Malpractice Suites
Discuss how physician malpractice suits can be decreased. How can a doctor be sued for malpractice? What current practices do doctors perform in order to avoid law suits? What are the impacts of these practices? How can one check for any malpractice suit against a doctor?
RIGHT PATIENT, WRONG SURGERY
The plaintiff was diagnosed with a herniated disc at L4-L5. His surgeon performed a laminectomy. During a review of the plaintiff’s postoperative X-rays, the surgeon noted that he had mistakenly removed the disc at L3-L4. The plaintiff testified that after the surgery, his condition progressively worsened.
The plaintiff’s expert testified that removal of the healthy disc caused the space between L3-L4 to collapse and the vertebrae to shift and settle. Even the defendant’s expert witness testified that the removal of the healthy disc would increase the likelihood that the plaintiff would be more susceptible to future injuries.
The trial court directed a verdict against the defendant based on the defendant’s own admission and that of his expert that he was negligent and that his negligence caused at least some injury to the patient. The defendant appealed. 1
WHAT IS YOUR VERDICT?
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Describe medical staff organization and committee structure.
• Describe the credentialing and privileging process.
• Discuss the purpose of physician supervision and monitoring.
• List and discuss common medical errors and how they lead to litigation.
• Explain how the physician–patient relationship can be improved.
This chapter provides an overview of medical ethics, medical staff organization, the credentialing process, and a review of cases focused on the legal risks of physicians. The cases presented highlight those areas in which physicians tend to be most vulnerable to lawsuits.
10.1 PRINCIPLES OF MEDICAL ETHICS
The medical profession has long subscribed to a body of ethical guidelines developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.
The following principles adopted by the American Medical Association are not laws, but rather standards of conduct that define the essentials of honorable behavior for the physician.
Code of Medical Ethics
I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific knowledge; maintain a commitment to medical education; make relevant information available to patients, colleagues, and the public; obtain consultation; and use the talents of other health professionals when indicated.
VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people. 2
The following correspondence in the form of a reality check describes one episode of a frustrated patient’s journey of being passed from physician to physician, eventually finding one she thought would help her find the answers to her mysterious disease.
The patient’s hope for answers and possible treatment in this reality check were dashed. The patient began to lose trust in the medical profession. I listened as she explained to me, “I was troubled as I stood looking at the code of medical ethics that hung so prominently in the physician’s waiting room. All the right words were there, only one thing was missing.” I asked her what was missing. She looked at me and emphatically said, “Practice.”
10.2 MEDICAL STAFF ORGANIZATION
The medical staff is formally organized with officers, committees, and bylaws. At regular intervals, the various committees of the medical staff review and analyze their responsibilities, clinical experiences, and opportunities for improvement. The responsibilities of a variety of medical staff committees are described here.
Executive Committee. The executive committee oversees the activities of the medical staff. It is responsible for recommending to the governing body such things as medical staff structure, a process for reviewing credentials and appointing members to the medical staff, a process for delineating clinical privileges, a mechanism for the participation of the medical staff in performance improvement activities, a process for peer review, a mechanism by which medical staff membership may be terminated, and a mechanism for fair hearing procedures. The executive committee reviews and acts on the reports of medical staff departmental chairpersons and designated medical staff committees. Actions requiring approval of the governing body are forwarded to the governing body for approval. Executive committee members generally include the chief of staff, medical staff officers, and department chairs. The chief executive and chief nursing officers are generally nonvoting members of the committee.
| My Hopes for Help Crumble |
When I went to your office, it was with great hopes that someone was finally going to piece together all of the bizarre symptoms I have been experiencing over the last several months and get to the cause of my pain.
I was quite frankly shocked by how I was treated as a patient—especially one experiencing a health crisis.
A medical student examined me. He wrote my history and current health problems on a small “yellow sticky pad.” You were not in the room when he examined me, and then I saw you for approximately 10 minutes.
