Malpractice: A Guide to Getting Sued

This primer on malpractice is an excellent review for all providers regardless of their level of experience. It divides this dark side of practice experience into two realms: protection and defense.

The article is, in reality, a basic “course” that has as its last chapter what should be the first: "How to Avoid Getting Sued", and goes through common sense steps to reduce risk, including being sure you have the right diagnosis, asking for help, retiring when it is time, informing patients of needed tests, being friendly, communicative, and unrushed, following up, and documenting well.  No kidding!

When it comes to what to do, and how to respond when a suit is attempted or initiated, the article notes among other things: “Know how to prepare for depositions and trials to increase your chances of winning” and “Evaluate when to settle vs when to go to trial by weighing key factors.”

Throughout the piece, key factors that lead to malpractice claims are highlighted, including:

• Poor communication
• Not listening
• Not following up labs, tests, and outcomes
• Lack of supervision of team members
• Bad outcomes
• Bad “Luck”
• Being at the wrong place at the wrong time (also known as bad luck)
• System errors- Electronic Health Record issues
• “Lottery Mentality” of some patients (looking to sue they are watching you)
• Being named with multiple other providers (lawyers taking the deep pocket approach that casts a wide net)

Some easy(?) solutions to consider:

• Let the patient talk interrupted for 1-2 minutes before interrupting
• Find out his/her/family’s motivation for the visit
• Find out what the patient/family is concerned about and focus on those issues
• You may have to consciously work to include family members or surrogates
• Apologize for making them wait for you even if they have not
• Control expectations (any test whose results you expect in an hour, should be noted to the patient as requiring three hours)
• Always attempt to involve the patient and family in decision process
• Have a robust follow-up system for all data that is outside of normal range, potentially problematic, or of concern. Also follow up on all patients who were extensively evaluated to be sure they are doing better and to encourage their effort at follow up. Be sure these follow up efforts are well documented.
• Talk in common language without medical jargon (aim at 6th grade level of comprehension)
• Have the patient repeat what the plan is before they leave
• Create focused documentation with pertinent positives and negatives and a cohesive follow-up plan

The bottom line is that when a patient perceives that you are working on his behalf, that you care about him, he (or she) will be reluctant to sue even if inevitably some things go wrong.

What is the Problem with Interoperability?

In a recent article by Dave Levin, MD, the astute and experienced physician points out the "reasonable, but incorrect assumption that two installations of the same EMR can easily share data...The hard truth is that every implementation of an EMR is different and even same-brand EMRs do not seamlessly connect." Why not? It seems almost shameless in an industry that has had a directive to achieve interoperability, at least since George W. Bush's executive order 13335 in April of 2004: "Incentives for the Use of Health Information Technology and Establishing the Position of the National Health Information Technology Coordinator".

That order was made over 13 years ago, the same period in which Facebook became the foremost social network in the world (with extreme interoperability), and about the same time that Amazon expanded into jewelry, shoes, and electronics, rapidly becoming the largest retailer in the world and making its founder, Jeff Bezos, nearly the richest man in the world. Why are EHRs not able to obtain the same level of interoperability?

The missing piece is an absence of standardization. Even within a single vendor, achieving interoperable standards is apparently harder than climbing Everest, and less survivable too. A number of organizations have attempted to create EHR standards, notably HL7. Their valiant efforts have been largely ignored. Again one must ask: why? For the most part, one must point a finger at the government's inability to establish and mandate simple interoperability standards. The efforts that have been made have been an abysmal failure.  Meaningful use? Seriously! Many of us say: meaningless use. It is not a standard, it is a hand-tying imposition on progress. There would be no Facebook, no Amazon, if such impediments were operative in the general internet commerce and social media space.

Think of it this way. GE, Samsung, Amana, Westinghouse, all make refrigerators and other appliances. They all seem to work fine on 120v current. Why? because that is the standard, and the companies know that is how they have to be built. What if (as with EHRs), companies were allowed to construct their innards any which way? We would not have cold food, or ice, dishwashers or air conditioning. None of the devices would be able to talk to the electrical grid. But now, EHR vendors can build what they want, can tell potential client hospitals (as well as the VA and the DOD) that they alone have it together and you better stick with them exclusively. Would we not rather choose an EHR based on how easy it worked? Knowing that it spoke the needed language as a baseline. The culprit in this is VA's and DOD's boss. In 2004, George Bush saw it, but the ability to stand up to the big companies that deliver health care tools is absent.

Until the government gets out of the business of trying to tell doctors how to practice and instead tells vendors they have to make EHRs that meet an interoperable standard, chaos will continue to reign.

Expansion of Nurse Practitioners and Physician Assistants Setting Stage For Single Payer Health Insurance

In the article “Are Nurse Practitioners and PA’s Taking Emergency Physician’s Jobs?,” the author gives an excellent summary of the evolution of the roles of “formally” ancillary providers.

While the dictionary defines ancillary as “subordinate, subsidiary, or assisting,” the article provides statistics on the rapid growth of ancillaries and the expected goal that these second-tier providers will practice in an increasingly autonomous fashion in the future. The majority of ancillaries support “team-based” physician-run practices but do not have decision-making capacity in the practice itself.

With modern technology, advanced training, and prospective financial savings, an ancillary-based model is clearly in the cards for Emergency Departments, urgent care facilities, pharmacy clinics, and other care-delivery locations in the future.  These will likely work with a physician supervisor overseeing a team of ancillary providers (“boots on the ground”). Supervision might occur simply by walking from room to room, over phone lines, or even via video (telemedicine).

