S.Y. Tan, MD, JD

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A diabetic driver (DD) strikes a pedestrian after losing control of his vehicle from insulin-induced hypoglycemia. Both the DD and the pedestrian were seriously injured. The DD was recently diagnosed, and his physician had started him on insulin, but did not warn of hypoglycemia. In addition, the DD suffers from coronary heart disease but was unaware this potentially can cause serious arrhythmias. Which of the following statements is best?

A. The DD can sue his doctor for failure to disclose the risk of insulin therapy.

B. The pedestrian can sue the DD’s doctor for failing to warn of hypoglycemia.

C. If the accident resulted from a cardiac arrhythmia rather than hypoglycemia, then the doctor will not be liable.

D. Statements A and B are correct.

E. Statements A, B, and C are correct.

Answer: E. A doctor is liable for negligent care only to his or her own patient. This duty of care grows out of the doctor-patient relationship, and is normally owed to the patient and no one else. However, in very limited circumstances, the duty may be extended to other individuals, so-called third parties, who may be family members or even total strangers.

Injured nonpatient third parties have successfully sued doctors for failing to warn their patients that certain medications can adversely affect their driving ability. There also may be liability for failing to warn about medical conditions, e.g., syncope, that can impact driving.

Thus, in the above hypothetical, statements A, B, and C are all correct choices.

Doctors are increasingly being sued when their patients injure others in auto accidents.

In McKenzie v. Hawaii Permanente Medical Group (47 P.3d 1209 [Haw. 2002]), a car suddenly veered across five lanes of traffic, striking an 11-year-old girl and crushing her against a cement planter. The driver alleged that the prescription medication Prazosin caused him to lose control of the car, and that the treating physician was negligent, first, in prescribing an inappropriate type and dose of medication, and second, in failing to warn of potential side effects that could affect driving ability.

The Hawaii Supreme Court emphasized that the risk of tort liability to an individual physician already discourages negligent prescribing. Therefore, a physician does not have a duty to third parties where the alleged negligence involves prescribing decisions – i.e., whether to prescribe medication at all, which medication to prescribe, and what dosage to use.

On the other hand, physicians have a duty to their patients to warn of potential adverse effects, and this responsibility should therefore extend to third parties. Thus, liability would attach to injuries of innocent third parties as a result of failing to warn of a medication’s effects on driving – unless a reasonable person could be expected to be aware of this risk without the warning.

Other court decisions are in support. The New Mexico Supreme Court ruled that a physician owes a duty to third parties injured by patients who had been injected with medications, such as narcotics, that are known to affect judgment and driving ability (Wilschinsky v. Medina, 108 N.M. 511 [1989]). However, that court later declined to extend a physician’s duty to nonpatients for prescription-involved situations, after considering the potential impact on malpractice litigation if a physician’s duty were to extend to the general public (Lester v. Hall, 126 N.M. 405 [1998]).

In addition, a Massachusetts superior court judge has ruled that a "special relationship" is deemed to exist between a doctor and an injured third party for public policy reasons. Foreseeability is one important factor in construing the existence of such a "special relationship." This would then translate into a legal duty of care, notwithstanding absence of the traditional doctor-patient relationship.

In that case (Arsenault v McConarty, 21 Mass. L. Rptr. 500 [2006]), a family practitioner had failed to warn his diabetic patient of the risk of diabetic drugs when operating a vehicle. Just 45 minutes after the patient’s discharge from the hospital, he developed hypoglycemia, losing consciousness and injuring a motorcyclist – who then sued the doctor.

A doctor also may be liable to third parties for failing to warn the patient of driving risks related to some underlying medical condition.

In Myers v. Quesenberry (193 Cal. Rptr. 733 [1983]), a California court held that the plaintiff, a third-party accident victim, had a cause of action against two doctors for negligently failing to warn their patient against driving in an uncontrolled diabetic condition that was complicated by a missed abortion. In Freese v. Lemmon (210 N.W.2d 576 [Iowa 1973]), the Iowa Supreme Court held that a physician must warn a patient with newly diagnosed seizure disorder about the risks of driving. In that case, a patient with history of a single seizure injured a woman when he suffered a second seizure while driving. A Massachusetts court has likewise ruled that a treating neurosurgeon whose patient with a brain tumor struck a plaintiff should be named a codefendant.