You took the business card of my New York doctor and said you were going to call him, and then call me regarding what you thought the next steps should be.
I called you on Friday because my local doctor said that you had not called, and I was told you were on vacation until yesterday. I had asked that you call me. You never did. I called you yesterday again, but you did not answer nor did you return my call. On Monday, I received a letter from a medical student, I assume. Although I empathize with the demands on your time, I have never seen a handwritten letter, which I received, informing me of test results I provided to you prior to my appointment with you. You never mentioned the liver enzyme elevations or my February test from New York. Moreover, no mention was made regarding any plan to help me alleviate immediate problems.
Doctor, I am not a complainer or a person with a low pain tolerance. Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side when the pain kicks in, and by 3 o’clock I have to go home and lie down because I’m so weak and tired. I cannot continue to exist like this. It is not normal. If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved. Testing my cholesterol in a month will not address the problem. I’ve been treated for that for three years.
Please call or write to me so I can get another doctor if I have to.
—Anonymous
The physician never responded.
Discussion
1. Discuss how the caregivers failed in their delivery of care and, more importantly, how the patient’s needs were never fully addressed.
2. How would you address this patient’s care with the hospital’s leadership and governing body?
3. Should conduct of this nature be reported to any particular agency or should the matter just go unchecked?
Bylaws Committee. The functioning of the medical staff is described in its bylaws, rules, and regulations, which must be reviewed and approved by the organization’s governing body. Bylaws must be kept current, and the governing body must approve recommended changes. The bylaws describe the various membership categories of the medical staff (e.g., active, courtesy, consultative, and allied professional staff) as well as the process for obtaining privileges.
Blood and Transfusion Committee. The blood and transfusion committee develops blood usage policies and procedures. It is responsible for monitoring transfusion services and reviewing indications for transfusions, blood ordering practices, each transfusion episode, and transfusion reactions. The committee reports its findings and recommendations to the medical staff executive committee.
Credentials Committee. The credentials committee oversees the application process for medical staff applicants, requests for clinical privileges, and reappointments to the medical staff. The committee makes its recommendations to the medical executive committee.
Infection Control Committee. The infection control committee is generally responsible for the development of policies and procedures for investigating, controlling, and preventing infections.
Medical Records Committee. The medical records committee develops policies and procedures as they pertain to the management of medical records, including release, security, and storage. The committee determines the format of complete medical records and reviews medical records for accuracy, completeness, legibility, and timely completion. Medical records are also reviewed for clinical pertinence. The committee ensures that medical records reflect the condition and progress of the patient, including the results of all tests and therapy given, and makes recommendations for disciplinary action as necessary.
Pharmacy and Therapeutics Committee. The pharmacy and therapeutics committee is generally charged with developing policies and procedures relating to the selection, procurement, distribution, handling, use, and safe administration of drugs, biologicals, and diagnostic testing material. The committee oversees the development and maintenance of a drug formulary. The committee also evaluates and approves protocols for the use of investigational or experimental drugs. The committee oversees the tracking of medication errors and adverse drug reactions; the management, control, and effective and safe use of medications through monitoring and evaluation; and the monitoring of problem-prone, high-risk, and high-volume medications utilizing parameters such as appropriateness, safety, effectiveness, medication errors, food–drug interactions, drug–drug interactions, drug–disease interactions, and adverse drug reactions. The committee also performs other such activities that may be delegated to it by the medical executive committee.
Quality Improvement Council. The quality improvement council functions as a patient care assessment and improvement committee. The council generally consists of representatives from the organization’s administration, governing body, medical staff, and nursing.
Tissue Committee. The tissue committee reviews all surgical procedures. Surgical case reviews address the justification and indications for surgical procedures.
Representation on the tissue committee should include the departments of surgery, anesthesiology, pathology, nursing, risk management, and administration.
