Issues in Emergency Medicine

Published on 10/02/2015 by admin

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Medical-Legal Issues in Emergency Medicine

Geetika Gupta, Gregory L. Henry

image      Key Points

• Medicine is a business and is therefore covered under the usual concepts of business law.

• Medical-legal considerations are an integral part of every doctor-patient interaction. Complete physicians understand these aspects of care at the same level that they understand the science of such care.

• Human interactive skills reduce lawsuits and improve patient satisfaction.

• The chart is a physician’s lifeboat in a sea of medical adversity.

• The physician is not a bystander in the medical-legal process. The physician needs to be an active participant in the entire endeavor.

• Specific medical-legal situations can be analyzed on a point-by-point basis. Specific actions and documentation programs can go a long way toward reducing legal action.

• Specific medical-legal problems dominate the lawsuit landscape in emergency medicine. Knowing the principal areas of risk and dealing with key points in advance are both good medicine and good risk management.

Scope

The nature of malpractice—what it is and what it is not—is often difficult for the medical mind to understand. Physicians are Apollonian in upbringing. They believe in science, they believe in what they can see, and they believe in proof. Malpractice is much more a societal concept. It is a battle that takes place in the arena of the court system. The usual concepts that dominate scientific thinking do not hold sway in court. Physicians must come to grips with the idea that ordinary citizens will decide whether they have acted in the best interest of a patient. This never sits well in the hearts and minds of physicians. The general feeling in the medical community is that the medical community should police itself, but this is not how the system is constructed, and physicians must become accustomed to the idea that issues that may seem trivial in the world of science are not so in the world of human interaction.

Medicine is a profession. It is not a pure science. It is practiced on and with ordinary human beings. People respond both positively and negatively to our actions, and this response baffles physicians who have not analyzed the human interaction situation. To a large degree, physicians are in the business of comfort and reassurance. Only a doctor knows the difference between feeling bad and being sick. True professionals are persons who do what they do to the best of their ability at any hour of the day or night with people with whom they would least like to do it. Pure science and emergency medicine have very little to do with each other. Truly skilled emergency physicians (EPs) can make patients want what they actually need. Part of the goal of every EP-patient interaction should be an elevation of the patient’s understanding of the disease process and an appreciation for what was required for the diagnosis and treatment.

Be Service Oriented

It is a sign of maturity when an EP recognizes that he or she is in a service industry. In a service industry, perception is everything. Perception is the only reality. It makes very little difference whether patients received excellent care if they believed that it was substandard. Bringing the patient and family along in an understanding of the process is essential in proper risk management.

Looking for innate fairness in such a system is a waste of time. No one has ever guaranteed that the court system decides issues fairly. The court system is a mechanism for resolution of social conflict. The courts set public policy and resolve disputes. This does not mean that disputes are always decided fairly or in a scientific context. Courts decide disputes based on human perceptions, and knowing this, the physician can make intelligent decisions about how to practice. Intelligent physicians understand that the patient’s view of the situation needs to be brought in line with the dictates of science. Sometimes this is simple, and sometimes it is not. However, physicians who ignore patients because of indifference or arrogance will soon have a new name: defendant physician. In general, to be named in a medical lawsuit is to lose. Physicians often have the gross misconception that if they are named in a suit and the suit is dropped or they win in court, they have won. The only way to win in the lawsuit game is not to play. Everything costs money. Evaluation of complaint letters, initial processing of legal suits, the deposition phase of discovery, and finally, going to court all have their costs. The actual dollar figure to defend lawsuits has risen rapidly since the late 1980s and may constitute up to half the expenses of the insurance company in handling medical-legal actions.