With the ever-increasing costs of medical care and difficult access for many, using PA’s and Nurse Practitioners for direct patient contact makes a lot of sense. Will quality suffer? With the availability of direct supervision or advice through communication devices and telemedicine, decrease in quality should be minimal. Studies have shown that the general public is not only supportive of ancillary providers, but appreciate the concern and “bed-side” manner many are able to show, especially compared to negative experiences many have had with more hurried physicians.

In the recent governmental health care debacle over the ACA and “Trump Care”, there is little discussion of cost savings. Media reports show that legislators speak in terms of premium reductions and deductible amounts, and think that having an insurance card equals having medical care. How wrong!

Quite likely, the case for single payer health insurance will be on the table before long. And then, one might see a public safety net system that has premier options for those able to pay out of pocket. NP’s and PA’s will unquestioningly play a significant role in such a more socialized structure.

2-Hour Length of Stay ED, Would You Like Some Fries with That?

In the ED community there is a new marketing tool—30 minute or no-wait Emergency Department.





The implication is that a provider (physician, PA, or NP) will greet you a la WalMart and begin the relationship immediately. There are billboards, internet advertising, etc. that proclaim that your care will be improved because it will be faster.

On the upside, if properly conducted where the patient is fully evaluated there should be significant PRC or Press-Gainey score improvements.

I would prefer to see the metrics based on both speed, quality, and outcome.

Welcome to  the 2 hour LOS ED.

The provider will either discharge, admit, or carefully discuss with the patient and family the “battle plan” for disposition at the 2 hour mark.

1. Discharge prior than 2 hours
2. Admit prior than 2 hours
3. Discussion with patient
   a. Outline the time frame
   b. Discuss need for more tests (i.e. CT abdomen)
   c. Waiting for consultant
   d. Providing more treatment to avoid admission (i.e. fluids, 2nd set of Troponin levels, etc)

This would be the “ED Value Plan” that encompasses speed, efficiency, communication, and quality. (9 out of 10 members in my family would choose this plan).

The Most Expensive Tool in Medicine: "THE CLICK"

In the article "Price transparency in electronic health records not linked to changes in physician ordering: The PRICE trial", a cost analysis was performed on giving feedback to the clinician on their test ordering. The study essentially found “that  electronic health record display of cost for laboratory studies was not linked to a change in clinician ordering habits.” This has been extrapolated to both radiological tests and medications.

In the past the “most expensive tool in medicine” was the pen but this has changed to the “click”. Today, one can order multiple tests, perform them hourly or daily, and prescribe endless medications, all in packages, and with just a click.

The goal and fantasy of the CPOE (Computerized Physician Order Entry) has been that it would lead to cost controls and critical thinking about diagnostic and treatment plans. That imagined goal would be protocol driven, evidence-based, and lead to financially sound actions.

But the devil is in the details. In healthcare IT, that devilish detail is in the implementation of the software design. As it stands, the burden of the various CPOE platforms which include pharmacy, lab, and radiology are so cumbersome that “Work-Arounds” are often taken to get the busy work out of the way. Unfortunately, the devil is winning.

In the past our blogs have suggested a need for an evidence-based national interchangeable CPOE platform that everyone learns and understands. The industrial world knows this by the term “standardization.“  But in the space of technological innovation, standardization is elusive. HL7 has made a valiant effort to standardize the use of electronic medical systems. But standardization has not happened. Why? Think of the credit card readers in supermarkets and stores. Do any work the same as the one down the street? How many times do even non-medical people scratch their heads and make mistakes when simply sliding a card instead of inserting the chip? Not to mention the frustration of the cashier toward the seemingly stupid customer who just cannot get it together.

Medicine should do better. Lives are at stake. Every provider, hospital, and vendor could adjust the content pertaining to the work environment and specialty.

CPOE with enhanced “Artificial Intelligence” could include:

1. Treatment protocols (especially for commonly encountered and high risk clinical presentations)
2. Pharmacy preferences (with one, instead of 18 clicks per Rx)
3. Work-up protocols (that cat an appropriate safety net for some presentations)
4. Financial data
5. Cost effectiveness data    
6. Elimination of boiler-plate, routine, tests
7. Rational for why a certain test is needed unless protocol driven or obvious
8. Feedback to the provider on cost per provider on 1. Diagnosis 2. Treatment compared to all users.
9. Easy or automatic access to up-to-date recommendations for the specific problem.

If all this happened the same way at hospital B as it does at hospital A, think of the overall benefit, efficiency, decreased error, and cost savings that would accrue toward healthcare overall. Familiarity, coupled with true interoperability, would lead to less clicks, less consternation, less mistakes, and even the possibility of more patient contact time.

Currently, practitioners are so overwhelmed with data input that it discernibly takes away from time needed to fully analyze important clinical decisions. As a result, costs go way up. Think though, how the tendency to prioritize getting paid, even if it is perhaps an unconscious tendency, could be replaced by the more important tendency to get “it right.” Costs could go significantly down if there were enough cognitive space to think thoroughly before ordering routine tests that in the end have minimal clinical benefit.

If there were a standardized national performance guide, a decrease in liability issues should naturally occur along with cost savings. Why? Non-essential tests are commonly ordered on the initial evaluation. Sometimes. And when they are not ordered, a malpractice suit can occur because physicians are held to the retrospective analysis of what might have been done when bad-luck cases arise, as they inevitably do.

(See Peter Rosen vs ACEP dispute).

Would it not be nice if the doc could say, “Well, I was just following the standard?”  Case closed. But, on its own, such standardization won’t happen.  Any more than the card readers in Walmart will work identically to the ones at Target.

Yet we in medicine have an obligation to make it happen. As an important first start, fix the CPOE and help providers intuitively and naturally change their behavior for everyone’s good. There are many articles on the cost of clicks in the business literature, sometimes they even work, and sometimes the lessons can even be transferred to medicine.