Utilization Review Committee. The utilization review committee monitors and evaluates utilization issues such as medical necessity and appropriateness of admission and continued stay, as well as delay in the provision of diagnostic, therapeutic, and supportive services. The utilization review committee ensures that each patient is treated at an appropriate level of care. Objectives of the committee include timely transfer of patients requiring alternate levels of care; promotion of the efficient and effective use of the organization’s resources; adherence to quality utilization standards of third-party payers; maintenance of high-quality, cost-effective care; and identification of opportunities for improvement.
10.3 MEDICAL DIRECTOR
The medical director serves as a liaison between the medical staff and the organization’s governing body and management. The medical director should have clearly written agreements with the organization, including duties, responsibilities, and compensation arrangements. State nursing home codes often provide for the designation of either a full-time or part-time physician to serve as medical director. The responsibilities of a medical director include enforcing the bylaws of the governing body and medical staff and monitoring the quality of medical care in the organization.
The medical director of an organization can be liable for failing to perform his or her duties and responsibilities. When a Texas nursing home was indicted by a grand jury in 1981 for the deaths of several residents, the medical director was also indicted. 3 His plea that he merely signed papers and attended meetings did not absolve him of the responsibility to ensure the adequacy and the appropriateness of medical services in the organization.
10.4 MEDICAL STAFF PRIVILEGES
Medical staff privileges are restricted to those professionals who fulfill the requirements as described in an organization’s medical staff bylaws. Although cognizant of the importance of medical staff membership, the governing body must meet its obligation to maintain standards of good medical practice in dealing with matters of staff appointment, credentialing, and the disciplining of physicians for such things as disruptive behavior, incompetence, psychological problems, criminal actions, and substance abuse.
Appointment to the medical staff and medical staff privileges should be granted only after there has been a thorough investigation of the applicant. The delineation of clinical privileges should be discipline-specific and based on appropriate predetermined criteria that adhere to national standards. The appointment, privileging, and credentialing process are discussed below.
Application
The application should include information regarding the applicant’s medical school; internship; residency program; license to practice medicine; board certification; fellowship; medical society membership; malpractice coverage; unique skills and talents; privileges requested and specialty; availability to provide on-call emergency department coverage where applicable; availability to serve on medical staff and/or organization committees; medical staff appointments and privileges at other healthcare organizations; disciplinary actions against the applicant; unexplained breaks in work history; voluntary and/or involuntary limitations or relinquishment of staff privileges; and office location (geographic requirements should not be unreasonably restrictive; if the applicant does not meet the organization’s geographic requirements for residence and office location, provision should be available in the bylaws for exceptions that might be necessary to attract high-quality consulting staff). Board certification, is not generally acceptable criteria for determining eligibility for medical staff appointment.
The primary function of physician board certification is to provide a platform for physician specialists to demonstrate a mastery of the core competencies required to provide the best possible care in a given medical specialty. The American Board of Physician Specialties (ABPS) governs 18 specialty boards that allow physicians to prove they possess the skill and experience necessary to practice their chosen specialties. 4
Fellowship training and medical society membership are also not normally required for medical staff appointment.
Medical Staff Bylaws
The medical staff bylaws should be approved by the medical executive committee and governing body. All applicants for medical staff privileges should be required to sign a statement attesting to the fact that the medical staff bylaws have been read and understood and that the physician agrees to abide by the bylaws and other policies and procedures that may be adopted from time to time by the organization.
Physical and Mental Status
An applicant’s physical and mental status should be addressed prior to the granting of medical appointments and staff privileges. Credentialed members of the medical staff should undergo a medical evaluation prior to reappointment to the medical staff.
Consent for Release of Information
Consent for release of information from third parties should be obtained from the applicant.
Certificate of Insurance
The applicant should provide evidence of professional liability insurance. The insurance policy should provide minimum levels of insurance coverage, with limits (e.g., $1 million to $3 million) determined by the organization.
