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‘Captain of the ship’ doctrine
Question: The “Captain of the Ship” doctrine:
A. Is a legal principle used mostly in maritime law.
B. Is applicable only to surgeons in the operating room.
C. Is good law in all jurisdictions.
D. May be used by plaintiffs in emergency department triage litigation.
E. Originated when hospitals lost their charitable immunity.
Answer: D. Historically, the Captain of the Ship doctrine imputes liability to the surgeon who has the authority and right to control the actions of his assistants in the operating room.
Pennsylvania famously saw the use of the phrase in a 1949 case: “In the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation … he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board.”1
Public hospitals in the 1940s were immune from liability because they were charitable organizations, so the Captain of the Ship doctrine emerged as a means for injured patients to recover damages against the surgeon instead. Courts have used various legal theories to justify this doctrine, which is basically grounded in vicarious liability, e.g., master-servant relationship (respondeat superior), borrowed servant, a nondelegable duty, or more broadly, principles of agency.
Use of the doctrine to shift liability to the surgeon in the operating room is well exemplified in litigation over retained sponges, left-behind instruments, burns in the operating room, administration of the wrong blood type, and allergic reaction to penicillin. Actual control of the surgeon’s assistants is not essential, but the right to merely supervise is insufficient. What is dispositive is the right and authority to determine an assistant’s actions.
However, what constitutes an “operating room” has been in dispute. It may simply mean a circumscribed and controlled area for medical procedures and/or treatment. Thus, the term has been extended to a room where only local anesthesia was used for esophageal dilation. Reasoning by analogy, the modern-day heart catheterization lab or interventional radiology suite would arguably count as “operating rooms” where the procedurist-doctor, usually a nonsurgeon, may be deemed to function as the captain of the ship.
Another place where a nonsurgeon may be involved is the hospital ED. It has been stated that emergency physicians have been held liable for adverse outcomes resulting from the patients under triage, based on the Captain of the Ship doctrine.2 Once a patient arrives in the ED, a legal duty to provide care arises, even if the physician has yet to see the patient. The federal Emergency Medical Treatment and Labor Act, which regulates much of what happens in the nation’s emergency departments, covers “any individual ... [who] comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition.”
Still, the doctrine is less likely to be invoked in a more spread-out area such as a general medical ward, where a physician’s control cannot be reasonably expected.
For example, courts have held that ward nurses giving injections into the buttock causing permanent neuropathy to a patient’s leg were not the agents of the prescribing physician, but just of the hospital employing them. The doctrine also was rejected in Collins v. Hand by the Pennsylvania Supreme Court, which reversed a judgment against a psychiatrist defendant.3 In the Collins case, notwithstanding the fact that the psychiatrist, Dr. Hand, had personally arranged for the patient’s transfer to another hospital and wrote orders for electroconvulsive therapy (which was complicated by fractures), Dr. Hand did not choose the doctor who was to administer the therapy, nor did he hire, compensate, or control any of the team members.
In the 1960s, hospitals began losing their charitable immunity status and assumed direct as well as vicarious liability for injuries to patients from the negligent acts of their employees, such as nurses. The key policy reason for having the Captain of the Ship doctrine then no longer existed. Besides, operating rooms became increasingly complex, and the senior surgeon was thought to be incapable of being in charge of all activities there.
Wisconsin is typical: A retained sponge following a laparoscopic cholecystectomy led to complications, and the patient sued the hospital and surgeon, claiming each was responsible for the nurses’ sponge-count error. The lower court had found that “as a matter of law [the surgeon] is in fact responsible and liable for the actions of the parties that were in the operating room with him and working under his supervision ... [the] doctor is the captain of the ship. That doctor is responsible for everything.”
Upon appeal, the Wisconsin Supreme Court reversed the decision of the lower court by rejecting the doctrine altogether, finding that it failed to reflect the emergence of hospitals as modern health care facilities.5
Still, the doctrine is by no means obsolete. In a Colorado case, the court wrote that, even if the nurse were an employee of the hospital and her negligence caused the death of plaintiff’s husband, the Captain of the Ship doctrine would preclude recovery against the hospital.6 It relied on a precedent-setting case that held that once the operating surgeon assumed control in the operating room, the surgeon is liable for the negligence of all persons working there.
Likewise, California has recently breathed new life into the doctrine.7 A case in 2006 involved a patient who underwent arterial bypass surgery in his right leg. A case in which a nurse’s counting error led to a retained sponge ended up with the patient losing his leg. The surgeon initially escaped liability by virtue of the court’s refusal to include Captain of the Ship instructions to the jury, which found the doctor not negligent. The state court of appeals reversed, however, concluding that it was reasonably probable that the jury might have reached a different result had it been so instructed.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949).
2. ED Legal Letter, Feb 1, 2018.
3. Collins v. Hand, 246 A.2d 398 (Pa 1968).
4. AORN J. 2001 Oct;74(4):525-8.
5. Lewis v. Physicians Insurance Company et al., 627 NW2d 484 (Wis 2001).
6. Krane v. St. Anthony Hospital Systems, 738 P.2d 75 (Co 1987).
7. Fields v. Yusuf, 144 Cal.App.4th 1381 (2006).
Question: The “Captain of the Ship” doctrine:
A. Is a legal principle used mostly in maritime law.
B. Is applicable only to surgeons in the operating room.
C. Is good law in all jurisdictions.
D. May be used by plaintiffs in emergency department triage litigation.
E. Originated when hospitals lost their charitable immunity.
Answer: D. Historically, the Captain of the Ship doctrine imputes liability to the surgeon who has the authority and right to control the actions of his assistants in the operating room.
Pennsylvania famously saw the use of the phrase in a 1949 case: “In the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation … he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board.”1
Public hospitals in the 1940s were immune from liability because they were charitable organizations, so the Captain of the Ship doctrine emerged as a means for injured patients to recover damages against the surgeon instead. Courts have used various legal theories to justify this doctrine, which is basically grounded in vicarious liability, e.g., master-servant relationship (respondeat superior), borrowed servant, a nondelegable duty, or more broadly, principles of agency.
Use of the doctrine to shift liability to the surgeon in the operating room is well exemplified in litigation over retained sponges, left-behind instruments, burns in the operating room, administration of the wrong blood type, and allergic reaction to penicillin. Actual control of the surgeon’s assistants is not essential, but the right to merely supervise is insufficient. What is dispositive is the right and authority to determine an assistant’s actions.
However, what constitutes an “operating room” has been in dispute. It may simply mean a circumscribed and controlled area for medical procedures and/or treatment. Thus, the term has been extended to a room where only local anesthesia was used for esophageal dilation. Reasoning by analogy, the modern-day heart catheterization lab or interventional radiology suite would arguably count as “operating rooms” where the procedurist-doctor, usually a nonsurgeon, may be deemed to function as the captain of the ship.
Another place where a nonsurgeon may be involved is the hospital ED. It has been stated that emergency physicians have been held liable for adverse outcomes resulting from the patients under triage, based on the Captain of the Ship doctrine.2 Once a patient arrives in the ED, a legal duty to provide care arises, even if the physician has yet to see the patient. The federal Emergency Medical Treatment and Labor Act, which regulates much of what happens in the nation’s emergency departments, covers “any individual ... [who] comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition.”
Still, the doctrine is less likely to be invoked in a more spread-out area such as a general medical ward, where a physician’s control cannot be reasonably expected.
For example, courts have held that ward nurses giving injections into the buttock causing permanent neuropathy to a patient’s leg were not the agents of the prescribing physician, but just of the hospital employing them. The doctrine also was rejected in Collins v. Hand by the Pennsylvania Supreme Court, which reversed a judgment against a psychiatrist defendant.3 In the Collins case, notwithstanding the fact that the psychiatrist, Dr. Hand, had personally arranged for the patient’s transfer to another hospital and wrote orders for electroconvulsive therapy (which was complicated by fractures), Dr. Hand did not choose the doctor who was to administer the therapy, nor did he hire, compensate, or control any of the team members.
In the 1960s, hospitals began losing their charitable immunity status and assumed direct as well as vicarious liability for injuries to patients from the negligent acts of their employees, such as nurses. The key policy reason for having the Captain of the Ship doctrine then no longer existed. Besides, operating rooms became increasingly complex, and the senior surgeon was thought to be incapable of being in charge of all activities there.
Wisconsin is typical: A retained sponge following a laparoscopic cholecystectomy led to complications, and the patient sued the hospital and surgeon, claiming each was responsible for the nurses’ sponge-count error. The lower court had found that “as a matter of law [the surgeon] is in fact responsible and liable for the actions of the parties that were in the operating room with him and working under his supervision ... [the] doctor is the captain of the ship. That doctor is responsible for everything.”
Upon appeal, the Wisconsin Supreme Court reversed the decision of the lower court by rejecting the doctrine altogether, finding that it failed to reflect the emergence of hospitals as modern health care facilities.5
Still, the doctrine is by no means obsolete. In a Colorado case, the court wrote that, even if the nurse were an employee of the hospital and her negligence caused the death of plaintiff’s husband, the Captain of the Ship doctrine would preclude recovery against the hospital.6 It relied on a precedent-setting case that held that once the operating surgeon assumed control in the operating room, the surgeon is liable for the negligence of all persons working there.
Likewise, California has recently breathed new life into the doctrine.7 A case in 2006 involved a patient who underwent arterial bypass surgery in his right leg. A case in which a nurse’s counting error led to a retained sponge ended up with the patient losing his leg. The surgeon initially escaped liability by virtue of the court’s refusal to include Captain of the Ship instructions to the jury, which found the doctor not negligent. The state court of appeals reversed, however, concluding that it was reasonably probable that the jury might have reached a different result had it been so instructed.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949).
2. ED Legal Letter, Feb 1, 2018.
3. Collins v. Hand, 246 A.2d 398 (Pa 1968).
4. AORN J. 2001 Oct;74(4):525-8.
5. Lewis v. Physicians Insurance Company et al., 627 NW2d 484 (Wis 2001).
6. Krane v. St. Anthony Hospital Systems, 738 P.2d 75 (Co 1987).
7. Fields v. Yusuf, 144 Cal.App.4th 1381 (2006).
Question: The “Captain of the Ship” doctrine:
A. Is a legal principle used mostly in maritime law.
B. Is applicable only to surgeons in the operating room.
C. Is good law in all jurisdictions.
D. May be used by plaintiffs in emergency department triage litigation.
E. Originated when hospitals lost their charitable immunity.
Answer: D. Historically, the Captain of the Ship doctrine imputes liability to the surgeon who has the authority and right to control the actions of his assistants in the operating room.
Pennsylvania famously saw the use of the phrase in a 1949 case: “In the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation … he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board.”1
Public hospitals in the 1940s were immune from liability because they were charitable organizations, so the Captain of the Ship doctrine emerged as a means for injured patients to recover damages against the surgeon instead. Courts have used various legal theories to justify this doctrine, which is basically grounded in vicarious liability, e.g., master-servant relationship (respondeat superior), borrowed servant, a nondelegable duty, or more broadly, principles of agency.