Not all courts have decided in this manner. In a recent departure, the Connecticut Supreme Court ruled in Jarmie v. Troncale (SC 18358 [Sept. 17, 2012]) that doctors are immune from third-party traffic accident lawsuits, as such litigation would detract from what’s best for the patient ("a physician’s desire to avoid lawsuits may result in far more restrictive advice than necessary for the patient’s well-being"). The defendant-gastroenterologist, Dr. Troncale, was treating a patient with hepatic encephalopathy and had not warned of the associated risk of driving.

Finally, there is the issue of the at-risk patient who insists on driving against medical advice. The doctor should spare no effort in trying to persuade such a patient to stop, even to the extent of notifying the motor licensing bureau.

According to the AMA Code of Medical Ethics (2.24 (3), 2010-2011 ed.), "Physicians should use their best judgment when determining when to report impairments that could limit a patient’s ability to drive safely. In situations where clear evidence of substantial driving impairment implies a strong threat to patient and public safety, and where the physician’s advice to discontinue driving privileges is ignored, it is desirable and ethical to notify the department of motor vehicles."

Dr. Tan is emeritus professor of medicine at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A three-person hospitalist team contracts with a local hospital to provide in-house coverage for all medical admissions. Dr. A, who admitted a febrile female patient 3 days earlier, failed to check her urine culture and sensitivity. Dr. B was on duty the night the patient developed septic shock. He promptly transferred her to the ICU, drew blood cultures, and started her on a third-generation cephalosporin. He failed to check on the sensitivity results for the next 2 days, and did not prioritize this item when signing off to Dr. C, who then assumed care for the patient. The patient died shortly thereafter, and her blood cultures grew out MRSA, resistant to the cephalosporin. In a lawsuit alleging negligence, which of the following is best?

A. Dr. A is liable, as his failure to check on the urine specimen in the first place was the proximate cause of the patient’s eventual demise.

B. Dr. B is liable, as he should have checked on or alerted Dr. C to the blood cultures.

C. Dr. C has an independent duty to review the lab studies. But for this failure, the patient would not have succumbed to the infection, so Dr. C is liable.

D. All three hospitalists are jointly and severally liable.

E. If an autopsy showed death resulted from an unsuspected myocardial infarct, then there will be no liability.

Answer: D. Liability will likely attach to all three hospitalists, as the conduct of each arguably fell below the standard of care. Choice E is incorrect as there may still be liability for missing an MI, and the plaintiff will likely argue that the inadequately treated infection precipitated or aggravated the cardiac complication. This hypothetical is meant to underscore the critical need for various caregivers in a hospital setting to fully communicate.

The hospitalist movement began about 2 decades ago amidst rumblings that it would represent a "dangerous" trend, with disruption of the doctor-patient relationship when the patient needs his/her regular doctor most. Notwithstanding these early reservations, the specialty has now become widely accepted, and its membership has tripled in the last decade to reach almost 35,000. Hospitalists increase the work efficiency of primary care physicians, who can now devote all their attention to the office or clinic, free of the time-consuming interruptions of attending to an acutely ill patient in the hospital.

Hospitalists also have been shown to reduce the hospital length of stay by about half a day, although there was no significant cost savings (N. Engl. J. Med. 2007;357:2589-2600).

Large-scale studies on the quality of hospitalist care are still pending, but smaller studies demonstrate that it has improved patient outcomes.

The two most important challenges facing hospitalists are to form a meaningful doctor-patient relationship in an acute situation and to ensure good communication. The first challenge makes it easier for a patient to sue (a "stranger" doctor), and the second creates liability traps as medical errors tend to occur when communication among providers and others are suboptimal.