Physicians need to understand the nonfinancial effects of lawsuits on their personality. Excellent information in the literature documents that a physician under suit is much more likely to become depressed. Physicians under the threat of suit also have a decrease in decision-making ability. They have a greater reported incidence of ulcers, divorce, and other social problems. This is understandable when one considers that a physician’s image of self is integrally related to his or her medical degree. The physician has spent a life of study and hard work, from leaving high school to finishing a residency, a period of approximately 12 years, devoted to clinical excellence. When all of this is challenged in the court of law, it hits home to the core of a physician’s soul. The financial cost of malpractice is not the only cost. Any physician who has been sued understands the emotional stress and pain that comes with the process.

Emergency medicine is the ideal setup for poor doctor-patient interactions and malpractice problems. It is when one sees patients at the worst moments of their lives. We often have to make quick decisions on what is an incomplete database. We also have no long-term relationships to provide clues or insight into the nature of the disease. Similarly, no long-term building of emotional bonds exists to prevent the patient from suing should the outcome be negative. In short, emergency medicine is the ideal climate for things that go wrong to be transferred to the legal arena as a means of retribution.

Human psychology leads us to understand that patients will behave as they would like and not as we would like. Residency training programs in the United States do not place a high value on interactive excellence. It is essentially antithetic to the university training program to spend more time on pleasing the patient than on understanding the science. A natural transition occurs when the resident finishes training and moves into a practice setting; a shift in priorities takes place. A young physician does not learn attitudes from books or meaningless statements mouthed at grand rounds. Young EPs learn how to behave and how to practice from watching their fellow, more senior residents and the attending staff who oversee patient care. It is at this level where malpractice will either be won or be lost.

Small Things Count

It is often difficult for physicians to understand that small things count. How they are dressed, how they present themselves, how they introduce themselves to their patients, and their use of words may be a bigger factor in whether they are sued than their actual scientific thought processes. The art of medicine is not a “tack on” but an essential fundamental base in creating a productive practice. A doctor who is a great communicator engenders better cooperation and has better results from patients. Such physicians have fewer complaint letters. They receive more help from emergency staff members and consultant physicians and consequently have a less stressful professional life.

Without question, the science of medicine concentrates on two principles: find it and fix it. Diagnosis and disposition are the principal scientific elements of what we do. However, physicians should not underestimate their effect on the thought process of patients in creating an atmosphere of caring. In emergency medicine we are in the “bad outcome business.” It is not whether something will go wrong, but rather when. A physician who has laid proper groundwork with the patient is in a much better position to avoid a medical-legal confrontation.

Barriers to Proper Care

The EP is often in the position of being emotionally hijacked. Information flows in from patients, their families, nurses, and emergency medical technicians, for example. Frequently, a physician’s perception of a case can be altered by a word or phrase that sets off barriers to intelligent health care. This is the great problem in emergency medicine. Too many times we are prejudiced before we see the patient. When one picks up a chart and the chief complaint says terminal fibromyalgia, recurrent back pain, or recurrent migraine headache, negative connotations and stereotypes often negatively color the doctor-patient interaction before it begins. Certain phrases and situations, again, set off irrational defense mechanisms in the physician that are difficult to overcome. As soon as the patient challenges the physician by asking, “Did you call my doctor yet?,” there is a strong tendency on the part of the physician to take offense.

Whenever a psychiatric diagnosis is written on the chart, beware. Physicians can ascribe virtually any other problem to mental health complaints. This approach is dangerous and can lead one to overlook obvious and treatable diseases. The concept of signal-to-noise ratio dominates information gathering in emergency medicine. We receive so many bits and fragments of information that are truly extraneous to the problem around us that it is often very difficult to focus on the actual patient and the possible disease entity. The physician needs to be aware that these natural human tendencies can manipulate thought processes to the detriment of both the patient and the doctor.