Use of the doctrine to shift liability to the surgeon in the operating room is well exemplified in litigation over retained sponges, left-behind instruments, burns in the operating room, administration of the wrong blood type, and allergic reaction to penicillin. Actual control of the surgeon’s assistants is not essential, but the right to merely supervise is insufficient. What is dispositive is the right and authority to determine an assistant’s actions.
However, what constitutes an “operating room” has been in dispute. It may simply mean a circumscribed and controlled area for medical procedures and/or treatment. Thus, the term has been extended to a room where only local anesthesia was used for esophageal dilation. Reasoning by analogy, the modern-day heart catheterization lab or interventional radiology suite would arguably count as “operating rooms” where the procedurist-doctor, usually a nonsurgeon, may be deemed to function as the captain of the ship.
Another place where a nonsurgeon may be involved is the hospital ED. It has been stated that emergency physicians have been held liable for adverse outcomes resulting from the patients under triage, based on the Captain of the Ship doctrine.2 Once a patient arrives in the ED, a legal duty to provide care arises, even if the physician has yet to see the patient. The federal Emergency Medical Treatment and Labor Act, which regulates much of what happens in the nation’s emergency departments, covers “any individual ... [who] comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition.”
Still, the doctrine is less likely to be invoked in a more spread-out area such as a general medical ward, where a physician’s control cannot be reasonably expected.
For example, courts have held that ward nurses giving injections into the buttock causing permanent neuropathy to a patient’s leg were not the agents of the prescribing physician, but just of the hospital employing them. The doctrine also was rejected in Collins v. Hand by the Pennsylvania Supreme Court, which reversed a judgment against a psychiatrist defendant.3 In the Collins case, notwithstanding the fact that the psychiatrist, Dr. Hand, had personally arranged for the patient’s transfer to another hospital and wrote orders for electroconvulsive therapy (which was complicated by fractures), Dr. Hand did not choose the doctor who was to administer the therapy, nor did he hire, compensate, or control any of the team members.
In the 1960s, hospitals began losing their charitable immunity status and assumed direct as well as vicarious liability for injuries to patients from the negligent acts of their employees, such as nurses. The key policy reason for having the Captain of the Ship doctrine then no longer existed. Besides, operating rooms became increasingly complex, and the senior surgeon was thought to be incapable of being in charge of all activities there.
Wisconsin is typical: A retained sponge following a laparoscopic cholecystectomy led to complications, and the patient sued the hospital and surgeon, claiming each was responsible for the nurses’ sponge-count error. The lower court had found that “as a matter of law [the surgeon] is in fact responsible and liable for the actions of the parties that were in the operating room with him and working under his supervision ... [the] doctor is the captain of the ship. That doctor is responsible for everything.”
Upon appeal, the Wisconsin Supreme Court reversed the decision of the lower court by rejecting the doctrine altogether, finding that it failed to reflect the emergence of hospitals as modern health care facilities.5
Still, the doctrine is by no means obsolete. In a Colorado case, the court wrote that, even if the nurse were an employee of the hospital and her negligence caused the death of plaintiff’s husband, the Captain of the Ship doctrine would preclude recovery against the hospital.6 It relied on a precedent-setting case that held that once the operating surgeon assumed control in the operating room, the surgeon is liable for the negligence of all persons working there.
Likewise, California has recently breathed new life into the doctrine.7 A case in 2006 involved a patient who underwent arterial bypass surgery in his right leg. A case in which a nurse’s counting error led to a retained sponge ended up with the patient losing his leg. The surgeon initially escaped liability by virtue of the court’s refusal to include Captain of the Ship instructions to the jury, which found the doctor not negligent. The state court of appeals reversed, however, concluding that it was reasonably probable that the jury might have reached a different result had it been so instructed.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949).
2. ED Legal Letter, Feb 1, 2018.
3. Collins v. Hand, 246 A.2d 398 (Pa 1968).
4. AORN J. 2001 Oct;74(4):525-8.
5. Lewis v. Physicians Insurance Company et al., 627 NW2d 484 (Wis 2001).
6. Krane v. St. Anthony Hospital Systems, 738 P.2d 75 (Co 1987).
7. Fields v. Yusuf, 144 Cal.App.4th 1381 (2006).
Patients who record office visits
Question: During an office visit, the patient used a smartphone to record his conversation with the doctor. Which of the following statements is best?
A. This is an intrusion into a private and confidential physician-patient encounter and violates laws against eavesdropping and wiretapping.
B. Recordings are rarely made in the doctor’s office.
C. Both parties must consent before the patient or doctor can legally make such a recording.
D. Surreptitious recording by one party is always illegal.
E. All are incorrect.
Answer: E.
Scholars from Dartmouth recently published their viewpoint on this topic in the Aug. 7, 2017, issue of JAMA.1 Many individuals believe that taping or recording a private conversation is per se illegal.
This is a misconception. Although it is a serious felony to violate wiretapping laws, in fact every jurisdiction permits the taping or recording of doctor-patient conversations where there is all-party consent. A majority of states actually allow the recording even if one party has not given his/her consent. This one-party consent rule is the law in 39 states, including Hawaii and New York. On the other hand, 11 states, such as California, Florida, Massachusetts, and Washington, deem such recordings illegal. A listing of the law in the various states can be found in the JAMA article, in which the authors call for “clear policies that facilitate the positive use of digital recordings.”
In a 2011 case against the Cleveland Clinic, a patient died of a cardiac arrest from hyperkalemia 3 days after elective knee surgery.2 The patient’s children had made a covert recording of a meeting with the chief medical officer when discussing the incident. The hospital attempted to bar the use of the recording, claiming that the information was nondiscoverable under the “peer review” privilege.
Both the trial court and the court of appeals disagreed, being unconvinced that such discussions fell within peer review protection. That the recording was made surreptitiously was not raised as an issue, as Ohio is a one-party consent state, i.e., the law permits a patient to legally tape his/her conversations without obtaining prior approval from the doctor.3
There are clear advantages to having a permanent record of a doctor’s professional opinion. The patient can review the information after the visit for a better understanding or for recall purposes, even sharing the information with family members, caregivers, or others, especially where there is a lack of clarity on instructions.4 In the area of informed consent, this is particularly useful for a reminder of medication side effects and potential complications of proposed surgery.
However, many doctors believe that recordings may be disruptive or prove inhibitory to free and open discussions, and they are concerned about their potential use should litigation arises.
Risk managers and malpractice carriers are divided in their views. For example, it has been stated that, “at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage” (P.J. Barr, unpublished data, 2017, as cited in reference 1). Other carriers are not as supportive, discouraging their insureds from allowing recordings to be made.
In the majority of jurisdictions, recordings are legal if consented to by one of the parties. This means that recordings by the patient with/without consent from or with/without knowledge of the doctor are fully legitimate. It also means that the recordings will be admissible into evidence in a courtroom, unless the information is privileged (protected from discovery) or is otherwise irrelevant or unreliable.
On the other hand, in states requiring all-party consent, such recordings are illegal absent across-the-board consent, and they will be inadmissible into evidence. This cardinal difference in state law raises vital implications for both plaintiff and defendant in litigation, because the recordings may contain incriminating or exculpatory information.
Recordings of conversations in the doctor’s office are by no means rare. A survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and 11% were aware of someone else doing the same.5 The concerned physician could proactively prohibit all office recordings by posting a “no recording” sign in the waiting room in the name of confidentiality and privacy. And should a physician discover that a patient is covertly recording, risk managers have suggested terminating the visit with a warning that a repeat attempt will result in discharge.
Like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., is likely to increase the prevalence of recordings. A practical approach for practicing physicians is to familiarize themselves with the law in the individual state in which they practice and to improve their communication skills irrespective of whether or not there is a recording.
They may wish to consider the view attributed to Richard Boothman, JD, chief risk officer at the University of Michigan Health System: “Recording should cause any caregiver to mind their professionalism and be disciplined in their remarks to their patients. … I believe it can be a very powerful tool to cement the patient/physician relationship and the patient’s understanding of the clinical messages and information. Physicians are significantly benefited by an informed patient.”6
References
1. JAMA. 2017 Aug 8;318(6):513-4.
2. Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011.
3. Ohio Revised Code 2933.52.
4. JAMA. 2015 Apr 28;313(16):1615-6.
5. BMJ Open. 2015 Aug 11;5(8):e008566.
6. “Your office is being recorded.” Medscape, April 3, 2018.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
Question: During an office visit, the patient used a smartphone to record his conversation with the doctor. Which of the following statements is best?
A. This is an intrusion into a private and confidential physician-patient encounter and violates laws against eavesdropping and wiretapping.
B. Recordings are rarely made in the doctor’s office.
C. Both parties must consent before the patient or doctor can legally make such a recording.
D. Surreptitious recording by one party is always illegal.
E. All are incorrect.
Answer: E.
Scholars from Dartmouth recently published their viewpoint on this topic in the Aug. 7, 2017, issue of JAMA.1 Many individuals believe that taping or recording a private conversation is per se illegal.
This is a misconception. Although it is a serious felony to violate wiretapping laws, in fact every jurisdiction permits the taping or recording of doctor-patient conversations where there is all-party consent. A majority of states actually allow the recording even if one party has not given his/her consent. This one-party consent rule is the law in 39 states, including Hawaii and New York. On the other hand, 11 states, such as California, Florida, Massachusetts, and Washington, deem such recordings illegal. A listing of the law in the various states can be found in the JAMA article, in which the authors call for “clear policies that facilitate the positive use of digital recordings.”
In a 2011 case against the Cleveland Clinic, a patient died of a cardiac arrest from hyperkalemia 3 days after elective knee surgery.2 The patient’s children had made a covert recording of a meeting with the chief medical officer when discussing the incident. The hospital attempted to bar the use of the recording, claiming that the information was nondiscoverable under the “peer review” privilege.
Both the trial court and the court of appeals disagreed, being unconvinced that such discussions fell within peer review protection. That the recording was made surreptitiously was not raised as an issue, as Ohio is a one-party consent state, i.e., the law permits a patient to legally tape his/her conversations without obtaining prior approval from the doctor.3
There are clear advantages to having a permanent record of a doctor’s professional opinion. The patient can review the information after the visit for a better understanding or for recall purposes, even sharing the information with family members, caregivers, or others, especially where there is a lack of clarity on instructions.4 In the area of informed consent, this is particularly useful for a reminder of medication side effects and potential complications of proposed surgery.
However, many doctors believe that recordings may be disruptive or prove inhibitory to free and open discussions, and they are concerned about their potential use should litigation arises.
Risk managers and malpractice carriers are divided in their views. For example, it has been stated that, “at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage” (P.J. Barr, unpublished data, 2017, as cited in reference 1). Other carriers are not as supportive, discouraging their insureds from allowing recordings to be made.
In the majority of jurisdictions, recordings are legal if consented to by one of the parties. This means that recordings by the patient with/without consent from or with/without knowledge of the doctor are fully legitimate. It also means that the recordings will be admissible into evidence in a courtroom, unless the information is privileged (protected from discovery) or is otherwise irrelevant or unreliable.
On the other hand, in states requiring all-party consent, such recordings are illegal absent across-the-board consent, and they will be inadmissible into evidence. This cardinal difference in state law raises vital implications for both plaintiff and defendant in litigation, because the recordings may contain incriminating or exculpatory information.