The scope of a hospitalist’s duty should therefore be carefully spelled out in advance, and include where each physician’s duty begins and ends. There must be no doubt from the outset as to who is responsible for what. The coordination and communication between the emergency department and the hospitalist is a key area. A hospitalist is generally responsible for directly supervising and coordinating a patient’s care, and may not be expected to function at the level of another specialist. For example, in Domby v Moritz, D050165 (Cal 2008), a hospitalist was not found liable in the death of a cardiac patient, the court holding that he had a narrower scope of duty than the standard of care expected of the cardiologist who was comanaging the case. However, depending on the facts, not all such cases will necessarily be decided in the hospitalist’s favor.

The overarching risk management strategy is clear and effective communication at all levels, especially during the handoff from one caregiver to another. A missed or delayed diagnosis remains the main malpractice allegation, but handoff communication problems are among the most common root causes of hospital errors, and can extend beyond hospital care.

In one study, more than a third of follow-up evaluations were not completed because the discharge summary was incomplete or unavailable. In another study of 696 discharged patients from two academic centers, only 25% of the discharge summaries mentioned any pending test results, and a mere 13% listed the nature of those tests (J. Gen. Intern. Med. 2009;24:1002-6).

The duty of the hospitalist does not end when a patient leaves the hospital, and all patients should be specifically advised regarding the importance of follow-up appointments with their primary care physicians. Inadequate communication with the primary care doctor regarding the patient’s hospital course and follow-up plans can create liability for the hospitalist should something go wrong post discharge.

Malpractice carriers and others have developed various mnemonics to assist the hospitalist. A handy one is the five P’s for Patient, Plan, Purpose, Problems, and Precautions. Another more elaborate mnemonic is PASS the BATON, which stands for Patient (identification), Assessment (e.g., complaints, diagnosis), Situation (e.g., response to treatment, code status), Safety (e.g., lab results, falls), Background (e.g., relevant past history), Actions (what’s done and what’s needed), Timing (urgency and priority), Ownership (who is responsible) and Next (plans to come).

This column, Law & Medicine, appears regularly in Internal Medicine News. Dr. Tan is emeritus professor at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Six days after he bruised his chest and fractured his ankle as a result of an auto accident, the victim, who had a history of diabetes and coronary artery disease, died from an acute myocardial infarction. The medical expert testified that the accident caused him to develop the AMI because of preexisting risk factors, although an otherwise normal person would not. Which of the following statements is best?

A. A tortfeasor is never liable for damages that are too remote and not foreseeable.

B. The accident did not proximately cause the infarct, so the wrongdoer is liable only for the chest wall and ankle injuries.

C. Under the "eggshell skull" rule, the tortfeasor takes his victim as he finds him, and the defendant here is therefore liable for all injuries, including the AMI.

D. The defendant can legitimately claim no prior knowledge of victim’s preexisting conditions, and therefore cannot foresee an AMI complication.

E. A normal person would not have sustained an AMI under the circumstances, and the law demands only what is reasonable.

Answer: C. In order to be compensated, a plaintiff generally has to satisfy the court that the damage was not too remote. Reasonable foreseeability of the type of harm – not necessarily its extent – is the key inquiry when the remoteness of damage is assessed, and public policy considerations centering on fairness may also come into play.

It has been stated that "starting with the proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it, but otherwise not" (Roe v. Minister of Health [1954] 2 Q.B. 66 at 85).

This hypothetical case, adapted from an actual Iowa supreme court decision (Benn v. Thomas 512 N.W.2d 537 [Iowa 1994]), features the legal maxim called the "eggshell skull" rule. This principle of law carves out an exception to the need to inquire into whether any damage is too remote. The "eggshell skull" rule famously stipulates that the tortfeasor takes his victim as he finds him, which means in practical terms that the defendant remains liable for all injuries that he caused in a susceptible plaintiff who had preexisting vulnerabilities.

The doctrine originated in the 1901 English case of Dulieu v. White (2 K.B. 669 [1901]), in which the thin-skulled plaintiff died from a minor accident, whereas a person with a skull of normal thickness would have suffered only a bump on the head. The defendant was found liable for the patient’s death.

