrs. X and she is in agreement with her daughter.
Is a physician obligated to offer and/or perform a treatment which he believes is more likely to do harm than good?
Treatments which have unfavorable risk to benefit ratios are outside the standard of care and should never be offered or performed.
From a medical-legal perspective, we are required to deliver the standard of care to every patient at every encounter. In clinical terms, the standard of care can be defined as “the best available combination of risk and benefit.” By definition, the standard of care always contains an element of risk, and this risk is often serious. However, as long as the possibility of risk is offset with sufficient opportunity for benefit, the treatment will fall within the standard of care. On the other hand, if the benefit cannot adequately offset the risk, then the treatment is outside of the standard of care, and it should not be offered or delivered.
In this case, aortic valve replacement is technically possible and it does offer the possibility of some physiologic benefit. Assuming that Mrs. X survives the procedure, a new valve should lessen her heart failure and improve her cardiac condition. However, even if the procedure is a complete success, a new valve will have a very limited effect on her overall prognosis.
Mrs. X is 93 years old and quite frail. Even with a new valve, she is unlikely to live more than a few years, and she cannot partake in significant physical activity. Although she does have aortic stenosis, it is not limiting her activities and it will not significantly reduce her life expectancy. As such, the overall benefit of replacing the valve is very limited. On the other hand, the risk of serious harm during the procedure is great. Because the risk of harm outweighs the opportunity for benefit, valve replacement surgery falls outside of the standard of care.
Dr. A should discuss his assessment of the situation with Mrs. X and her daughter. If the family remains committed to surgery, Dr. A should ask one of the cardiac surgeons to see Mrs. X. It is likely that the surgeon will give the same assessment to the family, at which point they may (hopefully) change their view on the situation. But, if they remain committed to surgery, Dr. A can offer to transfer Mrs. X’s care to any cardiologist or surgeon that the family prefers. But, under no circumstances should he support, recommend or perform a treatment which he believes is outside of the standard of care.
Dr. A should NOT refer Mrs. X for valve replacement surgery.
This module outlines the difficulties presented by the managed care pre-authorization process, denials of coverage and formularies, and defines the physician’s options and obligations in each of these situations.
Dr. A is a rheumatologist who is treating Mr. X for a severely arthritic hip. He believes that Mr.X needs hip replacement surgery. Dr. A normally sends his patients to Dr. B, who is the best orthopaedic surgeon in town. Unfortunately, Dr. B does not participate with Mr. X’s managed care plan, and an “out of network” referral is prohibitively expensive.
Dr. C is an orthopaedic surgeon who is “in network.” Although Dr. C is board certified, he is generally regarded as not being as proficient as Dr. B. And, his surgical complication rate is higher than the national average.
Dr. A refers Mr. X to Dr. C, who performs hip replacement surgery. Mr. X suffers a number of surgical complications and is dissatisfied with his result. He sues Dr. A, alleging that Dr. A is partially responsible for the surgical complications because he made the referral.
Is a physician responsible for the care that is administered after he makes a referral?
A physician is responsible for his own actions, along with the actions of those whom he supervises, but not the actions of other independently functioning physicians.
An unsatisfactory result from a surgical procedure is the leading reason that patients sue physicians. As such, every effort should be made to ensure that the patient receives the best possible surgical care from the most appropriate person. In this case, Dr. A recognized the need for surgical consultation and made a timely referral. Unfortunately, he sent Mr. X to Dr. C, who was not as good as Dr. B. Mr. X then suffered an unsatisfactory result, which might not have occurred had be been sent to Dr. B.
Although this situation might look problematic from a medical-legal perspective, the reality is that one can always make an argument that there is someone better out there. Although Dr. B is a better surgeon than Dr. C, there is probably someone, somewhere, who is better than Dr. B. And, as such, even if he had been sent to Dr. B, Mr. X could argue that this was not good enough either. The end result would be that any patient who was not sent to the best surgeon in the world could sue his referring physician for medical malpractice. Fortunately, that is not the manner in which the law works.