Recordings of conversations in the doctor’s office are by no means rare. A survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and 11% were aware of someone else doing the same.5 The concerned physician could proactively prohibit all office recordings by posting a “no recording” sign in the waiting room in the name of confidentiality and privacy. And should a physician discover that a patient is covertly recording, risk managers have suggested terminating the visit with a warning that a repeat attempt will result in discharge.
Like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., is likely to increase the prevalence of recordings. A practical approach for practicing physicians is to familiarize themselves with the law in the individual state in which they practice and to improve their communication skills irrespective of whether or not there is a recording.
They may wish to consider the view attributed to Richard Boothman, JD, chief risk officer at the University of Michigan Health System: “Recording should cause any caregiver to mind their professionalism and be disciplined in their remarks to their patients. … I believe it can be a very powerful tool to cement the patient/physician relationship and the patient’s understanding of the clinical messages and information. Physicians are significantly benefited by an informed patient.”6
References
1. JAMA. 2017 Aug 8;318(6):513-4.
2. Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011.
3. Ohio Revised Code 2933.52.
4. JAMA. 2015 Apr 28;313(16):1615-6.
5. BMJ Open. 2015 Aug 11;5(8):e008566.
6. “Your office is being recorded.” Medscape, April 3, 2018.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
Question: During an office visit, the patient used a smartphone to record his conversation with the doctor. Which of the following statements is best?
A. This is an intrusion into a private and confidential physician-patient encounter and violates laws against eavesdropping and wiretapping.
B. Recordings are rarely made in the doctor’s office.
C. Both parties must consent before the patient or doctor can legally make such a recording.
D. Surreptitious recording by one party is always illegal.
E. All are incorrect.
Answer: E.
Scholars from Dartmouth recently published their viewpoint on this topic in the Aug. 7, 2017, issue of JAMA.1 Many individuals believe that taping or recording a private conversation is per se illegal.
This is a misconception. Although it is a serious felony to violate wiretapping laws, in fact every jurisdiction permits the taping or recording of doctor-patient conversations where there is all-party consent. A majority of states actually allow the recording even if one party has not given his/her consent. This one-party consent rule is the law in 39 states, including Hawaii and New York. On the other hand, 11 states, such as California, Florida, Massachusetts, and Washington, deem such recordings illegal. A listing of the law in the various states can be found in the JAMA article, in which the authors call for “clear policies that facilitate the positive use of digital recordings.”
In a 2011 case against the Cleveland Clinic, a patient died of a cardiac arrest from hyperkalemia 3 days after elective knee surgery.2 The patient’s children had made a covert recording of a meeting with the chief medical officer when discussing the incident. The hospital attempted to bar the use of the recording, claiming that the information was nondiscoverable under the “peer review” privilege.
Both the trial court and the court of appeals disagreed, being unconvinced that such discussions fell within peer review protection. That the recording was made surreptitiously was not raised as an issue, as Ohio is a one-party consent state, i.e., the law permits a patient to legally tape his/her conversations without obtaining prior approval from the doctor.3
There are clear advantages to having a permanent record of a doctor’s professional opinion. The patient can review the information after the visit for a better understanding or for recall purposes, even sharing the information with family members, caregivers, or others, especially where there is a lack of clarity on instructions.4 In the area of informed consent, this is particularly useful for a reminder of medication side effects and potential complications of proposed surgery.
However, many doctors believe that recordings may be disruptive or prove inhibitory to free and open discussions, and they are concerned about their potential use should litigation arises.
Risk managers and malpractice carriers are divided in their views. For example, it has been stated that, “at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage” (P.J. Barr, unpublished data, 2017, as cited in reference 1). Other carriers are not as supportive, discouraging their insureds from allowing recordings to be made.
In the majority of jurisdictions, recordings are legal if consented to by one of the parties. This means that recordings by the patient with/without consent from or with/without knowledge of the doctor are fully legitimate. It also means that the recordings will be admissible into evidence in a courtroom, unless the information is privileged (protected from discovery) or is otherwise irrelevant or unreliable.
On the other hand, in states requiring all-party consent, such recordings are illegal absent across-the-board consent, and they will be inadmissible into evidence. This cardinal difference in state law raises vital implications for both plaintiff and defendant in litigation, because the recordings may contain incriminating or exculpatory information.
Recordings of conversations in the doctor’s office are by no means rare. A survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and 11% were aware of someone else doing the same.5 The concerned physician could proactively prohibit all office recordings by posting a “no recording” sign in the waiting room in the name of confidentiality and privacy. And should a physician discover that a patient is covertly recording, risk managers have suggested terminating the visit with a warning that a repeat attempt will result in discharge.
Like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., is likely to increase the prevalence of recordings. A practical approach for practicing physicians is to familiarize themselves with the law in the individual state in which they practice and to improve their communication skills irrespective of whether or not there is a recording.
They may wish to consider the view attributed to Richard Boothman, JD, chief risk officer at the University of Michigan Health System: “Recording should cause any caregiver to mind their professionalism and be disciplined in their remarks to their patients. … I believe it can be a very powerful tool to cement the patient/physician relationship and the patient’s understanding of the clinical messages and information. Physicians are significantly benefited by an informed patient.”6
References
1. JAMA. 2017 Aug 8;318(6):513-4.
2. Smith v. Cleveland Clinic, 197 Ohio App.3d 524, 2011.
3. Ohio Revised Code 2933.52.
4. JAMA. 2015 Apr 28;313(16):1615-6.
5. BMJ Open. 2015 Aug 11;5(8):e008566.
6. “Your office is being recorded.” Medscape, April 3, 2018.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
How the ADA shapes health care
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a 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. For additional information, readers may contact the author at [email protected].
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Consent and DNR orders
Question: Paramedics brought an unconscious 70-year-old man to a Florida hospital emergency department. The patient had the words “Do Not Resuscitate” tattooed onto his chest. No one accompanied him, and he had no identifications on his person. His blood alcohol level was elevated, and a few hours after his arrival, he lapsed into severe metabolic acidosis and hypotensive shock. The treating team decided to enter a DNR order, and the patient died shortly thereafter without benefit of cardiopulmonary resuscitation.
Which of the following is best?
A. An ethics consult may suggest honoring the patient’s DNR wishes, as it is reasonable to infer that the tattoo expressed an authentic preference.
B. It has been said, but remains debatable, that tattoos might represent “permanent reminders of regretted decisions made while the person was intoxicated.”
C. An earlier case report in the literature cautioned that the tattooed expression of a DNR request did not reflect that particular patient’s current wishes.
D. If this patient’s Florida Department of Health out-of-hospital DNR order confirms his DNR preference, then it is appropriate to withhold resuscitation.
E. All are correct.
ANSWER: E. The above hypothetical situation is modified from a recent case report in the correspondence section of the New England Journal of Medicine.1 It can be read as offering a sharp and dramatic focus on the issue of consent surrounding decisions to withhold CPR.
In 1983, the President’s Commission for the Study of Ethical Problems in Medicine supported DNR protocols (“no code”) based on three value considerations: self-determination, well-being, and equity.2
The physician is obligated to discuss with the patient or surrogate the procedure, risks, and benefits of CPR so that an informed choice can be made. DNR means that, in the event of a cardiac or respiratory arrest, no CPR efforts would be undertaken. DNR orders are not exclusive to the in-hospital setting, as some states, for example, Florida and Texas, have also enacted statutes that allow such orders to be valid outside the hospital.
Critics lament that problems – many surrounding the consent issue – continue to plague DNR orders.3 Discussions are often vague, and they may not meet the threshold of informed consent requirements, because they frequently omit risks and complications. A resident, rather than the attending physician, typically performs this important task. This is compounded by ill-timed discussions and wrong assumptions about patients’ preferences, which may in fact be ignored.4
Physicians sometimes extrapolate DNR orders to limit other treatments. Or, they perform CPR in contraindicated situations such as terminal illnesses, where death is expected, which amounts to “a positive violation of an individual’s right to die with dignity.” In some situations, physicians are known to override a patient’s DNR request.
Take the operating-room conundrum. There, the immediate availability of drugs, heightened skills, and in-place procedures significantly improve survival following a cardiopulmonary arrest. Studies show a 50% survival rate, versus 8%-14% elsewhere in the hospital. A Swedish study showed that 65% of the patients who had a cardiac arrest perioperatively were successfully resuscitated. When anesthesia caused the arrest, for example, esophageal intubation, disconnection from mechanical ventilation, or prolonged exposure to high concentrations of anesthetics, the recovery rate jumped to 92%.
Terminally ill patients typically disavow CPR when choosing a palliative course of action. However, surgery can be a part of palliation. In 1991, approximately 15% of patients with DNR orders had a surgical procedure, with most interventions targeting comfort and/or nursing care. When a terminally ill patient with a DNR order undergoes surgery, how should physicians deal with the patient’s no-code status, especially if an iatrogenic cardiac arrest should occur?
Because overriding a patient’s DNR wish violates the right of self-determination, a reasonable rule is to require the surgeon and/or anesthesiologist to discuss preoperatively the increased risk of a cardiac arrest during surgery, as well as the markedly improved chance of a successful resuscitation. The patient will then decide whether to retain his/her original DNR intent, or to suspend its execution in the perioperative period.5
What about iatrogenesis?
In 1999, David Casarett, MD, and Lainie F. Ross, MD, PhD, assessed whether physicians were more likely to override a DNR order if a hypothetical cardiac arrest was caused iatrogenically.6 Their survey revealed that 69% of physicians were very likely to do so. The authors suggested three explanations: 1) concern for malpractice litigation, 2) feelings of guilt or responsibility, and 3) the belief that patients do not consider the possibility of an iatrogenic cardiac arrest when they consent to a DNR order. Physicians may also believe a “properly negotiated DNR order does not apply to all foreseeable circumstances.”
However, some ethicists believe that an iatrogenic mishap does not make it permissible to override a patient’s prior refusal of treatment, because errors should not alter ethical obligations to respect a patient’s wishes to forgo treatment, including CPR.
Can a DNR order exist if it is against a patient’s wishes?7 In Gilgunn v. Massachusetts General Hospital, a 71-year-old diabetic woman with heart disease, breast cancer, and a hip fracture suffered two grand mal seizures and lapsed into a coma.8 Her daughter was the surrogate decision maker, and she made it clear that her mother always said she wanted everything done. After several weeks, the physicians decided that further treatment would be futile.
The chair of the ethics committee felt that the daughter’s opinion was not relevant because CPR was not a genuine therapeutic option and would be “medically contraindicated, inhumane, and unethical.” Accordingly, the attending physician entered a DNR order despite strong protest from the daughter. The patient died shortly thereafter without receiving CPR, and the daughter filed a negligence lawsuit against the hospital.
Still, there are state and federal statutes touching on DNR orders that warrant careful attention. For example, New York Public Health Law Section 2962, paragraph 1, states: “Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate ...” This raises the question as to whether it is ever legally permissible in New York to enter a unilateral DNR order against the wishes of the patient.