In an earlier landmark case, (Vosburg v. Putney, 50 N.W. 403 [Wisc. 1891]), a schoolboy developed an invasive infection of his leg after he was kicked by a fellow classmate. Unbeknown to the perpetrator, the victim had recently been injured on that same leg; the injury was aggravated by the tortious act and the leg had to be amputated. The court held that the tortfeasor was liable for the entire damage, notwithstanding the fact that he was unaware of the victim’s prior leg condition or that he had not intended that degree of harm.

In Smith v. Leech Brain & Co Ltd. ([1962] 2 Q.B. 405), an employee developed lip cancer and eventually died after a piece of molten metal caused a burn to the lip. The affected area was apparently in a precancerous condition. The court held that "the test is not whether these [defendants] could reasonably have foreseen that a burn would cause cancer and that [Mr. Smith] would die. The question is whether these [defendants] could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of the damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim."

In Stoleson v. United States (708 F.2d 1217 [7th Cir. 1983]), the plaintiff suffered a heart attack that was attributed to nitroglycerin exposure at the munitions plant where she worked. As the employer, the federal government was found liable for failing to protect its workers from such exposure. However, the claimant subsequently developed symptoms that included chest pain, dizziness, shortness of breath, coughing, and vomiting, together with a massive weight gain of more than 100 pounds. The symptoms were diagnosed as hypochondriasis, and became manifest only several years after the original incident, long after she had left the workplace. The court held that if her psychosomatic condition preexisted the heart attack, then the "eggshell skull" rule was applicable, but the plaintiff lost the claim as she had failed to prove causation (that is, that nitroglycerin exposure caused her physical symptoms so many years later).

Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. Take as an example a diabetic with peripheral neuropathy and poor circulation. A negligently treated minor foot ulcer may cause the patient to end up with an amputation, whereas such a serious outcome would be unlikely in a nondiabetic. Under the "eggshell skull" rule, the negligent doctor will be liable for all injuries, including the amputation, although not for the preexisting diabetic condition itself.

The "eggshell skull" rule should be distinguished from the "crumbling skull" rule. The latter basically stipulates that compensation must discount the damage that can reasonably be expected to flow normally from any preexisting conditions even in the absence of tortious aggravation.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: Regarding end-of-life issues, which of the following statements is most accurate?

A. All persons may forgo life-sustaining treatment including artificial nutrition and hydration.

B. A doctor may administer increasing doses of morphine to treat pain, even if this may cause respiratory depression and hasten death.

C. By exercising the right of autonomy, a patient may legally request physician-assisted suicide.

D. If a patient lacks medical decision–making capacity and there is no next of kin to give consent, then two doctors can together provide treatment in the patient’s best interest.

E. Just as there is a fundamental right to stop treatment, there also is a fundamental right to insist on continuing treatment.

Answer: B. Only an adult of "sound mind" can make decisions to accept or reject medical treatment, but this does not extend to physician-assisted suicide, which is illegal in all states except Oregon and Washington. Choices A & C are therefore incorrect. Where a patient lacks mental capacity and there is no surrogate decision-maker available, the doctor is obligated, except in an emergency situation, to apply to the court for a guardian ad litem. Simply having two (or more) physicians agree to a course of treatment is inappropriate. The best choice is B; it speaks to the ethical principle of "double effect," in which the intent is to confer a benefit such as pain relief, notwithstanding knowledge of an adverse consequence including hastening the patient’s demise. E is incorrect as there is no right to futile treatment.

In the 1976 landmark case of Karen Ann Quinlan, the New Jersey court underscored the fundamental right of a young woman in a persistent vegetative state to forgo life-sustaining support with a mechanical ventilator. Furthermore, the court allowed the right to be exercised by her parents on her behalf, and recommended the formation of hospital ethics committees to decide such matters.