A physician is required to recognize the need for referral and then make a timely referral to a “qualified” individual. In this case, Dr. A made a referral to Dr. C, who was a board certified, orthopaedic surgeon and credentialed as such by the managed care company. Dr. C’s skill level relative to his peers is difficult to precisely quantify and completely irrelevant. Mr. X had a bad hip and Dr. A sent him to an orthopaedic surgeon. That is the end of the analysis.
Once Mr. X was properly referred to a qualified surgeon, Dr. C became responsible for his care and is solely liable for any errors which he committed.
Dr. A was not negligent in his referral, and is not responsible for Mr. X’s unsatisfactory surgical result.
This module examines the liability associated with a denial of coverage by a managed care company and addresses the various laws and court cases which have influenced this area. In addition, various strategies for effectively negotiating with managed care companies are evaluated.
Because every malpractice lawsuit originates with an unsatisfactory medical outcome, it is often proposed that we can reduce our legal risk by improving the manner in which we manage “bad outcomes.” The idea is logical, but the methodology that will help us achieve this result is completely unstudied and unknown. This module examines the phenomenal manner in which physicians presently handle bad outcomes and evaluates whether our conduct is consistent with applicable ethical and legal principles.
Dr. A commits a medical error that causes Mrs. X to suffer serious harm. Dr. A responds to the situation by communicating, documenting and caring for Mrs. X in a manner that is representative of how most physicians would respond to a medical error.
What is the likelihood that Dr. A will be sued by Mrs. X for medical malpractice?
Even when a medical error causes patient injury, physicians are phenomenally adept at avoiding a malpractice lawsuit.
Localio studied the relationship between adverse events due to medical negligence and malpractice litigation. (NEJM 325:245-251 1991). Although the paper is fifteen years old, it is the most comprehensive and scientific piece of work ever done in this area. The authors screened a random sample of 31,429 hospital records for incidents of medical mismanagement which resulted in patient harm. Two hundred eighty cases were identified (0.9%). From a legal perspective, each of these patients had a viable claim for medical malpractice. And, the risk that they would sue was magnified by the fact that the study was based in New York City, an area of the country where knowledge of, and access to, the legal system is not in short supply.
Amazingly, only eight of the 280 patients subsequently filed a lawsuit (weighted rate 1.53%, confidence interval 0 to 3.2%). The other 272 did not. Despite being directly harmed by substandard medical care, the overwhelming majority of patients did not sue. It is nothing short of remarkable that physicians could avoid litigation in almost 99% of these cases. This study, which is the gold standard in this area, stands for the proposition that physicians are very gifted at managing their relationship with the patient in the wake of a medical error/bad outcome.
Of course, this does not mean that we cannot learn from one another and improve. But, a position that physicians substantially contribute to the medical malpractice problem through poor “crisis management” skills is not consistent with the data. The fact that physicians can injure patients through error and be blamed in only 1% of cases is a remarkable testament to our ability to relate to, and empathize with, human suffering.
Any proposed change in the manner in which we handle medical errors must demonstrate nearly 100% efficacy in avoiding lawsuits, or it must be rejected as an inferior method.
Below are what other physicians have said about this module.
Good module - C. Oliver
I found this module very reassuring that I am practicing and dealing with unanticipated outcomes appropriately. - G. Herrald
This was helpful in seeing how we perform in avoiding litigation over bad outcomes. - B. Branson
I was pleased to learn that what I have been doing for past 45+ years is acceptable practice - V. Lakhani
I enjoyed this lesson because it used science to tell us that we do pretty well in this area, and encouraged us to continue. It is refreshing to hear that truth, empathy, and attentive care of the patient are still valued! - Keith
The receipt, review and communication of test results are integral parts of the practice of medicine, while misplaced and miscommunicated test results are a common cause of medical malpractice litigation. This module analyzes the dilemmas caused by lost reports, inaccurate interpretations, and “Dictated, but not read” reports, and offers practical strategies which minimize the opportunity for error.
Dr. A, who is a urologist, is seeing Mr. X for complaints of difficulty urinating. Dr. A orders a prostate sonogram, which is done at the hospital and interpreted by a radiologist. The radiologist’s report, which is sent to Dr. A, is two pages in length. The first page contains several detailed images of a prostate nodule and the second page contains the “Conclusion,” which mistakenly states, “Mildly enlarged prostate. No evidence of mass.”