Establishing the Relationship

Good things happen only if they are planned; bad things happen all by themselves. It is important for EPs to have a structured and stereotypic way of greeting patients and gathering information. Some physicians object to this “acting” because they believe that it is somehow beneath their dignity. Nothing could be further from the case. Patients expect and deserve a compassionate physician who will dedicate at least some time to listening to their problem. A careful script is the best way to maintain a sense of decorum and dignity in the interaction. Proper introductions and shaking hands go a long way toward reassuring patients that the physician is there for their benefit. If there is one excellent risk management tool in the ED, it is the chair. EPs should sit down for at least a few moments, if they can, to illustrate to the patient that they are sincerely interested in listening to the patient’s problem. The physician, under our legal system, is the retained agent and servant of the patient. The degree to which physicians are comfortable with being a servant is the degree to which they are comfortable with being a doctor. Box 1 is a list of simple rules that should help facilitate the doctor-patient interaction.

Box 1 Rules for Physician-Patient Interactions

• It does not matter how long they waited; it was too long. Never argue with patients over the amount of time that they waited.

• Never use excuses, such as you are working short staffed or “I’ve been here all day.” The patient, quite frankly, does not care.

• Always apologize for the wait. As soon as you have apologized for the wait, you have at least acknowledged that the patient’s time is as valuable as yours and you understand that waiting is not a comfortable situation. This is just common courtesy and goes a long way toward making the doctor-patient interaction more desirable.

• Thank people for coming in. Business goes where it is invited and stays where it is appreciated. There is no reason not to thank people for using your institution. It is again common courtesy and is viewed as a sign of acceptance and reassurance by all.

• Trivialization of minor complaints can lead to major problems. Phrases such as “It’s only a virus” are not terribly useful. Patients will listen to your discussion of why antibiotics are not going to be ordered and why further tests are not going to be performed if the reasons are stated in a manner and context that they can understand. Most patients believe that they have a legitimate reason to be in the emergency department. To be scolded because it is the doctor’s perception that theirs is a minor illness never helps the doctor-patient interaction and really does not prevent further emergency department visits. This type of activity is not useful in the long run.

Medical-Legal System Organization and Problems

The legal world is divided into two major parts.

Part 1: Criminal acts—These activities are so heinous to the fabric of society that society acts to protect itself.

Part 2: Civil law—This part basically consists of resolution of disputes in which the state acts as the forum for various parties to resolve conflicts.

The history of malpractice is long and varied. As early as the Code of Hammurabi in 1760 BCE, physicians could have their hands amputated if a patient died at surgery. The Code of Justinian in 600 CE also had laws governing physicians and pharmacy. The U.S. justice system is based on English law. Law courts from 1290 CE have records of resolving medical malpractice cases. A lawsuit is again the societal way of resolving a dispute. It takes place in the greater public and civic arena and is not under control of the medical system.

The EP should understand the various types of law. Substantive law states that specific activities are either allowed or not allowed within society. Procedural law dictates when to carry out various activities. Most malpractice falls under the realm of something called common law. Common law is case law. Judges base decisions on what has happened in the past. This is the concept of stare decisis. This Latin phrase, meaning “what has been will be,” states that courts are to decide cases based on the tradition of the law until new law is made. Because we have 50 states, there are 50 different collections of U.S. common law. Although the basic rules are similar, the details vary from state to state. It is essential that EPs know the law in the states in which they are practicing.

All English law is based on the concept of standard of care. The term standard of care is often misunderstood. Standard of care is what an ordinary physician of like or similar training would do under like or similar circumstances. It is not just one action or one mode of care. There are often simultaneously multiple ways of treating a medical condition, and excellent physicians frequently disagree about the best mode of therapy for a particular problem. The standard of care is not the “best” care that may be available. It is what is reasonable. Acceptable care covers a large range of possibilities. In truth, the standard of care is constantly shifting as our knowledge base changes. The standard of care for myocardial infarction in 1960 would certainly be below the standard of care in 2006.

Structure of A Lawsuit

The structural base of a lawsuit has four components. The plaintiff is charged with showing that the physician has violated all these components in some way. First is duty. Duty is what is required by a physician practicing in an emergency department (ED) in the time frame specified by the case. The duty of emergency personnel, for example, to see all patients who come to the ED, has been clear since passage of the Emergency Medical Treatment and Active Labor Act/Consolidated Omnibus Reconciliation Act (EMTALA/COBRA) beginning in 1986. Your duty is to see everyone who comes to the ED and to treat patients up to your level of ability. The next aspect is breach of that duty. The injured party must show that the physician acted in such a way that requirements for performance of that duty were not met.