This right was extended to cover artificial feeding by a unanimous U.S. Supreme Court decision in Cruzan v. Director, Missouri Department of Health. There, the court reasoned that whether or not the techniques used to pass food and water into the patient’s alimentary tract were termed "medical treatment," it was clear they all involved some degree of intrusion and restraint. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. The Court held that the liberty guaranteed by the Due Process Clause must protect an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

However, where a patient’s wishes are not clear and convincing, a court will be reluctant to order cessation of treatment. In a 6-0 decision, the California Supreme Court ruled in Wendland v. Wendland, that a patient’s tube feedings could not be discontinued under the circumstances of the case. Robert Wendland regained consciousness after 14 months in a coma but was left hemiparetic and incontinent and could not feed by mouth or dress, and bathe and communicate consistently. His wife Rose refused to authorize reinsertion of a dislodged feeding tube, believing that Robert would not have wanted it replaced. The decision was supported by his daughter and brother, the hospital’s ethics committee, county ombudsman, and a court-appointed counsel. But the patient’s mother, Florence, went to court to block the action. Robert did not have an advance directive but had made statements to the effect he would not want to live in a vegetative state.

The court determined that Robert’s statements were not clear and convincing because they did not address his current condition, were not sufficiently specific, and were not necessarily intended to direct his medical care. Further, the patient’s spouse had failed to provide sufficient evidence that her decision was in her husband’s best interests.

A contentious end-of-life issue is that of medical futility, which basically denotes treatment that cannot confer an overall benefit on the whole person even if it can restore some physiologic variable. The stickiest scenario is where a family member insists on futile treatment against the advice of the attending doctors. In earlier cases, the courts had avoided addressing this issue directly, but in a 1995 trial, Gilgunn v. Massachusetts General Hospital, a jury returned a resounding verdict for the defendant hospital that directed the unilateral withholding of futile treatment against the wishes of the patient’s daughter.

Finally, there is the issue of physician-assisted suicide and active euthanasia that achieved public notoriety with the criminal conviction of Dr. Jack Kevorkian. In Vacco v. Quill, the U.S. Supreme Court reasoned that the important, logical, and rational distinction between assisting suicide and withdrawing life-sustaining treatment comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.

Furthermore, a physician who withdraws, or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and to cease doing useless and futile or degrading things to the patient when the patient no longer stands to benefit from them. The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, to ease his patient’s pain only.

A doctor who assists a suicide, however, "must, necessarily, and indubitably, intend primarily that the patient be made dead." Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. In holding that there is no fundamental right to physician-assisted suicide, the U.S. Supreme Court nonetheless left open to the individual states the continuing debate over this contentious matter. Legalizing physician-assisted suicide and/or euthanasia is opposed by most professional organizations including the American Medical Association.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author a

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 51-year-old diabetic woman had lapsed into septic shock and coma when the doctors sought a court order for urgent lifesaving bilateral below-knee amputation. The patient had earlier, while competent, refused such an intervention, but the situation was not as acute at that time. The only available family member was her minor 16-year-old son and there was insufficient time to appoint a guardian ad litem. The court found that the patient’s earlier statements regarding her preference to die rather than losing her legs were made without benefit of medical advice of impending death. Which of the following is best?

A. A competent person is entitled to withhold consent, and doctors are obliged to respect that decision unless in their opinion the refusal of treatment is likely to cause death.

B. Under the circumstances of this case, the court may grant or withhold consent using the "best interests" test.

C. The better approach is to secure consent from the 16-year-old son.

D. A court order is unnecessary in this case because it is a true emergency, which allows doctors to perform lifesaving surgery without consent.

E. All are correct.

Answer: B. The above hypothetical is adapted from an actual case in which the court used the best interests test in granting permission to proceed with the operation.

A patient’s decision to accept or forgo medical treatment is accorded legal recognition on the basis of patient autonomy, so long as capacity to consent is not at issue. As Judge Cardozo famously stated in the 1914 case, Schloendorff v. Society of New York Hospital, "Every person of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages." The case featured a woman whose fibroid tumor was removed while she was under anesthesia although she had specifically refused the operation.