And the federal “anti-dumping” law governing emergency treatment, widely known as EMTALA (Emergency Medical Treatment and Labor Act), requires all emergency departments to provide treatment necessary to prevent the material deterioration of the individual’s condition. This would always include the use of CPR unless specifically rejected by the patient or surrogate, as the law does not contain a “standard of care” or “futility” exception.9
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. For additional information, readers may contact the author at [email protected].
References
1. N Engl J Med. 2017 Nov 30;377(22):2192-3.
2. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment. Washington, DC: Government Printing Office, 1983.
3. J Gen Intern Med. 2011 Jul;26(7):791-7.
4. JAMA. 1995 Nov 22-29;274(20):1591-8.
5. Hawaii Med J. 2001 Mar;60(3):64-7.
6. N Engl J Med. 1997 Jun 26;336(26):1908-10.
7. Tan SY. Futility and DNR Orders. Internal Medicine News, March 21, 2014.
8. Gilgunn v. Mass. General Hosp. No. 92-4820 (Mass. Super Ct. Apr. 21, 1995).
9. In re Baby K, 16 F.3d 590 (4th Cir. 1994).
Question: Paramedics brought an unconscious 70-year-old man to a Florida hospital emergency department. The patient had the words “Do Not Resuscitate” tattooed onto his chest. No one accompanied him, and he had no identifications on his person. His blood alcohol level was elevated, and a few hours after his arrival, he lapsed into severe metabolic acidosis and hypotensive shock. The treating team decided to enter a DNR order, and the patient died shortly thereafter without benefit of cardiopulmonary resuscitation.
Which of the following is best?
A. An ethics consult may suggest honoring the patient’s DNR wishes, as it is reasonable to infer that the tattoo expressed an authentic preference.
B. It has been said, but remains debatable, that tattoos might represent “permanent reminders of regretted decisions made while the person was intoxicated.”
C. An earlier case report in the literature cautioned that the tattooed expression of a DNR request did not reflect that particular patient’s current wishes.
D. If this patient’s Florida Department of Health out-of-hospital DNR order confirms his DNR preference, then it is appropriate to withhold resuscitation.
E. All are correct.
ANSWER: E. The above hypothetical situation is modified from a recent case report in the correspondence section of the New England Journal of Medicine.1 It can be read as offering a sharp and dramatic focus on the issue of consent surrounding decisions to withhold CPR.
In 1983, the President’s Commission for the Study of Ethical Problems in Medicine supported DNR protocols (“no code”) based on three value considerations: self-determination, well-being, and equity.2
The physician is obligated to discuss with the patient or surrogate the procedure, risks, and benefits of CPR so that an informed choice can be made. DNR means that, in the event of a cardiac or respiratory arrest, no CPR efforts would be undertaken. DNR orders are not exclusive to the in-hospital setting, as some states, for example, Florida and Texas, have also enacted statutes that allow such orders to be valid outside the hospital.
Critics lament that problems – many surrounding the consent issue – continue to plague DNR orders.3 Discussions are often vague, and they may not meet the threshold of informed consent requirements, because they frequently omit risks and complications. A resident, rather than the attending physician, typically performs this important task. This is compounded by ill-timed discussions and wrong assumptions about patients’ preferences, which may in fact be ignored.4
Physicians sometimes extrapolate DNR orders to limit other treatments. Or, they perform CPR in contraindicated situations such as terminal illnesses, where death is expected, which amounts to “a positive violation of an individual’s right to die with dignity.” In some situations, physicians are known to override a patient’s DNR request.
Take the operating-room conundrum. There, the immediate availability of drugs, heightened skills, and in-place procedures significantly improve survival following a cardiopulmonary arrest. Studies show a 50% survival rate, versus 8%-14% elsewhere in the hospital. A Swedish study showed that 65% of the patients who had a cardiac arrest perioperatively were successfully resuscitated. When anesthesia caused the arrest, for example, esophageal intubation, disconnection from mechanical ventilation, or prolonged exposure to high concentrations of anesthetics, the recovery rate jumped to 92%.
Terminally ill patients typically disavow CPR when choosing a palliative course of action. However, surgery can be a part of palliation. In 1991, approximately 15% of patients with DNR orders had a surgical procedure, with most interventions targeting comfort and/or nursing care. When a terminally ill patient with a DNR order undergoes surgery, how should physicians deal with the patient’s no-code status, especially if an iatrogenic cardiac arrest should occur?
Because overriding a patient’s DNR wish violates the right of self-determination, a reasonable rule is to require the surgeon and/or anesthesiologist to discuss preoperatively the increased risk of a cardiac arrest during surgery, as well as the markedly improved chance of a successful resuscitation. The patient will then decide whether to retain his/her original DNR intent, or to suspend its execution in the perioperative period.5
What about iatrogenesis?
In 1999, David Casarett, MD, and Lainie F. Ross, MD, PhD, assessed whether physicians were more likely to override a DNR order if a hypothetical cardiac arrest was caused iatrogenically.6 Their survey revealed that 69% of physicians were very likely to do so. The authors suggested three explanations: 1) concern for malpractice litigation, 2) feelings of guilt or responsibility, and 3) the belief that patients do not consider the possibility of an iatrogenic cardiac arrest when they consent to a DNR order. Physicians may also believe a “properly negotiated DNR order does not apply to all foreseeable circumstances.”
However, some ethicists believe that an iatrogenic mishap does not make it permissible to override a patient’s prior refusal of treatment, because errors should not alter ethical obligations to respect a patient’s wishes to forgo treatment, including CPR.
Can a DNR order exist if it is against a patient’s wishes?7 In Gilgunn v. Massachusetts General Hospital, a 71-year-old diabetic woman with heart disease, breast cancer, and a hip fracture suffered two grand mal seizures and lapsed into a coma.8 Her daughter was the surrogate decision maker, and she made it clear that her mother always said she wanted everything done. After several weeks, the physicians decided that further treatment would be futile.
The chair of the ethics committee felt that the daughter’s opinion was not relevant because CPR was not a genuine therapeutic option and would be “medically contraindicated, inhumane, and unethical.” Accordingly, the attending physician entered a DNR order despite strong protest from the daughter. The patient died shortly thereafter without receiving CPR, and the daughter filed a negligence lawsuit against the hospital.
Still, there are state and federal statutes touching on DNR orders that warrant careful attention. For example, New York Public Health Law Section 2962, paragraph 1, states: “Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate ...” This raises the question as to whether it is ever legally permissible in New York to enter a unilateral DNR order against the wishes of the patient.
And the federal “anti-dumping” law governing emergency treatment, widely known as EMTALA (Emergency Medical Treatment and Labor Act), requires all emergency departments to provide treatment necessary to prevent the material deterioration of the individual’s condition. This would always include the use of CPR unless specifically rejected by the patient or surrogate, as the law does not contain a “standard of care” or “futility” exception.9
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. For additional information, readers may contact the author at [email protected].
References
1. N Engl J Med. 2017 Nov 30;377(22):2192-3.
2. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment. Washington, DC: Government Printing Office, 1983.
3. J Gen Intern Med. 2011 Jul;26(7):791-7.
4. JAMA. 1995 Nov 22-29;274(20):1591-8.
5. Hawaii Med J. 2001 Mar;60(3):64-7.
6. N Engl J Med. 1997 Jun 26;336(26):1908-10.
7. Tan SY. Futility and DNR Orders. Internal Medicine News, March 21, 2014.
8. Gilgunn v. Mass. General Hosp. No. 92-4820 (Mass. Super Ct. Apr. 21, 1995).
9. In re Baby K, 16 F.3d 590 (4th Cir. 1994).
Question: Paramedics brought an unconscious 70-year-old man to a Florida hospital emergency department. The patient had the words “Do Not Resuscitate” tattooed onto his chest. No one accompanied him, and he had no identifications on his person. His blood alcohol level was elevated, and a few hours after his arrival, he lapsed into severe metabolic acidosis and hypotensive shock. The treating team decided to enter a DNR order, and the patient died shortly thereafter without benefit of cardiopulmonary resuscitation.
Which of the following is best?
A. An ethics consult may suggest honoring the patient’s DNR wishes, as it is reasonable to infer that the tattoo expressed an authentic preference.
B. It has been said, but remains debatable, that tattoos might represent “permanent reminders of regretted decisions made while the person was intoxicated.”
C. An earlier case report in the literature cautioned that the tattooed expression of a DNR request did not reflect that particular patient’s current wishes.
D. If this patient’s Florida Department of Health out-of-hospital DNR order confirms his DNR preference, then it is appropriate to withhold resuscitation.
E. All are correct.
ANSWER: E. The above hypothetical situation is modified from a recent case report in the correspondence section of the New England Journal of Medicine.1 It can be read as offering a sharp and dramatic focus on the issue of consent surrounding decisions to withhold CPR.
In 1983, the President’s Commission for the Study of Ethical Problems in Medicine supported DNR protocols (“no code”) based on three value considerations: self-determination, well-being, and equity.2
The physician is obligated to discuss with the patient or surrogate the procedure, risks, and benefits of CPR so that an informed choice can be made. DNR means that, in the event of a cardiac or respiratory arrest, no CPR efforts would be undertaken. DNR orders are not exclusive to the in-hospital setting, as some states, for example, Florida and Texas, have also enacted statutes that allow such orders to be valid outside the hospital.
Critics lament that problems – many surrounding the consent issue – continue to plague DNR orders.3 Discussions are often vague, and they may not meet the threshold of informed consent requirements, because they frequently omit risks and complications. A resident, rather than the attending physician, typically performs this important task. This is compounded by ill-timed discussions and wrong assumptions about patients’ preferences, which may in fact be ignored.4
Physicians sometimes extrapolate DNR orders to limit other treatments. Or, they perform CPR in contraindicated situations such as terminal illnesses, where death is expected, which amounts to “a positive violation of an individual’s right to die with dignity.” In some situations, physicians are known to override a patient’s DNR request.
Take the operating-room conundrum. There, the immediate availability of drugs, heightened skills, and in-place procedures significantly improve survival following a cardiopulmonary arrest. Studies show a 50% survival rate, versus 8%-14% elsewhere in the hospital. A Swedish study showed that 65% of the patients who had a cardiac arrest perioperatively were successfully resuscitated. When anesthesia caused the arrest, for example, esophageal intubation, disconnection from mechanical ventilation, or prolonged exposure to high concentrations of anesthetics, the recovery rate jumped to 92%.
Terminally ill patients typically disavow CPR when choosing a palliative course of action. However, surgery can be a part of palliation. In 1991, approximately 15% of patients with DNR orders had a surgical procedure, with most interventions targeting comfort and/or nursing care. When a terminally ill patient with a DNR order undergoes surgery, how should physicians deal with the patient’s no-code status, especially if an iatrogenic cardiac arrest should occur?
Because overriding a patient’s DNR wish violates the right of self-determination, a reasonable rule is to require the surgeon and/or anesthesiologist to discuss preoperatively the increased risk of a cardiac arrest during surgery, as well as the markedly improved chance of a successful resuscitation. The patient will then decide whether to retain his/her original DNR intent, or to suspend its execution in the perioperative period.5
What about iatrogenesis?