Harm done is what actually happened. Very often, no matter whether a physician practiced perfect care or did nothing at all, the outcome would be the same. The actual harm done to the patient is an aspect of the case that is often avoided, but it is truly what is compensated in a court of law. The award for malpractice is money, so financial damage must be presented as a part of the process.

Last is the concept of proximate cause. This is the relationship between breach of duty and the harm actually done to the patient. The fact that a patient dies may not be in question. The question is whether the actions or inactions of the physician actually led to the patient’s death. The proximate cause is precisely what expert testimony establishes as part of the civil process.

Engaging A Defense: First Steps

Physicians often take the position that they are merely injured victims in this system. Nothing could be further from the truth. The physician has the opportunity to participate in and to affect the outcome in every medical-legal situation. The biggest mistakes that doctors make in the legal process are as follows:

• Ignoring the claim and pretending that it did not happen. Nothing good comes through registered mail. Physicians must notify their group and hospital whenever a legal summons is issued with regard to the question of malpractice. Physicians can be found guilty and can have monetary damages assessed against them under a default judgment if they do not respond in the proper time frame.

• Going into a panic and talking to colleagues about the facts of the case. A physician should not discuss a pending legal action except in the presence of the defense attorney or in the setting of a properly constituted quality assurance meeting. A physician must avoid the temptation to “try the case” with friends.

• Contacting the patient. Once a lawsuit has begun, it is absolutely forbidden for the physician to make any calls, write letters, or attempt to contact the patient who has brought the action. Once a specific legal action has been taken, all interaction between parties should be conducted through their attorneys.

• Failure to preserve the integrity of the chart. Once a legal action has commenced, the chart should be copied, and the original chart should be sealed and put in a secure place in hospital records. No physician should ever, in any way, alter a medical record after the fact.

• Failure to assist counsel. The physician’s input is absolutely required and is mandated in the malpractice policy. Total candor is necessary, and no lawyer likes a surprise. Failure to cooperate with the defense counsel may invalidate a physician’s insurance policy. It must be stressed that you should feel comfortable with the counsel who is assigned to you. If you feel that you are not being represented adequately, ask your insurer for a reassignment or review of the current counsel. Remember that it is your medical license that is on the line.

• Displaying an arrogant, hostile, or defensive attitude. Physicians must realize that they are in business. A lawsuit is a part of business. No juror wants to see a physician’s God complex expressed in a deposition or from the stand. A simple, calm, and caring explanation of what actually happened goes best in court. It is important for the physician to not let pride or a sense of injury stand in the way of an intelligent defense.

• Thinking the trial is a search for truth. A trial is a dispute resolution process. No truth finding is involved. Lawyers generally do not care about the truth; they care about winning and about the money. Cases are often settled because of the economic implications. Although a case should obtain a verdict for the defense, it may not merit the cost that will be incurred in taking it to trial. If the case does go to trial, everything in the trial matters: the dress and manner of the physician, the personality and politics of the judge, the quality of the lawyers, the degree of sympathy for the plaintiff and family, and the quality of the experts. In this situation, an intelligent physician is an active participant who helps obtain the best experts to help defend him or her in court.

• Assuming that the legal process will not affect you. Physicians should take the process seriously, even at a subconscious level. A physician should be prepared to seek emotional help, as well as legal help, when the strain of a lawsuit hits.

• Knowing when settlement is the right solution. The physician should not ask a mediocre complaint expert to salvage the case. Not listening to medical and legal experts is a mistake. Certain cases are losers. The person least able to decide whether a case needs to be settled is the physician involved in the case. Other physicians with experience in medical malpractice and who know what wins and loses in court need to be involved in assessing the case. The effect of losing a lawsuit on the group, the hospital, and the emergency contract should not be underestimated.

