When Is a Medical Plaintiff Likely to Fail?
TASA ID: 3333
Most of my business as a hospitalist who offers medical expert services, and I'm one of the few who does, comes from attorneys asking if a suit is worth pursuing. Based on my experience, I can give you a few common-sense guidelines for spotting the unlikely suits before you and the client invest a lot of time and money.
Good Docs=Good Docs
A hospitalized patient's record should have daily progress notes by the physicians on the case. A consultant who doesn't need to see the patient every day may skip now and then, but the primary doctor-the one whose name is on the labels, or that doctor's covering partner-should put something on the chart daily during the hospital stay. Notes need not be long, and abbreviations are entirely OK, but the patient's symptoms, results of examination and tests, the doctor's impression of the status, and plans should be there. If progress notes are consistently less than 4 lines or illegible, you don't need a knowledge of medical terminology to know they're probably inadequate.
Smart doctors write these notes-or dictate them, or enter them in electronic form-to inform their colleagues, to organize their thoughts, and yes, to defend themselves against lawsuits. And that cranky former patient or family member in your office was probably just as cranky during the hospital stay; the warning signs were there, so their notes will reflect extra care. This should start you wondering if this case really has merit. The best-documented case I ever reviewed involved a patient who was totally disabled by a series of strokes before she entered the hospital; her doctors recorded not only her condition and treatment but also the family's unwillingness to accept the facts, and I feel very sorry for the attorney who is stuck with them as clients.
Documentation is important not only on the chart, but also in communication between doctors. Since nobody works 24-7, doctors hand off patients to their partners or to colleagues for night and weekend care. Many hospitalist groups use a "7 on, 7 off" schedule that means a patient can get a new primary doctor two or three times during a long admission, and they have to be meticulous in passing information and concerns from the former doctor to the new one. One of my worst cases involved a spinal abscess found on a Friday-night MRI; the hospitalist making Saturday rounds failed to act on it, and surgery came too late to prevent permanent disability. The same standards apply when the patient goes home: it should be very clear who will see her as an outpatient, and at the very least, some written report should go to the office doctor.
Do not, however, expect discharge (or death) summaries to give you the complete story. These are usually dictated in haste, the latter frequently days or weeks after the events. They provide a preview of what you'll find, though, so scan them first to get a feel for what was going on at admission and final departure.
Sue the Right Doctor
A doctor I used to work with once admitted a chronically ill patient in heart failure to a community hospital. The following morning the patient was sleepy and confused, so my colleague ordered a scan; it showed blood clots on the brain caused by a fall the previous a week. He promptly transferred the patient to a large, well-respected teaching hospital where the clots were drained-but doctors in training make more mistakes than experienced ones, and several of those caused the patient's death a few weeks later. The family insisted that my colleague was to blame; fortunately the attorneys on both sides had the sense to recognize that the facts disagreed with their view, and the case never made it to court.
Marion Kruse, Esq., the attorney who helped me start my "legal practice," warns that doctors who look and/or sound foreign have a harder job earning patients' and families' respect. Add to that the fact that many hospital patients are admitted by doctors they've never met before, and guess who will be named first when the outcome is bad. The big-name surgeon who put a tube in the wrong place when he operated on a problem that Dr. Foreigner diagnosed promptly (and correctly) generally gets a pass from families, but that doesn't mean that defense attorneys won't subpoena his records too.
Was This an "Undesirable" Patient?
A patient who had recently given birth returned with abdominal problems suspicious for gallbladder disease; she was sent home without tests to rule out problems that might require surgery, even though there was evidence of infection on her lab tests. That made me suspicious enough to turn from the medical data to the hospital face sheet, and to find the explanation: this woman was a Medicaid patient in a state that spends as little as it can on care for the poor. The hospital would have lost money if it had done an extra CT scan, and you can bet the hospital-based doctors were keeping that in mind when they discharged her two days after she left intensive care.
ER doctors hear groans from admitting doctors whenever a "bariatric" patient needs hospital care. You already know about prejudice against overweight people, but those who are more than 200 pounds overweight bring a whole set of concerns for doctors and hospital staffs: back injuries in nursing personnel, personal-hygiene problems that you don't want to hear about, and the impossibility of doing a physical exam. Add in other costs, from reinforced toilets to extra-wide CT scanners and MRI machines, and it's easy to see why patients and families are telling you that the staff had a "bad attitude."
Hospital workers are often in a hurry, and interpreter services cost money-not to mention the fact that a Cambodian or Ibo speaker may not be available right away. It's really, really tempting to use English-speaking family members to help us understand the patient's history and symptoms, but it's also a violation of the standard of care that cost one teaching hospital big bucks in a federal suit. Expecting a family member to describe grandma's gynecologic problems or bipolar disorder, or letting an underage son translate, is a red flag. Give a doctor positive points for taking the time to get a translator, and subtract them for notes like "daughter says pain and nausea have improved." This is a patient whose doctors may be doing a less than careful job.
Always check the calendar and see what day of the week things started to go wrong. Weekend rounds are often hurried because the doctor is covering for at least one colleague who's off those days; the regular doctor may be paying a moonlighter who is new to all the patients on the list. And discharges are encouraged on Fridays as both patients and doctors look forward to the weekend; if a prescription is forgotten or written illegibly, it may be impossible to phone the doctor to fix the problem. Emergency readmissions often end badly.
Pressures
Hospitals are no longer paid by the day, but by the patient's diagnoses and their severity. They deal with this by pressuring doctors to reduce unnecessary hospital days and to document as many problems as possible. While the latter may actually improve care, and extra days can lead to things like hospital-acquired infections and blood clots, this can be carried to extremes. A doctor whose "length of stay" numbers get too large is likely to find himself explaining them to the chief of his or service, or to get a letter from the hospital CEO. And their notes may list problems that have little to do with the hospital stay. (That asthma could flare up at any time, right? So it gets listed even if the patient never has a single wheeze.)
Third-party payers produce pressures in other ways too. It's a rare hospital staff meeting that doesn't include a speaker encouraging doctors to cut down on tests that could be done after discharge, since ShareCare HMO (or Medicaid, or American Helpful) won't pay for them. And whenever they're allowed to, insurance company representatives contact nurses and doctors regarding discharge plans, urging them to use less expensive rehab facilities or none at all. I would love to see a lawsuit against an insurance company that refused to pay for anything but a substandard nursing facility, even one with a high rate of hospital readmissions-but the lawsuit invariably gets filed against the doctor who ordered the transfer, and "HealthyCo told me to do it" isn't much of a defense.
Thank You
I have lost count of the "just in case" tests I've ordered just to reduce my risk of a lawsuit, but every now and then, those extra tests spot a problem I didn't expect to find. And when I see sad cases in which doctors cut corners or ignored warning signs, I'm grateful that somebody is representing the patients and families who were injured as a result. If a case isn't supported by the facts, call me, and I'll help defend your good doctors . . . but if the plaintiff claims are justified, I'm glad you're there.
This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances. Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.
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