Dr. A does not look at the images and skips directly to the conclusion. He diagnoses Mr. X as having BPH and treats him accordingly. The following year, Mr. X is diagnosed as having prostate cancer, which has now spread beyond his prostate. He sues Dr. A for the delay in diagnosis.
Are there situations where a physician is not permitted to rely on the “conclusion” section of a test report?
We should review the raw data that accompanies any test report in a manner that is consistent with our ability to interpret the information.
There is little to be gained by having an internist review the raw data from a bone density study or brain MRI. Most internists have little training in these areas and, in the absence of a glaring discrepancy, are permitted to rely exclusively on the “conclusion” of any such report. This is not the case, however, when the ordering physician has a measure of expertise in interpreting the test data.
In our example, Dr. A is a urologist and the study in question is a prostate sonogram. With respect to interpreting prostate sonograms, Dr. A probably has as much expertise as the radiologist who issued the report. And, he should use this expertise whenever feasible to aid in the care of his patient.
This does not mean that Dr. A must travel to the hospital and review every sonographic image from the study, as that approach is unreasonable in most situations. But, neither should he blindly rely on the conclusion section of the report, as that is somewhat irresponsible. Instead, if the report contains sonographic images, Dr. A should examine them. In doing so, he will occasionally learn something that can help the patient. But, he will also provide an important safety check in a system where dictation and transcription errors sometimes occur.
Although no one would expect a urologist to interpret the raw data from a signal averaged EKG, it is completely reasonable to expect Dr. A to review the images that are attached to a prostate sonogram report.
Dr. A made an error when he did not apply all of his expertise to Mr. X’s care.
Mr. X is a 57 year old man who comes to the emergency room with chest pain. Dr. A evaluates him and concludes that he has unstable angina and is at high risk of having a heart attack and/or sudden death. Mr. X disagrees. He insists that he simply has bad indigestion and desires to go home.
Dr. A notes that Mr. X does not appear to be under the influence of drugs or alcohol. He has no history of mental illness and clearly understands his situation. But, he does not agree with Dr. A’s diagnosis and wants to go home.
How should a situation be handled where a competent adult is risking his life by refusing medical care?
A competent adult can refuse any treatment for any reason. But, every effort should be made to prevent him from risking his life.
As a competent adult, Mr. X cannot be stopped from leaving the emergency room. It is highly possible that he may have a heart attack and die, but he is only endangering himself by doing so. And, he is thus permitted to misuse his Constitutional freedoms in this manner. Despite Mr. X’s clear right to risk his life, this case is concerning from a medical-legal perspective.
Should Mr. X indeed have a heart attack and/or die, it is possible that he or his family will attempt to blame Dr. A. And sometimes, in the wake of a bad event, a patient’s recollection as to what he was told differs from that of the physician. As such, Dr. A must make every effort to avoid any possibility of confusion on this matter.
Dr. A should first have a very frank conversation with Mr. X. If his wife or other family member is available, they should be involved as well. (If family members are present with the patient, HIPAA states that the patient’s consent to have them involved in the conversation can be implied.) If this conversation does not work, Dr. A should involve other clinicians, perhaps a nurse or cardiologist, and have them speak with the patient. And, all of these persons should document a summary of their conversations with Mr. X. Although Mr. X might someday argue that Dr. A did not adequately explain the situation, it is difficult to assert that several other people also made the same mistake.
Finally, if Mr. X still insists on going home, he should be asked to sign an “Against Medical Advice” form. As a matter of law, he is not required to sign the form as a condition of leaving. But, he should be encouraged to do so. From a practical perspective, a patient who signs an AMA form signs away all of his legal rights to blame anyone but himself.
Dr. A should involve other persons in his efforts to persuade Mr. X to stay. And, if he is unsuccessful, he should ask Mr. X to sign an AMA form and allow him to leave.
This module evaluates more complex issues in medical decision making than Module 1.0, including a patient’s refusal of care based on religious reasons, a parent’s right to refuse care for a child, and the healthcare conflict that can arise between mother and fetus.