Remember to confirm that the settlement release lists your name specifically. If you believe that a case is being pushed toward trial and you are not in agreement, discuss this with your attorney and consider filing a “Bad Faith Claim” against the insurer. This will help secure your personal finances in the event that the case settles higher than your policy limits. The insurer will need to come up with additional funds to cover the verdict. In addition, always entertain discussion of the national databank reporting with your counsel and options regarding the language of the settlement.

• Casually blaming another provider. No physician should ever make casual, derogatory comments about anyone else’s care. Physicians are responsible for the care that they have provided, not for the care of other physicians’ patients. Physician infighting raises the cost of cases and does no one, including the patient, any good.

• Expecting a quick resolution. EPs, by nature, desire rapid resolution of a problem. Law moves in a time frame of its own. It often takes years to resolve a case. The physician needs to understand that such processes are not what a physician would want.

Charting and the Medical Record

A medical chart is produced for a reason. Health care workers have less than perfect memories, and as the time wanes from seeing a patient, the exact details also disappear. The principal document in any medical malpractice suit against an EP is the chart generated in the ED at the time of the visit in question. The only things that really go to court with a physician are the patient’s medical record and the physician’s credibility. The chart is the only document that the plaintiff attorney has to understand what happened and to be able to decide whether bringing legal action is worthwhile.

Although the chart has multiple functions (e.g., billing, coding, registration), to the EP it is important documentation of the care given. A patient may have received excellent care and have a poor chart, but it is rare that a patient receives poor care when charting is excellent. However, multiple issues with regard to a chart arise in every lawsuit.

Legibility and Decipherability

Legibility and decipherability are different concepts. It is no longer adequate that a chart be decipherable. Handwritten entries in a chart must be legible to the average person. Actions can now be brought by hospitals against physicians for poor handwriting. Readability also becomes an issue when it comes to discharge instructions. Legibility-related errors in medications or in implementing other therapies are always potentially explosive for a jury.

Timeliness of Making A Record

All events and entries made on the chart should be timed. When a legal case is reconstructed years later in a courtroom, it is important for the defense to know what happened when. The function of the nursing notes, in particular, is to be a guide to the sojourn of a patient through the ED. When the patient arrives, when triage is performed, when the patient is first seen by the EP, and when various studies are ordered and carried out can become an issue in virtually any case.

Charting Useless Information

Do what you chart, but chart what you do. Comments on history and physical examination not performed will not go well in court. Vital signs should be determined as needed, but if they are evaluated and found to be abnormal, they should be addressed. Unaddressed vital signs are a significant problem in emergency medicine. Most vital signs do not need rapid reevaluation, but documentation that you have informed the patient that he has, for example, mildly elevated blood pressure that should be followed up by the family physician goes a long way in defending the EP should problems arise in the future.

Altering the Medical Record

When medical records need adjustment, such corrections should be made in an obvious and straightforward manner. The EP should never cross out any other health care professional’s note. All additions and corrections to the chart need to be dated and timed. A “doctored record” raises credibility questions. It is important that there be no devious attempt to correct or alter a chart. Nefarious correction of the medical chart is now a federal crime.

Electronic Medical Records

The electronic medical record (EMR) is here to stay. It has many benefits, including time stamping of orders, records, and charting. It also allows health care workers to access old charts at the push of a button. Along with the good there is the bad. EMRs are notorious for having incorrect information because of pushing forward of out-of-date templates or generic templates. It is critical to review these templates before incorporating the information into the chart. The EMR is also at risk to others using your password-protected access and charting in your name. It is crucial to protect your passwords and sign out once you have left a workstation. The law has yet to define what the standard is now that all the previous records of a patient are readily accessible to the EP, as well as the EP’s responsibility in reviewing them. Finally, remember to read the document or orders before you sign them electronically.

Discrepancies Among Professionals

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