In 1999, David Casarett, MD, and Lainie F. Ross, MD, PhD, assessed whether physicians were more likely to override a DNR order if a hypothetical cardiac arrest was caused iatrogenically.6 Their survey revealed that 69% of physicians were very likely to do so. The authors suggested three explanations: 1) concern for malpractice litigation, 2) feelings of guilt or responsibility, and 3) the belief that patients do not consider the possibility of an iatrogenic cardiac arrest when they consent to a DNR order. Physicians may also believe a “properly negotiated DNR order does not apply to all foreseeable circumstances.”
However, some ethicists believe that an iatrogenic mishap does not make it permissible to override a patient’s prior refusal of treatment, because errors should not alter ethical obligations to respect a patient’s wishes to forgo treatment, including CPR.
Can a DNR order exist if it is against a patient’s wishes?7 In Gilgunn v. Massachusetts General Hospital, a 71-year-old diabetic woman with heart disease, breast cancer, and a hip fracture suffered two grand mal seizures and lapsed into a coma.8 Her daughter was the surrogate decision maker, and she made it clear that her mother always said she wanted everything done. After several weeks, the physicians decided that further treatment would be futile.
The chair of the ethics committee felt that the daughter’s opinion was not relevant because CPR was not a genuine therapeutic option and would be “medically contraindicated, inhumane, and unethical.” Accordingly, the attending physician entered a DNR order despite strong protest from the daughter. The patient died shortly thereafter without receiving CPR, and the daughter filed a negligence lawsuit against the hospital.
Still, there are state and federal statutes touching on DNR orders that warrant careful attention. For example, New York Public Health Law Section 2962, paragraph 1, states: “Every person admitted to a hospital shall be presumed to consent to the administration of cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, unless there is consent to the issuance of an order not to resuscitate ...” This raises the question as to whether it is ever legally permissible in New York to enter a unilateral DNR order against the wishes of the patient.
And the federal “anti-dumping” law governing emergency treatment, widely known as EMTALA (Emergency Medical Treatment and Labor Act), requires all emergency departments to provide treatment necessary to prevent the material deterioration of the individual’s condition. This would always include the use of CPR unless specifically rejected by the patient or surrogate, as the law does not contain a “standard of care” or “futility” exception.9
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. For additional information, readers may contact the author at [email protected].
References
1. N Engl J Med. 2017 Nov 30;377(22):2192-3.
2. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining Treatment. Washington, DC: Government Printing Office, 1983.
3. J Gen Intern Med. 2011 Jul;26(7):791-7.
4. JAMA. 1995 Nov 22-29;274(20):1591-8.
5. Hawaii Med J. 2001 Mar;60(3):64-7.
6. N Engl J Med. 1997 Jun 26;336(26):1908-10.
7. Tan SY. Futility and DNR Orders. Internal Medicine News, March 21, 2014.
8. Gilgunn v. Mass. General Hosp. No. 92-4820 (Mass. Super Ct. Apr. 21, 1995).
9. In re Baby K, 16 F.3d 590 (4th Cir. 1994).
Sexual harassment
Question: A medical assistant alleged that Dr. Y sexually harassed her by sending anonymous gifts and messages such as, “you’re gorgeous,” and “I love your figure.” It was a repeat of Dr. Y’s previous behavior pattern directed at a different worker, who had lodged a complaint with the human resources department. The medical assistant now files a sexual harassment action under Title VII of the federal Civil Rights Act of 1964 against the health care institution, alleging a hostile work environment.
Which of the following is false?
A. Sexual harassment is a form of sexual misconduct regulated by state medical boards.
B. Mere words, without physical action, may suffice to be deemed sexual harassment.
C. A hostile environment arises when offensive conduct is so severe and pervasive as to amount to job discrimination.
D. Sexual harassment is a civil rights violation unique to the workplace.
E. Liability may attach to the supervisor, institution, or the harasser.
Answer: D. This hypothetical is modified from an actual Connecticut case that was recently decided in favor of the plaintiff.1 In that case, which involved a dentist, the federal Second Circuit unanimously rejected the University of Connecticut Health Center’s appeal against a jury’s verdict holding it responsible for its employee’s sexual harassment of a coworker, who was awarded $125,000. It ruled that the health center should have known of its employee’s harassing behavior.
Sexual harassment, a current hot topic, is pervasive, affecting a diversity of individuals in the fields of media, sports, politics, judiciary, education, entertainment, and others. The medical profession is no exception, and studies indicate that sexual harassment affects patients and physicians alike, occurring in hospitals, private offices, and academic centers.
In a large questionnaire study involving 4,501 female physicians, the authors found a prevalence rate of 47.7%. Harassment was more common while in medical school or during internship, residency, or fellowship than in practice.2 Patients may be the harassers. In 599 of the 1,064 licensed female family physicians in Ontario, more than 75% reported sexual harassment by patients at some time during their careers, either in their own offices by their own patients, or in settings such as emergency departments and clinics, where unknown patients presented an even higher risk.3
When physicians sexually harass fellow workers such as nurses, they distract their victims from providing attentive and competent care. In a review of the subject, researchers cited a study of 188 critical care nurses in hospitals, where nearly half (46%) reported experiencing sexual harassment that included “offensive sexual remarks, unwanted physical contact, unwanted nonverbal attention, requests for unwanted dates, sexual propositions, and physical assault.”4 To this list must now be added misconduct via the use of social media. In the study, physicians (82%), coworkers (20%), and immediate supervisors (7%) accounted for most of the incidents.
Neglecting to look seriously into complaints or to monitor and remedy the situation may create a hostile environment and trigger liability.
An example is the recent well-publicized case of Olympics team physician Dr. Larry Nassar, who was also a faculty member at Michigan State University. Olympic gold medalist McKayla Maroney named both the university and the U.S. Olympic Committee as codefendants in a lawsuit alleging that the institutions failed to properly investigate the team doctor’s criminal sexual conduct.
In Anania v. Daubenspeck Chiropractic, two employees of a chiropractor alleged that his patients sexually harassed them, but he did not remedy the situation.5 The trial court initially dismissed their lawsuit, holding that Ohio law did not recognize a cause of action for sexual harassment by a nonemployee patient, and that liability for sexual harassment can only exist in the context of respondeat superior (employer-employee) liability.
However, the court of appeals held that so long as the chiropractor knew or should have known of the harassment, and failed to take corrective action, he could be liable for allowing a hostile environment to exist.
Negligent supervision is another favorite plaintiff’s cause of action. In Doe v. Borromeo, a patient sought to hold the hospital liable for sexual assault by a physician during a medical exam.6 The lower state court had summarily dismissed the case, which was based on vicarious liability, but the state court of appeals reversed, finding the patient’s complaint against the hospital included a negligent supervision claim.
The appeals court reasoned that this was distinguishable from one based upon vicarious liability, so long as the supervising entity had a duty to protect the victim – and such a duty can only be established if the supervising entity knew or should have known of the existence of the harasser’s propensities, if any, to commit criminal and tortious acts.
Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission. The commission’s website explains the law in clear and simple language:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex.
“For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.”7
For sexual harassment to occur, the aggrieved party must either show a “hostile environment” or “quid pro quo” situation.
In a hostile environment case, the harassment is serious and persistent, creating unacceptable and offensive work conditions. The plaintiff has to show that the employer knew or should have known of the situation but failed to remedy it.
The “quid pro quo” type of case requires a showing that a person in authority conditioned some aspect of the employee’s employment, such as promotion or retention, upon a sexual favor or relationship.
The U.S. Supreme Court has both clarified and muddied the law’s position on these two previously distinct types of sexual harassment.
In the landmark case of Burlington Industries v. Ellerth, the plaintiff, who was a salesperson, alleged that a supervisor made advances to her and threatened to deny her certain job benefits if she did not cooperate.8 The threats were never carried out, and she was in fact promoted; but her lawsuit alleged that the harassment caused her resignation and amounted to a “constructive” discharge.
Likewise, in Faragher v. City of Boca Raton, the plaintiff, employed as a lifeguard, alleged that her work environment was riddled with crude remarks and obscenities.9 One of the two supervisors reportedly once said to Faragher, “Date me or clean toilets for a year.” Another lifeguard had previously lodged similar complaints. The plaintiff ultimately resigned and brought suit.
The U.S. Supreme Court characterized both of these as “hostile environment” rather than “quid pro quo” cases, because the plaintiffs did not suffer any direct adverse job action. In its decisions, the court defined the scope of liability and affirmative defenses, holding that employers can be subject to vicarious liability when supervisors create actionable hostile work environments.
In other cases, the Supreme Court has ruled for the use of “the reasonable person in the plaintiff’s position” standard in judging the severity of sexual harassment. The court has also held that the genders of the harasser and the harassed employee are not material in determining whether sexual harassment has occurred.
A physician can be accused of harassing an employee, a nurse, an assistant, a fellow worker, a third party, or a patient. Focusing on misconduct within the doctor-patient relationship, the Federation of State Medical Boards adopted in May 2006 a policy entitled “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”10
Although it did not use the term sexual harassment, the policy emphasized that physician sexual misconduct may include behavior that is verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual. It used the term “sexual impropriety” to denote behavior, gestures, or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient. Together with “sexual violation,” a term the FSMB used when referring to physical sexual contact, they form the basis for disciplinary action by a state medical board.
Caveat: When performing a physical exam, physicians should always use good judgment and sensitivity, relying on the presence of a medical assistant to ensure patient comfort and to alleviate possible embarrassment or anxiety.
Under the federal EEOC rules, the employer rather than the harasser is the defendant. But there are other legal recourses, including tort and criminal actions, that directly target the harasser. Successful plaintiffs may be awarded lost wages, as well as damages for emotional distress, medical expenses, and punitive damages. They may also recover attorney fees.
In one case, a psychiatric nurse was awarded $1.2 million (later reduced to $850,000); in another, a nurse successfully sued a physician’s medical practice and received $150,000 in damages.4 And in an unusual case, a plaintiff was awarded only $1 in damages, but her counsel was paid $41,598 in fees.11 For the practicing doctor, medical board sanction, notoriety, and loss of professional standing and privileges constitute additional costs.
The medical profession is as susceptible as any other – perhaps more so – to allegations of sexual harassment. The magic words for actionable sexual harassment are severe, pervasive, and unwelcome. Although laws in the workplace generally do not prohibit simple teasing, offhand comments, or minor isolated incidents, the line separating these behaviors from bona fide sexual harassment is thin.
Erring on the side of strict and sober professional propriety seems prudent, given the current climate of zero tolerance.
References
1. MacCluskey v. University of Connecticut Health Center, United States Court of Appeals, Second Circuit, No. 17-0807-cv, Dec. 19, 2017.
2. Arch Intern Med. 1998 Feb 23;158(4):352-8.
3. N Engl J Med. 1993 Dec 23;329(26):1936-9.
4. J Nurs Care Qual. 2004 Jul-Sep;19(3):234-41.
5. Anania v. Daubenspeck Chiropractic, 718 N.E. 2d 480 (Ohio 1998).
6. Doe v. Borromeo, Nos. 305162, 305163 (Mich. Ct. App. Sept. 20, 2012).
7. Available at https://www.eeoc.gov/laws/types/sexual_harassment.cfm.
8. Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998).
9. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
10. Federation of State Medical Boards, “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”
11. J Healthc Risk Manag. 1999 Summer;19(3):14-25.
Question: A medical assistant alleged that Dr. Y sexually harassed her by sending anonymous gifts and messages such as, “you’re gorgeous,” and “I love your figure.” It was a repeat of Dr. Y’s previous behavior pattern directed at a different worker, who had lodged a complaint with the human resources department. The medical assistant now files a sexual harassment action under Title VII of the federal Civil Rights Act of 1964 against the health care institution, alleging a hostile work environment.
Which of the following is false?
A. Sexual harassment is a form of sexual misconduct regulated by state medical boards.
B. Mere words, without physical action, may suffice to be deemed sexual harassment.
C. A hostile environment arises when offensive conduct is so severe and pervasive as to amount to job discrimination.
D. Sexual harassment is a civil rights violation unique to the workplace.
E. Liability may attach to the supervisor, institution, or the harasser.
Answer: D. This hypothetical is modified from an actual Connecticut case that was recently decided in favor of the plaintiff.1 In that case, which involved a dentist, the federal Second Circuit unanimously rejected the University of Connecticut Health Center’s appeal against a jury’s verdict holding it responsible for its employee’s sexual harassment of a coworker, who was awarded $125,000. It ruled that the health center should have known of its employee’s harassing behavior.
Sexual harassment, a current hot topic, is pervasive, affecting a diversity of individuals in the fields of media, sports, politics, judiciary, education, entertainment, and others. The medical profession is no exception, and studies indicate that sexual harassment affects patients and physicians alike, occurring in hospitals, private offices, and academic centers.
In a large questionnaire study involving 4,501 female physicians, the authors found a prevalence rate of 47.7%. Harassment was more common while in medical school or during internship, residency, or fellowship than in practice.2 Patients may be the harassers. In 599 of the 1,064 licensed female family physicians in Ontario, more than 75% reported sexual harassment by patients at some time during their careers, either in their own offices by their own patients, or in settings such as emergency departments and clinics, where unknown patients presented an even higher risk.3
When physicians sexually harass fellow workers such as nurses, they distract their victims from providing attentive and competent care. In a review of the subject, researchers cited a study of 188 critical care nurses in hospitals, where nearly half (46%) reported experiencing sexual harassment that included “offensive sexual remarks, unwanted physical contact, unwanted nonverbal attention, requests for unwanted dates, sexual propositions, and physical assault.”4 To this list must now be added misconduct via the use of social media. In the study, physicians (82%), coworkers (20%), and immediate supervisors (7%) accounted for most of the incidents.
Neglecting to look seriously into complaints or to monitor and remedy the situation may create a hostile environment and trigger liability.
An example is the recent well-publicized case of Olympics team physician Dr. Larry Nassar, who was also a faculty member at Michigan State University. Olympic gold medalist McKayla Maroney named both the university and the U.S. Olympic Committee as codefendants in a lawsuit alleging that the institutions failed to properly investigate the team doctor’s criminal sexual conduct.
In Anania v. Daubenspeck Chiropractic, two employees of a chiropractor alleged that his patients sexually harassed them, but he did not remedy the situation.5 The trial court initially dismissed their lawsuit, holding that Ohio law did not recognize a cause of action for sexual harassment by a nonemployee patient, and that liability for sexual harassment can only exist in the context of respondeat superior (employer-employee) liability.
However, the court of appeals held that so long as the chiropractor knew or should have known of the harassment, and failed to take corrective action, he could be liable for allowing a hostile environment to exist.
Negligent supervision is another favorite plaintiff’s cause of action. In Doe v. Borromeo, a patient sought to hold the hospital liable for sexual assault by a physician during a medical exam.6 The lower state court had summarily dismissed the case, which was based on vicarious liability, but the state court of appeals reversed, finding the patient’s complaint against the hospital included a negligent supervision claim.
The appeals court reasoned that this was distinguishable from one based upon vicarious liability, so long as the supervising entity had a duty to protect the victim – and such a duty can only be established if the supervising entity knew or should have known of the existence of the harasser’s propensities, if any, to commit criminal and tortious acts.
Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission. The commission’s website explains the law in clear and simple language:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex.
“For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.”7
For sexual harassment to occur, the aggrieved party must either show a “hostile environment” or “quid pro quo” situation.
In a hostile environment case, the harassment is serious and persistent, creating unacceptable and offensive work conditions. The plaintiff has to show that the employer knew or should have known of the situation but failed to remedy it.
The “quid pro quo” type of case requires a showing that a person in authority conditioned some aspect of the employee’s employment, such as promotion or retention, upon a sexual favor or relationship.
The U.S. Supreme Court has both clarified and muddied the law’s position on these two previously distinct types of sexual harassment.
In the landmark case of Burlington Industries v. Ellerth, the plaintiff, who was a salesperson, alleged that a supervisor made advances to her and threatened to deny her certain job benefits if she did not cooperate.8 The threats were never carried out, and she was in fact promoted; but her lawsuit alleged that the harassment caused her resignation and amounted to a “constructive” discharge.
Likewise, in Faragher v. City of Boca Raton, the plaintiff, employed as a lifeguard, alleged that her work environment was riddled with crude remarks and obscenities.9 One of the two supervisors reportedly once said to Faragher, “Date me or clean toilets for a year.” Another lifeguard had previously lodged similar complaints. The plaintiff ultimately resigned and brought suit.
The U.S. Supreme Court characterized both of these as “hostile environment” rather than “quid pro quo” cases, because the plaintiffs did not suffer any direct adverse job action. In its decisions, the court defined the scope of liability and affirmative defenses, holding that employers can be subject to vicarious liability when supervisors create actionable hostile work environments.
In other cases, the Supreme Court has ruled for the use of “the reasonable person in the plaintiff’s position” standard in judging the severity of sexual harassment. The court has also held that the genders of the harasser and the harassed employee are not material in determining whether sexual harassment has occurred.
A physician can be accused of harassing an employee, a nurse, an assistant, a fellow worker, a third party, or a patient. Focusing on misconduct within the doctor-patient relationship, the Federation of State Medical Boards adopted in May 2006 a policy entitled “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”10
Although it did not use the term sexual harassment, the policy emphasized that physician sexual misconduct may include behavior that is verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual. It used the term “sexual impropriety” to denote behavior, gestures, or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient. Together with “sexual violation,” a term the FSMB used when referring to physical sexual contact, they form the basis for disciplinary action by a state medical board.
Caveat: When performing a physical exam, physicians should always use good judgment and sensitivity, relying on the presence of a medical assistant to ensure patient comfort and to alleviate possible embarrassment or anxiety.
Under the federal EEOC rules, the employer rather than the harasser is the defendant. But there are other legal recourses, including tort and criminal actions, that directly target the harasser. Successful plaintiffs may be awarded lost wages, as well as damages for emotional distress, medical expenses, and punitive damages. They may also recover attorney fees.
In one case, a psychiatric nurse was awarded $1.2 million (later reduced to $850,000); in another, a nurse successfully sued a physician’s medical practice and received $150,000 in damages.4 And in an unusual case, a plaintiff was awarded only $1 in damages, but her counsel was paid $41,598 in fees.11 For the practicing doctor, medical board sanction, notoriety, and loss of professional standing and privileges constitute additional costs.
The medical profession is as susceptible as any other – perhaps more so – to allegations of sexual harassment. The magic words for actionable sexual harassment are severe, pervasive, and unwelcome. Although laws in the workplace generally do not prohibit simple teasing, offhand comments, or minor isolated incidents, the line separating these behaviors from bona fide sexual harassment is thin.
Erring on the side of strict and sober professional propriety seems prudent, given the current climate of zero tolerance.
References
1. MacCluskey v. University of Connecticut Health Center, United States Court of Appeals, Second Circuit, No. 17-0807-cv, Dec. 19, 2017.
2. Arch Intern Med. 1998 Feb 23;158(4):352-8.
3. N Engl J Med. 1993 Dec 23;329(26):1936-9.
4. J Nurs Care Qual. 2004 Jul-Sep;19(3):234-41.
5. Anania v. Daubenspeck Chiropractic, 718 N.E. 2d 480 (Ohio 1998).
6. Doe v. Borromeo, Nos. 305162, 305163 (Mich. Ct. App. Sept. 20, 2012).
7. Available at https://www.eeoc.gov/laws/types/sexual_harassment.cfm.
8. Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998).
9. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
10. Federation of State Medical Boards, “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”
11. J Healthc Risk Manag. 1999 Summer;19(3):14-25.
Question: A medical assistant alleged that Dr. Y sexually harassed her by sending anonymous gifts and messages such as, “you’re gorgeous,” and “I love your figure.” It was a repeat of Dr. Y’s previous behavior pattern directed at a different worker, who had lodged a complaint with the human resources department. The medical assistant now files a sexual harassment action under Title VII of the federal Civil Rights Act of 1964 against the health care institution, alleging a hostile work environment.
Which of the following is false?
A. Sexual harassment is a form of sexual misconduct regulated by state medical boards.
B. Mere words, without physical action, may suffice to be deemed sexual harassment.
C. A hostile environment arises when offensive conduct is so severe and pervasive as to amount to job discrimination.
D. Sexual harassment is a civil rights violation unique to the workplace.
E. Liability may attach to the supervisor, institution, or the harasser.
Answer: D. This hypothetical is modified from an actual Connecticut case that was recently decided in favor of the plaintiff.1 In that case, which involved a dentist, the federal Second Circuit unanimously rejected the University of Connecticut Health Center’s appeal against a jury’s verdict holding it responsible for its employee’s sexual harassment of a coworker, who was awarded $125,000. It ruled that the health center should have known of its employee’s harassing behavior.
Sexual harassment, a current hot topic, is pervasive, affecting a diversity of individuals in the fields of media, sports, politics, judiciary, education, entertainment, and others. The medical profession is no exception, and studies indicate that sexual harassment affects patients and physicians alike, occurring in hospitals, private offices, and academic centers.
In a large questionnaire study involving 4,501 female physicians, the authors found a prevalence rate of 47.7%. Harassment was more common while in medical school or during internship, residency, or fellowship than in practice.2 Patients may be the harassers. In 599 of the 1,064 licensed female family physicians in Ontario, more than 75% reported sexual harassment by patients at some time during their careers, either in their own offices by their own patients, or in settings such as emergency departments and clinics, where unknown patients presented an even higher risk.3
When physicians sexually harass fellow workers such as nurses, they distract their victims from providing attentive and competent care. In a review of the subject, researchers cited a study of 188 critical care nurses in hospitals, where nearly half (46%) reported experiencing sexual harassment that included “offensive sexual remarks, unwanted physical contact, unwanted nonverbal attention, requests for unwanted dates, sexual propositions, and physical assault.”4 To this list must now be added misconduct via the use of social media. In the study, physicians (82%), coworkers (20%), and immediate supervisors (7%) accounted for most of the incidents.
Neglecting to look seriously into complaints or to monitor and remedy the situation may create a hostile environment and trigger liability.