This module examines the ways in which healthcare decisions should be made for incompetent persons. The cases evaluate living wills, durable powers of attorney, the role of the patient’s family, situations where there is no guidance, and situations where the available guidance is contradictory.
Because most medical-legal education focuses on the physician’s obligations and legal duties, one could easily conclude that the patient has no responsibility. Fortunately, this is not correct. This module examines the legal concept of personal responsibility and demonstrates that it is, in fact, still the backbone of our legal system.
Mr. X presents to Dr. A with a chief complaint of low back pain. Dr. A thoroughly evaluates Mr. X and makes an appropriate diagnosis. He asks Mr. X if he is having any other problems and Mr. X states, “No.” Dr. A treats Mr. X’s back, documents that he has “No other complaints” in the chart, and sends him on his way.
Unfortunately, Mr. X was also suffering from intermittent chest pain. But, because he was afraid that the pain might be related to his heart, he did not mention it to Dr. A or his staff. Several days after the visit, Mr. X suffers a heart attack. In the emergency room, he states that he had been suffering from chest pain for several weeks and had just seen Dr. A two days prior.
Who is responsible when a patient fails to voice his problem?
A patient is responsible for seeking medical attention when he is ill and then alerting the physician to the nature of his problem.
In some situations, a patient is so overcome by illness or injury that he is unable to provide a reliable history. In such cases, we must heighten our diagnostic acumen and attempt to identify the problem by whatever means are available, an approach that is sometimes referred to as “veterinary medicine.”
However, most patients are not obtunded, mentally impaired or comatose. They are fully awake, alert and aware of their surrounding. And, as such, they are entirely responsible for seeking medical attention when they are ill, and then alerting us as to the nature of their problem. This responsibility is not only the law, it is also part of the AMA’s Code of Ethics, which states in Opinion E-10.02(1):
To the extent possible, patients have a responsibility to be truthful and to express their concerns clearly to their physicians.
In addition, this responsibility is recognized by JCAHO:
Patients are responsible for informing the healthcare team in two ways. First, they must provide accurate and complete information about present complaints, past illnesses, hospitalizations, medication and other matters. Second, they are tasked with asking questions when they do not understand what they have been told about their care or what they are expected to do. (JCAHO Standard PF.1.19)
And, if a capable patient fails to provide this information, he is responsible for whatever consequences may arise.
In this case, Mr. X presented with a chief complaint of back pain. Whether he actually had back pain or was simply afraid to tell Dr A about his chest can never be known and is not relevant to this analysis. What is relevant is that Mr. X did not mention chest pain as his chief complaint, nor did he voice it when Dr. A asked if he was suffering from any other problems.
Asking the patient if he has any other problems is an extraordinarily valuable practice that we should all emulate. Because patients are often unable to articulate everything on their first attempt, giving them a second chance to mention a problem can be a valuable diagnostic tool. In addition, it is indispensible from a medical-legal perspective.
Although we generally want to avoid asking this question at the very end of a patient encounter (as it often introduces unnecessary delay), it is essential that we ask it (and then document the negative answer) at some point during every patient visit.
While the patient is required to voice the nature of his problem, we should always provide him ample opportunity to do so. And, if he does not, then he must live with the consequences. To hold otherwise completely defies the legal principle of personal responsibility, the AMA’s Code of Ethics, and the JCAHO Standards.
Dr. A is not responsible for Mr. X’s failure to articulate his problem.
Below are what other physicians have said about this module.
Very helpful. I had previously been told that the referring physician was responsible for the patient until the patient was seen by the specialist. - S. Strubel-Lagen
Great class - J. Baxter
I was very enlightened to learn the details of the McDonald's Hot Coffee case. This makes so much more sense than the "collective consciousness" version I realize that I believed without really looking into the facts of the matter. - J. Clark
This module examines liability as it relates to product defects, shortcomings and recalls. The cases distinguish the manufacturer's obligations from those of the physician, and provide guidance for caring for patients in the wake of a product recall.
Dr. A prescribes a medication which is generally regarded as the “drug of choice” for Mrs. X’s condition. Dr. A chooses an appropriate dose and monitors the medication as recommended. At the time Dr. A prescribes it, the medication is not known to cause kidney damage.
