Law & Medicine

Question: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus 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: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus 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: Which of the following is incorrect?

A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.

B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.

C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.

D. An employment contract should cover matters concerning confidentiality and privacy.

E. Staff should use office computers only for work-related activities.

Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.

While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.

Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.

In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.

There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.

Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.

In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.

The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?

Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).

In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.

Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).

It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).

Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.

One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).

Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."

Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.

The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.

Dr. Tan is professor emeritus 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 psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a 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 psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a 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 psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.

The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.

Which of the following observations is correct?

A. Failure to diagnose is the most common basis for a medical malpractice claim.

B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.

C. The doctor may have been biased, because this was a patient with a psychiatric history.

D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.

E. All are correct.

Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.

It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.

Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.

Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.

In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.

Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.

In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.

Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.

Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.

The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.

One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.

Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).

Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.

One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).

Dr. Tan is emeritus professor of medicine and a 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: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

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: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

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: Which is the single best statement?

A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).

B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.

C. The U.S. Supreme Court has held there is no constitutional right to PAS.

D. All are correct.

E. Only 1 and 2 are correct.

Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).¹

Since that time, Washington² and most recently Vermont,³ have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.⁴

What does the U.S. Supreme Court have to say about PAS?

In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.⁵ However, it was in the 1997 landmark case of Vacco v. Quill⁶ that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.

On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.

On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg⁷, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.

In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.

However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.⁸

The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.

Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.⁹

The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.

Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."¹⁰

Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.

Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.

The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.¹¹

References

1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.

2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.

3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).

4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).

5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).

6. Vacco v. Quill, 117 S. Ct. 2293 (1997).

7. Washington v. Glucksberg, 521 U.S. 702 (1997).

8. See www.amednews.com/article/20120417/profession/304179996.

9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.

10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).

11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.

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: A 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a 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 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a 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 56-year-old gentleman was admitted for pneumonia. He had told the triage nurse on initial presentation that he was allergic to "quinolones." The medical resident misread the triage note because of poor handwriting and ordered levofloxacin. The patient developed an acute anaphylactic reaction and required a brief intubation. The attending physician then discovered the error and asked the treating resident to accompany him into the consultation room, where the patient’s wife was anxiously waiting.

Which of the following is incorrect?

A. It is natural for the attending physician to blame the resident for misreading the triage note or the triage nurse for sloppy handwriting.

B. The attending physician should view this error as a system problem rather than an individual problem.

C. The attending physician should be the one to speak to the family, preferably accompanied by hospital counsel.

D. Having the resident along is a good idea.

E. The disclosing doctor may use words such as, "I’m so sorry this happened; I feel terrible about this."

Answer: C. The term "medical error" denotes a preventable adverse event, which in turn can be defined as an injury caused by medical management rather than the underlying condition of the patient. Clinical error is more formally defined as "the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim," according to the Institute of Medicine’s 1999 report "To Err Is Human: Building a Safer Health System."

Studies published by Harvard researchers in 1991 indicate that 3.7% of hospitalized patients suffer significant iatrogenic injuries, typically from errors or negligence (N. Engl. J. Med. 1991;324:370-6). The Institute of Medicine report has brought the matter to public prominence. It places medical error as the cause of between 44,000 and 98,000 annual fatalities, which makes medical error the fourth most common cause of death.

An empathetic disclosure following a medical error includes explaining the nature of the error – while at the same time avoiding laying blame on individuals – and promising to keep the patient informed as the investigation gets underway. Honest mistakes should be disclosed in a timely and compassionate manner, because the best way to arouse suspicion and anger is to stonewall a patient’s inquiries.

Admission of errors is not necessarily the same as admitting or accepting fault. By using the words "I’m sorry" and "I feel terrible about this," the physician communicates his genuine caring. On the other hand, one should avoid words such as "I’m sorry we did this to him," or "I’m sorry we gave him the wrong treatment." (The appropriate apology: "I’m sorry this happened to your husband.")

The attending physician should act as the primary speaker. Including the medical resident in the disclosure interview shows the openness of the team to accept responsibility by not protecting one of its own, allows the resident to hear precisely what the patient and family hear so that the information being given by the team is consistent, and provides an excellent teaching opportunity for the physician-in-training.

An attorney should not be present, because it may send a message that you anticipate a lawsuit. And such presence may shift the interaction away from a trusting, benevolent physician-patient relationship toward an adversarial one. In many hospitals, it is the risk manager or patient advocate who meets with the patient and family. As well-trained and sensitive as these individuals may be, the attending physician remains the one in the best position to disclose the error – assuming he or she has the right attitude and training for the task.

Even if the physician should eventually take responsibility for the mistake, this does not necessarily translate into a hopeless malpractice case.

For one thing, a lawsuit is less likely to be filed if the patient and family sense compassion and humanity. For another, the plaintiff is still required to produce expert testimony to prove that the conduct fell below the standard of care. Nor does an acknowledgment of a mistake necessarily rise to the level of "negligence" in the legal sense of the word. In a recent case of legal malpractice, for example, the court rejected the plaintiff’s assertion that because the defendant admitted his mistake, it amounted to malpractice as a matter of law (Kovacs v. Pritchard, Santa Clara Cty. Sup. Ct. No. CV791479, April 8, 2004).

The forthright approach is at odds with traditional legal advice to say and admit nothing. However, recent studies are beginning to recognize that honesty is the best policy.

A humanistic risk management policy has been operational at a Veterans Affairs Medical Center since 1987. The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries (Ann. Int. Med. 1999;131:963-7).

In an accompanying editorial, this anecdote was attributed to an attorney:

"In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel" (Ann. Int. Med. 1999; 131:970-2).

"Disclosure and offer" programs are fully implemented at only a few institutions, the best known being the University of Michigan Health System and some of Harvard’s affiliated medical institutions. However, many states now require some form of mandatory reporting for medical errors, and have enacted so-called apology laws that bar provider apologies from discovery and being admitted into evidence. These laws vary from state to state and are subject to judicial interpretation.

For example, the Ohio Supreme Court recently ruled that a surgeon’s comments and alleged admission of guilt ("I take full responsibility for this" regarding accidentally sectioning the common bile duct) were properly shielded from discovery by the state’s apology statute, even though the incident took place before the law went into effect (Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507).

It would be naïve to suggest that an honest disclosure will always prevent a lawsuit. In some cases, it may even prompt the filing of a claim, this being influenced by many other factors, such as provider-patient relationship, prevailing advertising by plaintiff attorneys, suggestion by a professional to seek legal advice, not having questions satisfactorily answered, and financial reasons (Ann. Int. Med. 1994;120:792-8).

A recent study of health plan members’ views revealed that patients will probably respond more favorably to physicians who fully disclose than those who are less forthright. But the specifics of the case and the severity of the outcome also affect patients’ responses, and "in some circumstances, the desire to seek legal advice may not diminish despite full disclosure" (Ann. Int. Med. 2004;140:409-18).

Another study has suggested that programs that include compensation offers may elicit complex and unpredictable patient responses, especially if the compensation is a large one (Health Aff. 2012;31:2681-9).

In short, the jury is out as to whether disclosure of medical errors affects the likelihood of malpractice litigation. Still, disclosure is preferable to silence or a cover-up. As the Code of Medical Ethics of the American Medical Association has rightly stated, it is the ethical thing to do.

Dr. Tan is emeritus professor of medicine and a 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].