An example is the recent well-publicized case of Olympics team physician Dr. Larry Nassar, who was also a faculty member at Michigan State University. Olympic gold medalist McKayla Maroney named both the university and the U.S. Olympic Committee as codefendants in a lawsuit alleging that the institutions failed to properly investigate the team doctor’s criminal sexual conduct.
In Anania v. Daubenspeck Chiropractic, two employees of a chiropractor alleged that his patients sexually harassed them, but he did not remedy the situation.5 The trial court initially dismissed their lawsuit, holding that Ohio law did not recognize a cause of action for sexual harassment by a nonemployee patient, and that liability for sexual harassment can only exist in the context of respondeat superior (employer-employee) liability.
However, the court of appeals held that so long as the chiropractor knew or should have known of the harassment, and failed to take corrective action, he could be liable for allowing a hostile environment to exist.
Negligent supervision is another favorite plaintiff’s cause of action. In Doe v. Borromeo, a patient sought to hold the hospital liable for sexual assault by a physician during a medical exam.6 The lower state court had summarily dismissed the case, which was based on vicarious liability, but the state court of appeals reversed, finding the patient’s complaint against the hospital included a negligent supervision claim.
The appeals court reasoned that this was distinguishable from one based upon vicarious liability, so long as the supervising entity had a duty to protect the victim – and such a duty can only be established if the supervising entity knew or should have known of the existence of the harasser’s propensities, if any, to commit criminal and tortious acts.
Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission. The commission’s website explains the law in clear and simple language:
“It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex.
“For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.”7
For sexual harassment to occur, the aggrieved party must either show a “hostile environment” or “quid pro quo” situation.
In a hostile environment case, the harassment is serious and persistent, creating unacceptable and offensive work conditions. The plaintiff has to show that the employer knew or should have known of the situation but failed to remedy it.
The “quid pro quo” type of case requires a showing that a person in authority conditioned some aspect of the employee’s employment, such as promotion or retention, upon a sexual favor or relationship.
The U.S. Supreme Court has both clarified and muddied the law’s position on these two previously distinct types of sexual harassment.
In the landmark case of Burlington Industries v. Ellerth, the plaintiff, who was a salesperson, alleged that a supervisor made advances to her and threatened to deny her certain job benefits if she did not cooperate.8 The threats were never carried out, and she was in fact promoted; but her lawsuit alleged that the harassment caused her resignation and amounted to a “constructive” discharge.
Likewise, in Faragher v. City of Boca Raton, the plaintiff, employed as a lifeguard, alleged that her work environment was riddled with crude remarks and obscenities.9 One of the two supervisors reportedly once said to Faragher, “Date me or clean toilets for a year.” Another lifeguard had previously lodged similar complaints. The plaintiff ultimately resigned and brought suit.
The U.S. Supreme Court characterized both of these as “hostile environment” rather than “quid pro quo” cases, because the plaintiffs did not suffer any direct adverse job action. In its decisions, the court defined the scope of liability and affirmative defenses, holding that employers can be subject to vicarious liability when supervisors create actionable hostile work environments.
In other cases, the Supreme Court has ruled for the use of “the reasonable person in the plaintiff’s position” standard in judging the severity of sexual harassment. The court has also held that the genders of the harasser and the harassed employee are not material in determining whether sexual harassment has occurred.
A physician can be accused of harassing an employee, a nurse, an assistant, a fellow worker, a third party, or a patient. Focusing on misconduct within the doctor-patient relationship, the Federation of State Medical Boards adopted in May 2006 a policy entitled “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”10
Although it did not use the term sexual harassment, the policy emphasized that physician sexual misconduct may include behavior that is verbal or physical, and may include expressions of thoughts and feelings or gestures that are sexual. It used the term “sexual impropriety” to denote behavior, gestures, or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient. Together with “sexual violation,” a term the FSMB used when referring to physical sexual contact, they form the basis for disciplinary action by a state medical board.
Caveat: When performing a physical exam, physicians should always use good judgment and sensitivity, relying on the presence of a medical assistant to ensure patient comfort and to alleviate possible embarrassment or anxiety.
Under the federal EEOC rules, the employer rather than the harasser is the defendant. But there are other legal recourses, including tort and criminal actions, that directly target the harasser. Successful plaintiffs may be awarded lost wages, as well as damages for emotional distress, medical expenses, and punitive damages. They may also recover attorney fees.
In one case, a psychiatric nurse was awarded $1.2 million (later reduced to $850,000); in another, a nurse successfully sued a physician’s medical practice and received $150,000 in damages.4 And in an unusual case, a plaintiff was awarded only $1 in damages, but her counsel was paid $41,598 in fees.11 For the practicing doctor, medical board sanction, notoriety, and loss of professional standing and privileges constitute additional costs.
The medical profession is as susceptible as any other – perhaps more so – to allegations of sexual harassment. The magic words for actionable sexual harassment are severe, pervasive, and unwelcome. Although laws in the workplace generally do not prohibit simple teasing, offhand comments, or minor isolated incidents, the line separating these behaviors from bona fide sexual harassment is thin.
Erring on the side of strict and sober professional propriety seems prudent, given the current climate of zero tolerance.
References
1. MacCluskey v. University of Connecticut Health Center, United States Court of Appeals, Second Circuit, No. 17-0807-cv, Dec. 19, 2017.
2. Arch Intern Med. 1998 Feb 23;158(4):352-8.
3. N Engl J Med. 1993 Dec 23;329(26):1936-9.
4. J Nurs Care Qual. 2004 Jul-Sep;19(3):234-41.
5. Anania v. Daubenspeck Chiropractic, 718 N.E. 2d 480 (Ohio 1998).
6. Doe v. Borromeo, Nos. 305162, 305163 (Mich. Ct. App. Sept. 20, 2012).
7. Available at https://www.eeoc.gov/laws/types/sexual_harassment.cfm.
8. Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998).
9. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
10. Federation of State Medical Boards, “Addressing Sexual Boundaries: Guidelines for State Medical Boards.”
11. J Healthc Risk Manag. 1999 Summer;19(3):14-25.
Physician-assisted suicide – an update
Question: Choose the best answer regarding physician-assisted suicide in the United States:
A. It is now legal in most states.
B. Under California law, assisting or causing one to commit suicide, including physician-assisted suicide, still remains a felony.
C. Both the U.S. Supreme Court and the New York Court of Appeals have held there is no constitutional right to physician-assisted suicide.
D. The American Medical Association is neutral on the issue.
E. Pain relief is the overriding reason for patients who request physician-assisted suicide.
Answer: C. We reviewed this topic in one of our regular columns in 2013.1 At that time, efforts to legalize physician-assisted suicide (PAS) appeared to be gathering momentum across the country, with four jurisdictions having legalized the practice, beginning with Oregon in 1994. The other states were Washington, Vermont, and Montana, whose Supreme Court held that there was no public interest reason against the practice.2
Since that time, California, Colorado, and the District of Columbia have joined the group. Currently, PAS – but not euthanasia – is legally available in these jurisdictions and in Switzerland, but both can be legally practiced in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.
All state statutes permitting PAS provide similar provisions and safeguards. Only competent individuals who are terminally ill, i.e., 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.
Public support for euthanasia and PAS in the United States is said to have plateaued since the 1990s. But a significant number of Americans, 67%, still favor PAS, up from 56% a decade ago.3 However, not many patients resort to PAS – usually those with terminal cancers or neuromuscular conditions – and 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.4 In Oregon and Washington State, less than 1% of licensed physicians write prescriptions for physician-assisted suicide each year. In contrast, about half or more of physicians in the Netherlands and Belgium reported ever having received a request, and 60% of Dutch physicians have granted such requests.
The California Department of Public Health reported that 111 terminally ill patients availed themselves of California’s End of Life Option Act in the 7 months after it became effective on June 9, 2016.
In a recent review on euthanasia and PAS for the period 1947-2016, Ezekiel Emanuel, MD, and colleagues noted that typical patients were older, white, and well educated, and pain was mostly not reported as the primary motivation.5 A large portion of patients receiving PAS in Oregon and Washington were enrolled in hospice or palliative care. Abuses have not been apparent.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including PAS, still remains a crime; for example, it is considered manslaughter under Hawaii state law §707-702.
In distinguishing between assisting suicide and withdrawing life-sustaining treatment, the U.S. Supreme Court’s landmark 1997 Vacco v. Quill decision emphasized issues of causation and intent.6 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. Glucksberg, 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.7
State supreme courts in Florida, New Mexico, and elsewhere have likewise rebuffed claims of any constitutional right to PAS. The latest court to so rule is in New York, which has a long history of criminalizing assisted suicide.8 The New York Court of Appeals recently addressed claims brought by three terminally ill individuals, several medical providers, and a nonprofit entity seeking a declaration that New York’s “assisted suicide” statutes exclude physicians from prescribing a lethal dose of drugs to terminally ill, competent patients.
The court unequivocally rejected such claims and affirmed that a physician who assists a suicide by prescribing lethal doses of drugs is subject to criminal prosecution for second-degree manslaughter. It refused to regard PAS as being different from assisted suicide in general, and it rejected the constitutional claim to assisted suicide by a terminally ill person. The state appeals court reiterated the U.S. Supreme Court’s distinction between refusing life-sustaining treatment and assisted suicide, the former being “at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions.” The New York Court of Appeals also noted that the state has a legitimate purpose and a rational basis for guarding against the risks of mistake and abuse.
These developments may signal a shift away from the legalization of PAS, as recently suggested in a Washington Post article.9 According to the end-of-life advocacy organization Compassion and Choices, none of the 27 states where such measures were introduced in 2017 passed them into law, including states such as Connecticut, Hawaii, and Rhode Island. In Central and Eastern Europe, support is decreasing, whereas the opposite is true in Western Europe.
U.S. federal lawmakers also appear to be pushing back. On July 13, 2017, the U.S. House Committee on Appropriations voted to block implementation of a “death with dignity” statute passed by the District of Columbia. Further, 11 House members – including 6 Democrats – have introduced a resolution asserting that PAS undermines a key safeguard that protects our nation’s most vulnerable citizens, including the elderly, people with disabilities, and people experiencing psychiatric diagnoses.10
The American Medical Association is steadfast in its opposition to PAS and euthanasia. In its latest Code of Ethics, the AMA reaffirmed its long-held position that “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.”11
References
1. “Physician-assisted suicide,” Internal Medicine News, Oct. 14, 2013.
2. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
3. “Majority of Americans Remain Supportive of Euthanasia,” Gallup News, June 12, 2017.
4. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
5. JAMA. 2016 Jul 5;316(1):79-90.
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. Myers v. Schneiderman, New York Court of Appeals, 2017.
9. “Legalizing assisted suicide has stalled at every level,” Washington Post, Oct. 24, 2017.
10. H. Con. Res. 80, 115th Congress (2017-2018).
11. AMA Code of Medical Ethics §5.7 (2017).
Question: Choose the best answer regarding physician-assisted suicide in the United States:
A. It is now legal in most states.
B. Under California law, assisting or causing one to commit suicide, including physician-assisted suicide, still remains a felony.