State Licensure
A physician’s right to practice medicine is subject to the licensing laws contained in the statutes of the state in which the physician resides. The right to practice medicine is not a vested right, but is a condition of a right subordinate to the police power of the state to protect and preserve public health. Although a state has power to regulate the practice of medicine, for the benefit of the public health and welfare, this power is restricted. Regulations must be reasonably related to the public health and welfare and must not amount to arbitrary or unreasonable interference with the right to practice one’s profession. Health professions commonly requiring licensure include chiropractors, dentists, nurses, nurse practitioners, pharmacists, physicians’ assistants, optometrists, osteopaths, physicians, and podiatrists. A statute mandating that the Medical Board of California disclose to the public information regarding its licensees (Cal. Bus. & Prof. Code, § 803.1) and the statute mandating that the board post on the Internet information pertaining to its licensees (Section 2027) did not prohibit the board from posting on its website information regarding a licensee’s completion of probation with a listing of the case number of the case from which the probation arose. 5 Grounds for the revocation of a license to practice medicine include: a clear demonstration of the lack of good moral character, deliberate falsification of a patient’s medical record (to protect one’s own interests at the expense of the patient), intentional fraudulent advertising, gross incompetence, sexual misconduct, substance abuse, performance of unnecessary medical procedures, billing for services not performed, and disruptive behavior.
National Practitioner Data Bank
Healthcare organizations must query the National Practitioner Data Bank (NPDB) for information on applicants seeking medical staff privileges and every 2 years on the renewal of appointments. The NPDB’s principal purpose is to facilitate a more comprehensive review of professional credentials.
References
References should be checked thoroughly. Failure to do so can lead to corporate liability for a physician’s negligent acts. Both written and oral references should be obtained from previous organizations with which the applicant has been affiliated. An action was brought against the hospital in Rule v. Lutheran Hospitals & Homes Society of America 6 for birth injuries sustained during an infant’s breech delivery. The action was based on allegations that the hospital negligently failed to investigate the qualifications of the attending physician before granting him privileges. The jury’s verdict of $650,000 was supported by evidence that the hospital failed to check with other hospitals where the physician had practiced. The physician’s privileges at one hospital had been limited in that breech deliveries had to be performed under supervision.
Interview Process
Prior to interviewing the applicant, the following questions should be answered:
1. Have all documents been received prior to the interview?
2. Are there any unaccounted-for breaks or gaps in education or employment?
3. Has any disciplinary action or misconduct investigation been initiated or are any pending against the applicant by any licensing body?
4. Has the applicant’s license to practice medicine in any state ever been denied, limited, suspended, or revoked?
5. Have the applicant’s medical staff privileges ever been suspended, diminished, revoked, or refused at any healthcare organization?
6. Has the applicant ever withdrawn an application or resigned from any medical staff to avoid disciplinary action prior to a decision being rendered by an organization regarding application for membership?
7. Has the applicant ever been named as a defendant in a lawsuit?
8. Has the applicant ever been named as a defendant in a criminal proceeding?
9. Is the applicant available for emergency on-call coverage?
10. Does the applicant have back-up and cross-coverage?
11. Does the applicant have any special skills or talents?
12. Has the applicant reviewed medical staff bylaws, rules, and regulations, and, where applicable, departmental rules and regulations?
13. Does the applicant agree to abide by the medical staff bylaws, rules, regulations, and other policies and procedures set by the organization?
14. Is the applicant a team player? Can he or she work well with others?
15. Has the applicant ever been restricted from participating in any private or government (e.g., Medicare, Medicaid) health insurance program?
16. Has the applicant’s malpractice insurance coverage ever been terminated by action of an insurance carrier?
17. Has the applicant ever been denied malpractice insurance coverage?
18. Have there been any settlements and/or judgments against the applicant?
19. Does the applicant have any physical or mental impairments that could affect his or her ability to practice the privileges requested?