One year later, while still on the medication, Mrs. X develops renal impairment. Shortly thereafter, the FDA determines that the medication is associated with an increased incidence of renal failure and the product is withdrawn from the market.
What is a physician’s legal responsibility for product defects, failures and recalls?
Physicians are not responsible for the inherent shortcomings of a drug or device.
Under the legal doctrine of Products Liability, persons who are involved in the manufacture and/or sale of a product can be held legally responsible for injuries caused by defects in the product. Although physicians are rarely involved in the manufacture of a drug or device, we sometimes play a role in their sale.
For example, nearly every physician writes prescriptions for drugs, some physicians sell medications and other healthcare products to their patients, and surgeons frequently implant medical devices. As a result of our involvement with the sale and distribution of medications and medical devices, the issue of whether physicians should be included in Products Liability has been weighed by numerous appellate courts.
And, every court which has addressed this issue has held that physicians are NOT responsible for product defects, failures and recalls. This is true whether we implant a device, sell a medication, or merely write a prescription. Courts have reasoned that physicians are primarily in the business of providing services, and that the sale of any product is merely “incidental” to the delivery of patient care. As such, we cannot be held responsible under the legal theory of Products Liability.
Dr. A used the medication in an appropriate manner and is not responsible for the problems that it was later found to have caused.
This module discusses the medical-legal aspects of "Dear Doctor" letters and demonstrates how they should be managed. It also addresses the management of Black Box Warnings, the role of Informed Consent, and the risks of "off-label" use as they relate to product recalls and Products Liability.
This module examines the respective roles and responsibilities of referring and consulting physicians. The cases address the importance of defining our roles, common mistakes in co-management, the issue of liability for one another’s errors, handling disagreements, and curbside consults.
Mr. X recently underwent a kidney transplant after his native kidneys were damaged by diabetes mellitus. Dr. A is his transplant surgeon and Dr. B is his nephrologist. The doctors have agreed that Dr. A will manage the anti-rejection drugs, but they have both been managing Mr. X’s diabetes.
Mr. X’s blood sugars have been highly variable. Dr. A recently increased his long acting insulin and Dr. B subsequently decreased his short acting insulin. At different times, Mr. X has called either physician for advice on his insulin, depending upon who was more readily available.
Is an agreement to share the management of an individual aspect of a patient’s disease process acceptable?
We often co-manage patients, but we should avoid co-managing the individual aspects of a disease process.
There are some situations which are so problematic that a mistake is likely to occur even if we employ perfect communication. And, this is one of them.
It is possible that Drs. A and B have an understanding that they will both manage Mr. X’s insulin. But, even if they have worked together many times, this is a mistake. As a result of their attempt to co-manage the insulin, there is effectively no one who is in charge of the situation. This fact is even apparent to Mr. X, who now takes direction from whomever he can reach.
Although working together is important and “two heads” are often better than one, we must not co-manage the individual aspects of a disease process. We can and should offer our opinions to one another, but one person must ultimately assume responsibility for the situation.
Sometimes, when the stakes are low, co-management is not a medical or legal issue. For example, if an internist writes for a patient to have a “full liquid diet,” and the surgeon changes the order to “soft diet,” there is no reason for anyone to become excited. It probably doesn’t matter either way. But, as the degree of risk rises, we need to become more cautious about this type of interaction.
The two physicians need to decide who is managing the insulin and communicate their decision to Mr. X.
Below are what other physicians have said about this module.
Excellent examples. I feel like I learned a lot from this module. - S. Leonard
The "curb-side" consult clarification was very helpful - C. White
Good cases - S. Klinefelter
Although I am a consultant, patients frequently ask me questions, regarding medical issues being treated by their primary physicians or other specialists. This module reminds me to make a note of the issues and their dispositions. - J. Hatlelid
A tremendous amount of heathcare communication takes place over the telephone. Some of these calls are directly between doctor and patient, while others involve office staff acting on our behalf. This module examines the medical-legal aspects of scheduling appointments, triaging patients, after-hours calls, calls from other clinicians, and the difficulty of documenting phone calls.