A person is not to be considered incapacitated in decision making merely because he makes an unwise choice, and a well-documented refusal cannot be vitiated by a spouse or next of kin, nor brushed aside in the name of an emergency. Where the wishes of the patient are unknown, courts have resorted to the objective "best interests" test. If it can be ascertained what the patient might have wanted based on knowledge of his/her overall life choices, then such a "substituted judgment" (a subjective test) is used to guide the judicial decision.

Patient refusal to undergo a surgically invasive procedure, such as amputation or pacemaker placement, even if considered ill advised by the treatment team, is regularly given due judicial deference. Courts have upheld the refusal of a patient, in one case a schizophrenic, to undergo an amputation for a gangrenous leg. Likewise, it sided with a mother’s refusal to undergo a cesarean section despite imperiling her viable unborn. However, where there are compelling countervailing factors such as the health interests of a third party, courts have compelled blood transfusions, forced C-sections, and even famously intervened to separate conjoined twins. In the latter instance, an English court permitted the heroic separation of conjoined twins Mary and Jodie despite the inevitability that Mary, the weaker twin, would die during the operation. The court order was issued over the objections of the parents who were devout Catholics.

Then there is the occasional hospitalized patient who wishes to sign out against medical advice, despite being repeatedly warned it is an untimely discharge. However, this unwise decision is usually within the patient’s legal rights, and the attending may be left with the tasks of ensuring that the patient understands the serious consequences, providing temporary medications to the extent possible, and emphasizing immediate medical follow-up in the clinic or with the primary physician. Appealing to family members can sometimes convince the patient to stay, so this is a worthwhile effort.

Another example of patients deciding to forgo beneficial treatment concerns blood transfusion in Jehovah’s Witnesses based on religious grounds. Doctors generally acquiesce to a patient’s choice, but some complain that by refusing blood, Jehovah’s Witnesses render their work riskier and more difficult ("having to operate with one hand tied behind their backs"). As a result, there is a temptation to resort to subterfuge, such as transfusing without informing the patient, or waiting until the patient becomes comatose and is no longer able to refuse. However, such deceptive practices are unethical and inappropriate because they override patient autonomy and disrespect a patient’s sincerely held religious belief.

However, one should make sure that the patient has indeed chosen to forgo blood, and wherever possible, physicians should speak privately to a Jehovah’s Witness to ascertain his or her true wishes. Others have employed the approach of asking the patient to be guided by a court’s decision. In general, courts have resisted forcing transfusions in competent adults, holding that Jehovah’s Witnesses’ religious right to refuse blood is more compelling than the state’s interest in preserving life. On the other hand, some courts have ordered blood transfusions in children despite parental objections, or in cases in which there is a third-party at issue, such as in an advanced pregnancy with a viable fetus. It is worth noting that surgeons are increasingly adept at using relatively bloodless surgical techniques to bypass the need for transfusions. As a result, morbidity and mortality outcomes may not dramatically worsen, even for major operations such as open-heart surgery.

The right to refuse life-sustaining treatment, including artificial hydration and nutrition, will be discussed in a subsequent article.

Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics, both in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).

Question: The on-call resuscitation team, consisting of a supervising medical resident and an intern, was unsuccessful in its attempt to intubate the patient. The senior resident had performed only one prior intubation, and the intern none at all. No anesthesiologist or nurse anesthetist was in-house. It was subsequently discovered that moments before the arrest, the patient had erroneously received an antibiotic to which he was known to be allergic. In a lawsuit for wrongful death, which of the following statements is best?

A. Contrary to popular belief, lawsuits against resident physicians (house staff) are rare, with fewer than 100 cases reported to the National Practitioner Data Bank.

B. There is definite liability here, with the iatrogenic incident being caused by a medical error.

C. If a lawsuit is brought after completion of training, liability then attaches to either the resident or his or her new insurance carrier.