Delineation of Clinical Privileges
The delineation of clinical privileges is the process by which the medical staff determines precisely what procedures a physician is authorized to perform. This decision is based on predetermined criteria as to what credentials are necessary to competently perform the privileges requested, including education and supervised practice to verify the skills necessary to perform the privileges being requested.
Limitations on Privileges Requested
Dr. Warnick, a pediatrician, obtained associate staff privileges at the Natchez Community Hospital in 1997. She later applied for full privileges through the hospital’s credentials committee. Concern was raised about her alleged difficulty with the intubation of children. As a result, action on Warnick’s request for full privileges was deferred. In May of 1998, the credentials committee recommended full privileges with the exception of neonatal resuscitation. After several in-hospital appeals, Warnick filed a lawsuit. The court determined that there was substantial evidence to support the hospital’s suspension of Warnick’s resuscitation privileges and her right to due process was not violated.
Hospitals licensed in Mississippi pursuant to statute are authorized to suspend, deny, revoke, or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board of such hospital, after consultation with the medical staff, considers such physician to be unqualified because of any of the acts set forth in Miss. Code Ann. § 73-25-93 (1998), provided that the procedures for such actions comply with the hospital and/or medical staff bylaw requirements for due process. In this case, the hospital and medical staff abided by the bylaws and requirements for due process, as evidenced by two hearings afforded to Warnick. She did not complain that she was unable to present all relevant evidence. Her claims were heard in a timely and meaningful manner. 7
Practicing Outside Field of Competency
A physician should practice discretion when treating a patient outside his or her field of expertise or competence. The standard of care required in a malpractice case will be that of the specialty in which a physician is treating, whether or not he or she has been credentialed in that specialty.
In a California case, Carrasco v. Bankoff, 8 a small boy suffering third-degree burns over 18% of his body was admitted to a hospital. During his initial confinement, there was little done except to occasionally dress and redress the burned area. At the end of a 53-day confinement, the patient was suffering hypergranulation of the burned area and muscular-skeletal dysfunction. The surgeon treating him was not a board-certified plastic surgeon and apparently not properly trained in the management of burn cases. At trial, the patient’s medical expert, a plastic surgeon who assumed responsibility for care after the first hospitalization, outlined the accepted medical practice in cases of this nature. The first surgeon acknowledged this accepted practice. The court held that there was substantial evidence to permit a finding of professional negligence because of the defendant surgeon’s failure to perform to the accepted standard of care and that such failure resulted in the patient’s injury.
Governing Body Responsibility
The governing body has the ultimate duty, responsibility, and authority to select the organization’s professional staff and ensure that applicants to the organization’s medical staff are qualified to perform the clinical privileges requested. The duty to select members of the medical staff is legally vested in the governing body as the body charged with managing the organization. In light of the importance of staff appointments, the courts have prohibited an organization from acting unreasonably or capriciously in rejecting physicians for staff appointments or in limiting their privileges.
Misrepresentation of Credentials
There was reliable, probative, and substantial evidence in Graor v. State Medical Board 9 to support the Ohio State Medical Board’s decision to permanently revoke a physician’s license for misrepresenting his credentials by claiming that he was board certified in internal medicine. The evidence submitted supported that, in many instances, the physician falsely indicated that he had American Board of Internal Medicine certification. The board contended that the hearing examiner addressed the physician’s credibility and found many statements to support her conclusion that the physician intended to misrepresent his board status.
Appeal Process
An appeal process should be described in the medical staff bylaws to cover issues such as the denial of professional staff privileges, grievances, and disciplinary actions. The governing body should reserve the right to hear any appeals and be the final decision maker within the organization. A physician whose privileges are either suspended or terminated must exhaust all remedies provided in a hospital’s bylaws, rules, and regulations before considering legal action. The physician in Eidelson v. Archer 10 failed to pursue the hospital’s internal appeal procedure before bringing a suit. As a result, the Alaska Supreme Court reversed a superior court’s judgment for the physician in his action for damages.