A 57 year old man sued his cardiologist and his cardiologist’s partner for medical malpractice after he developed an infected hematoma in his groin. The patient underwent an angioplasty which was uneventful. Afterward, he developed a moderate sized groin hematoma. The bleeding was controlled and he was discharged home.
The next evening, which was a Friday, he called his cardiologist to report that his groin site was tender. The physician was off for the weekend and the call was taken by his partner. The covering physician told the patient to put ice on the area and take Tylenol.
The next day, Saturday, the patient called again. He stated that his pain was lessened, but that he now had a temperature of 100.5. He stated that he had muscle aches and felt like he was getting the flu. The covering physician told him to continue with the Tylenol, and to speak with his family physician regarding his aches and pains. The patient did not call his family physician.
The next day, the patient presented to the emergency room with fever and purulent drainage from the groin site. He required surgical drainage of an infected hematoma and had an extended hospital stay. He subsequently sued both cardiologists.
What is the risk in fielding a phone call from a patient whom we are “covering?”
From a medical-legal perspective, covering another physician’s practice is one of the most dangerous procedures that we undertake.
Covering for another physician is an extraordinarily dangerous undertaking. The patients often call us after hours with an acute complaint. The covering physician generally knows nothing about the person’s history and usually does not have access to the medical record. The only information available is that which can be gathered by phone. And, without the benefit of knowing or seeing the patient, it can be difficult to judge the severity of illness. Yet, we are fully responsible for the patient, just as if he were our own.
To make matters worse, the patient usually does not personally know the covering physician, and the physician thus loses the legal buffer that an established doctor-patient relationship often provides.
Faced with so much risk, covering physicians must have a very low threshold for seeing a patient. If the physician is not personally able to do so, the patient should be referred to someone who can or to an emergency room. From both a medical and a medical-legal perspective, there is no substitute for seeing the patient. It improves diagnostic accuracy, allays patient anxiety, conveys empathy, and dramatically reduces the risk of being second guessed by an expert witness who did not see the patient. Although no physician has ever been sued for sending a patient to the emergency room, many of us have been sued as a result of not doing so.
Seeing the patient is the most valuable medical-legal strategy ever devised.
This module examines some of the newer medical-legal issues which can arise in the course of electronic and telephonic communication with patients. The cases address internet communications, telemedicine laws, phone calls from attorneys, and the recurrent problems created as a result of our over-interpretation of HIPAA.
This module discusses the operation of The National Practitioner Data Bank and analyses the situations in which a medical malpractice lawsuit is reported to the Data Bank. It also evaluates several ways in which a Data Bank entry can be sidestepped.
Dr. A is sued for medical malpractice in a case involving post-operative complications. His malpractice insurance company hires an attorney and they begin defending the case. Unfortunately, within a few weeks, some of the details of the case appear in the local newspapers and become widely known in the community.
At what point in the course of a medical malpractice lawsuit does an entry appear against the physician in the Data Bank?
A medical malpractice lawsuit is not reported to the Data Bank until a payment (if any) is made on behalf of a physician or other practitioner. If a payment is not made, the Data Bank is never notified and no entry is ever generated.
Although Dr. A has been sued, allegations have been made, and the details made known in the lay press, these events are not reportable to the Data Bank. If one were to query the Data Bank at this juncture, no entry would be found with respect to this matter.
Similarly, if the case is dropped, dismissed, or Dr. A wins the case at trial, no entry is made in the Data Bank. The Data Bank does not track mere allegations or cases in which the defendant physician prevails, for these situations have little association with substandard physician performance.
The Data Bank is not notified and no entry is generated until money changes hands.
Law & Medicine’s office training module focuses on improving communications between your office, providers and patients. This audio and slide presentation addresses common areas of practice risk and offers practical guidance for reducing it.
In this video module, Dr. Cotton offers practical guidance for reducing malpractice risk in the medical office. The presentation centers on the three most common types of malpractice lawsuits - delays in diagnosis, procedures and medications.
Each module consists of a 45 minute recorded live webinar presentation, in which Victor Cotton, MD, JD discusses relevant medical-legal topics. Each module qualifies for 1 hour of AMA PRA Category 1 Credit.