D. The hospital is liable, as it should always have someone in-house who is skilled in this lifesaving procedure.

E. Inexperience does not necessarily mean the applicable standard of care is lowered to that of a medical trainee.

Answer: E. Choice A is incorrect. Lawsuits against house staff are not rare, and resident physicians are regularly joined as codefendants with their supervisors who are typically medical school faculty or community practitioners admitting patients to “team care.” By the end of 2006, the National Practitioner Data Bank had catalogued 1,832 residents as having had at least one adverse malpractice claim (National Practitioner Data Bank: 2006 Annual Report. Available at www.npdb-hipdb.com. Accessed May 17, 2010). Choice B is incorrect because the legal cause is unproven, and the facts are insufficient to impute the cardiac arrest to medical error.

On the issue of insurance coverage, the Accreditation Council for Graduate Medical Education requires graduate medical education programs to insure their trainees for “claims reported or filed after the completion of graduate medical education if the alleged acts or omissions of the residents are within the scope of the education program.” Thus, residents are covered for acts or omissions during their training period, irrespective of when the claim is brought (so-called “tail coverage”). However, should a resident moonlight or be employed outside of the training program, the resident should either purchase separate professional liability insurance or have the employer provide such insurance, including tail coverage (AJR Am. J. Roentgenol. 1998;171:565-7).

Choice D is also incorrect. Having an in-house anesthesiologist or nurse-anesthetist may represent good hospital policy, but it is not a community or legal standard at this time.

The best choice is E. Although still acquiring the skills toward certification, trainees remain individually responsible for their actions. But should the law demand the same standard of care as it would a fully qualified attending physician? The courts are split on this question (JAMA 2004;292:1051-6). Some have favored a dual standard of conduct, with trainees being held to a lower standard of care. This was articulated in Rush v. Akron General Hospital, which involved a patient who had fallen through a glass door. The patient suffered several lacerations to his shoulder, which an intern treated. However, when two remaining pieces of glass were later discovered in the area of injury, the patient sued the intern for negligence. The court dismissed the claim, finding that the intern had practiced with the skill and care of his peers with similar training: “It would be unreasonable to exact from an intern, doing emergency work in a hospital, that high degree of skill which is impliedly possessed by a physician and surgeon in the general practice of his profession, with an extensive and constant practice in hospitals and the community” (Rush v. Akron General Hospital, 171 N.E.2d 378 [Ohio Ct. App. 1987]).

However, not all courts have embraced the dual standard of review. In a recent case out of New Jersey, the Superior Court held that licensed residents should be judged by a standard applicable to a general practitioner, as any reduction in the standard of care would set a “problematic precedent” (Clark v. University Hospital, 914 A.2d 838 [N.J. Super. 2006]). In this case, the residents allegedly failed to reinsert a nasogastric tube, which caused the patient to aspirate.

Should the applicable standard for a resident physician be even higher? In Pratt v. Stein, a second-year resident was judged by a specialist standard after he had allegedly administered a toxic dose of neomycin to a postoperative patient, which resulted in deafness. Although the lower court had ruled that the resident should be held to the standard of an “ordinary physician,” the Pennsylvania appellate court disagreed, reasoning that “a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. In our estimation, this is a sound conclusion. A resident is already a physician who has chosen to specialize, and thus possesses a higher degree of knowledge and skill in the chosen specialty than does the nonspecialist” (Pratt v. Stein, 444 A.2d 674 [Pa. Super. 1980]).

However, a subsequent decision from the same jurisdiction suggests a retreat from this unrealistic standard. An orthopedic resident allegedly applied a cast with insufficient padding to the broken wrist of a patient. The plaintiff claimed this led to soft tissue infection with Staphylococcus aureus, with complicating septicemia, staphylococcal endocarditis, and eventual death. The court held that the resident’s standard of care should be “higher than that for general practitioners but less than that for fully trained orthopedic specialists. ... To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible” (Jistarri v. Nappi, 549 A.2d 210 [Pa. Super. 1988]).

Dr. Tan writes the “Law & Medicine” column, which regularly appears in Internal Medicine News, an Elsevier publication. He is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006).