Reappointments
Each physician’s credentials and departmental evaluations should be reviewed at a minimum of every 2 years. The medical staff must provide effective mechanisms for monitoring and evaluating the quality of patient care and the clinical performance of physicians. For problematic physicians, consideration should be given to privileges with supervision, a reduction in privileges, suspension of privileges with purpose (e.g., suspension pending further training), or termination of privileges.
10.5 COMMON MEDICAL ERRORS
The NPDB 2012 Annual Report shows that between 2003 and 2012, the number of adverse actions reported to the NPDB related to physicians and dentists increased from 6,149 to 7,765, representing a 26 percent increase. The trend indicates that a small percentage of physicians are responsible for a large proportion of malpractice dollars paid to injured parties. 11
This section provides an overview of some of the more common medical errors as they relate to patient assessments, diagnosis, treatment, and follow-up care. Infections, obstetrics, and psychiatry are discussed later in this chapter to introduce the reader to other common physician risks in the practice of medicine. As with many cases reviewed in the text, there are often multiple headings under which a case could be placed. For example, a poor assessment could lead to the wrong clinical tests, resulting in inappropriate treatment and follow-up care, which can result in major patient injuries or even death. It is important that the reader begin to critically analyze each case and see its application in the overall provision of quality patient care.
It is not enough to perform an assessment and order and get the correct lab test that supports a physician’s order for a potassium infusion, which is started by a nurse. Quality care requires that each caregiver be aware of all the hazards that could lead to patient harm the moment he or she walks into that patient’s room (e.g., is the infusion infiltrating the patient’s tissue?).
The reader should keep in mind when reading this section that “Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties … The fact that a physician charged with allegedly illegal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.” 12
10.6 PATIENT ASSESSMENTS
Patient assessments involve the systematic collection and analysis of patient-specific data that are necessary to determine a patient’s care and treatment plan. A patient’s plan of care is dependent on the quality of those assessments conducted by the practitioners of the various disciplines (e.g., physicians, nurses, dietitians, physical therapists).
The physician’s assessment is based on the patient’s history and physical examination. It must be conducted for elective admissions within 24 hours of a patient’s admission to the hospital. Emergency patients are, out of necessity, evaluated and treated promptly on arrival to the hospital’s emergency department. The findings of the clinical examination are of vital importance in determining the patient’s plan of care. The assessment is the process by which a doctor investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems. A cursory and negligent assessment can lead to a misdiagnosis of the patient’s health problems and/or care needs and, consequently, to poor care. To ensure a comprehensive process for assessing patient care needs, the organization should conduct a self-check, which would include:
• There is a written policy for conducting screenings and assessments.
• Second opinions are obtained as necessary; literature is searched; and other resources are used to provide current, timely, and accurate diagnoses and treatment options for each patient.
• Criteria for nutritional screens and assessments have been developed and approved.
• Nutritional screens and assessments are performed.
• Patients on special diets are monitored to ensure that they have the appropriate food tray.
• Functional screens have been developed and implemented.
• Patients are informed of the risks, benefits, and alternatives to anesthesia, surgical procedures, and the administration of blood or blood products.
• Consent forms are executed and placed in the patient’s record.
• Responsibility has been assigned for ensuring that appropriate surgical equipment, supplies, and staffing are available prior to the administration of anesthesia.
• A pertinent and thorough history and physical have been completed and reviewed prior to surgery.
• A process exists by which there is correlation of pathology and diagnostic findings.
• A preanesthesia assessment has been conducted.
• The surgeon has been credentialed to perform the surgical procedure that he or she is about to perform.
• Vital sign, airway, and surgical site assessments are continuously monitored during the procedure.
• A procedure is in place for conducting instrument and sponge counts prior to closing the surgical site.
• Procedures exist for cleaning and storing all equipment following each invasive procedure.