C. Both the U.S. Supreme Court and the New York Court of Appeals have held there is no constitutional right to physician-assisted suicide.
D. The American Medical Association is neutral on the issue.
E. Pain relief is the overriding reason for patients who request physician-assisted suicide.
Answer: C. We reviewed this topic in one of our regular columns in 2013.1 At that time, efforts to legalize physician-assisted suicide (PAS) appeared to be gathering momentum across the country, with four jurisdictions having legalized the practice, beginning with Oregon in 1994. The other states were Washington, Vermont, and Montana, whose Supreme Court held that there was no public interest reason against the practice.2
Since that time, California, Colorado, and the District of Columbia have joined the group. Currently, PAS – but not euthanasia – is legally available in these jurisdictions and in Switzerland, but both can be legally practiced in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.
All state statutes permitting PAS provide similar provisions and safeguards. Only competent individuals who are terminally ill, i.e., 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.
Public support for euthanasia and PAS in the United States is said to have plateaued since the 1990s. But a significant number of Americans, 67%, still favor PAS, up from 56% a decade ago.3 However, not many patients resort to PAS – usually those with terminal cancers or neuromuscular conditions – and 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.4 In Oregon and Washington State, less than 1% of licensed physicians write prescriptions for physician-assisted suicide each year. In contrast, about half or more of physicians in the Netherlands and Belgium reported ever having received a request, and 60% of Dutch physicians have granted such requests.
The California Department of Public Health reported that 111 terminally ill patients availed themselves of California’s End of Life Option Act in the 7 months after it became effective on June 9, 2016.
In a recent review on euthanasia and PAS for the period 1947-2016, Ezekiel Emanuel, MD, and colleagues noted that typical patients were older, white, and well educated, and pain was mostly not reported as the primary motivation.5 A large portion of patients receiving PAS in Oregon and Washington were enrolled in hospice or palliative care. Abuses have not been apparent.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including PAS, still remains a crime; for example, it is considered manslaughter under Hawaii state law §707-702.
In distinguishing between assisting suicide and withdrawing life-sustaining treatment, the U.S. Supreme Court’s landmark 1997 Vacco v. Quill decision emphasized issues of causation and intent.6 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. Glucksberg, 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.7
State supreme courts in Florida, New Mexico, and elsewhere have likewise rebuffed claims of any constitutional right to PAS. The latest court to so rule is in New York, which has a long history of criminalizing assisted suicide.8 The New York Court of Appeals recently addressed claims brought by three terminally ill individuals, several medical providers, and a nonprofit entity seeking a declaration that New York’s “assisted suicide” statutes exclude physicians from prescribing a lethal dose of drugs to terminally ill, competent patients.
The court unequivocally rejected such claims and affirmed that a physician who assists a suicide by prescribing lethal doses of drugs is subject to criminal prosecution for second-degree manslaughter. It refused to regard PAS as being different from assisted suicide in general, and it rejected the constitutional claim to assisted suicide by a terminally ill person. The state appeals court reiterated the U.S. Supreme Court’s distinction between refusing life-sustaining treatment and assisted suicide, the former being “at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions.” The New York Court of Appeals also noted that the state has a legitimate purpose and a rational basis for guarding against the risks of mistake and abuse.
These developments may signal a shift away from the legalization of PAS, as recently suggested in a Washington Post article.9 According to the end-of-life advocacy organization Compassion and Choices, none of the 27 states where such measures were introduced in 2017 passed them into law, including states such as Connecticut, Hawaii, and Rhode Island. In Central and Eastern Europe, support is decreasing, whereas the opposite is true in Western Europe.
U.S. federal lawmakers also appear to be pushing back. On July 13, 2017, the U.S. House Committee on Appropriations voted to block implementation of a “death with dignity” statute passed by the District of Columbia. Further, 11 House members – including 6 Democrats – have introduced a resolution asserting that PAS undermines a key safeguard that protects our nation’s most vulnerable citizens, including the elderly, people with disabilities, and people experiencing psychiatric diagnoses.10
The American Medical Association is steadfast in its opposition to PAS and euthanasia. In its latest Code of Ethics, the AMA reaffirmed its long-held position that “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.”11
References
1. “Physician-assisted suicide,” Internal Medicine News, Oct. 14, 2013.
2. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
3. “Majority of Americans Remain Supportive of Euthanasia,” Gallup News, June 12, 2017.
4. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
5. JAMA. 2016 Jul 5;316(1):79-90.
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. Myers v. Schneiderman, New York Court of Appeals, 2017.
9. “Legalizing assisted suicide has stalled at every level,” Washington Post, Oct. 24, 2017.
10. H. Con. Res. 80, 115th Congress (2017-2018).
11. AMA Code of Medical Ethics §5.7 (2017).
Question: Choose the best answer regarding physician-assisted suicide in the United States:
A. It is now legal in most states.
B. Under California law, assisting or causing one to commit suicide, including physician-assisted suicide, still remains a felony.
C. Both the U.S. Supreme Court and the New York Court of Appeals have held there is no constitutional right to physician-assisted suicide.
D. The American Medical Association is neutral on the issue.
E. Pain relief is the overriding reason for patients who request physician-assisted suicide.
Answer: C. We reviewed this topic in one of our regular columns in 2013.1 At that time, efforts to legalize physician-assisted suicide (PAS) appeared to be gathering momentum across the country, with four jurisdictions having legalized the practice, beginning with Oregon in 1994. The other states were Washington, Vermont, and Montana, whose Supreme Court held that there was no public interest reason against the practice.2
Since that time, California, Colorado, and the District of Columbia have joined the group. Currently, PAS – but not euthanasia – is legally available in these jurisdictions and in Switzerland, but both can be legally practiced in Belgium, Canada, Colombia, Luxembourg, and the Netherlands.
All state statutes permitting PAS provide similar provisions and safeguards. Only competent individuals who are terminally ill, i.e., 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.
Public support for euthanasia and PAS in the United States is said to have plateaued since the 1990s. But a significant number of Americans, 67%, still favor PAS, up from 56% a decade ago.3 However, not many patients resort to PAS – usually those with terminal cancers or neuromuscular conditions – and 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.4 In Oregon and Washington State, less than 1% of licensed physicians write prescriptions for physician-assisted suicide each year. In contrast, about half or more of physicians in the Netherlands and Belgium reported ever having received a request, and 60% of Dutch physicians have granted such requests.
The California Department of Public Health reported that 111 terminally ill patients availed themselves of California’s End of Life Option Act in the 7 months after it became effective on June 9, 2016.
In a recent review on euthanasia and PAS for the period 1947-2016, Ezekiel Emanuel, MD, and colleagues noted that typical patients were older, white, and well educated, and pain was mostly not reported as the primary motivation.5 A large portion of patients receiving PAS in Oregon and Washington were enrolled in hospice or palliative care. Abuses have not been apparent.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including PAS, still remains a crime; for example, it is considered manslaughter under Hawaii state law §707-702.
In distinguishing between assisting suicide and withdrawing life-sustaining treatment, the U.S. Supreme Court’s landmark 1997 Vacco v. Quill decision emphasized issues of causation and intent.6 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. Glucksberg, 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.7
State supreme courts in Florida, New Mexico, and elsewhere have likewise rebuffed claims of any constitutional right to PAS. The latest court to so rule is in New York, which has a long history of criminalizing assisted suicide.8 The New York Court of Appeals recently addressed claims brought by three terminally ill individuals, several medical providers, and a nonprofit entity seeking a declaration that New York’s “assisted suicide” statutes exclude physicians from prescribing a lethal dose of drugs to terminally ill, competent patients.
The court unequivocally rejected such claims and affirmed that a physician who assists a suicide by prescribing lethal doses of drugs is subject to criminal prosecution for second-degree manslaughter. It refused to regard PAS as being different from assisted suicide in general, and it rejected the constitutional claim to assisted suicide by a terminally ill person. The state appeals court reiterated the U.S. Supreme Court’s distinction between refusing life-sustaining treatment and assisted suicide, the former being “at least partially rooted in notions of bodily integrity, as the right to refuse treatment is a consequence of a person’s right to resist unwanted bodily invasions.” The New York Court of Appeals also noted that the state has a legitimate purpose and a rational basis for guarding against the risks of mistake and abuse.
These developments may signal a shift away from the legalization of PAS, as recently suggested in a Washington Post article.9 According to the end-of-life advocacy organization Compassion and Choices, none of the 27 states where such measures were introduced in 2017 passed them into law, including states such as Connecticut, Hawaii, and Rhode Island. In Central and Eastern Europe, support is decreasing, whereas the opposite is true in Western Europe.
U.S. federal lawmakers also appear to be pushing back. On July 13, 2017, the U.S. House Committee on Appropriations voted to block implementation of a “death with dignity” statute passed by the District of Columbia. Further, 11 House members – including 6 Democrats – have introduced a resolution asserting that PAS undermines a key safeguard that protects our nation’s most vulnerable citizens, including the elderly, people with disabilities, and people experiencing psychiatric diagnoses.10
The American Medical Association is steadfast in its opposition to PAS and euthanasia. In its latest Code of Ethics, the AMA reaffirmed its long-held position that “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.”11
References
1. “Physician-assisted suicide,” Internal Medicine News, Oct. 14, 2013.
2. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
3. “Majority of Americans Remain Supportive of Euthanasia,” Gallup News, June 12, 2017.
4. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
5. JAMA. 2016 Jul 5;316(1):79-90.
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. Myers v. Schneiderman, New York Court of Appeals, 2017.
9. “Legalizing assisted suicide has stalled at every level,” Washington Post, Oct. 24, 2017.
10. H. Con. Res. 80, 115th Congress (2017-2018).
11. AMA Code of Medical Ethics §5.7 (2017).
Failure to diagnose is a continuing challenge
Question: A middle-aged woman developed cellulitis after sustaining multiple mosquito bites in her lower left leg. The area of infection did not appear to reach the knee, which housed a prosthesis implanted there 3 years earlier. Over the next few days, she had significant knee pain, which was attributed to the surrounding cellulitis. Her pulse rate reached 105 beats per min, and her temperature was 101° F, but she was continued on oral antibiotics as an outpatient. Later that evening, she collapsed at home.
Which of the following is best?
A. Fever and tachycardia alone are enough to make the diagnosis of systemic inflammatory response syndrome (SIRS) and should have raised sepsis as a cause.
B. In septic patients, even a short delay in antibiotic administration can significantly affect morbidity and mortality.
C. Failure to diagnose is the most common basis for a medical malpractice claim.
D. The doctor may have anchored his diagnosis on the mosquito-bite incident, and should have considered a septic joint and/or sepsis in the differential.
E. All are correct.
Answer: E. “Failure to diagnose” is a legal term, whereas in medical usage we tend to use terms such “missed diagnosis,” “overlooked condition,” or “diagnostic error.” If such failure is shown to be a breach of the standard of care and is proven to be a proximate cause of the patient’s injury, then a case for medical negligence is made out. Even if the situation is atypical or complex, there still is the duty to refer, if customarily required, to an appropriate specialist, and failure to do so may also constitute negligence.
Diagnostic errors tend to cause the most severe injuries, especially in hospitalized patients. 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.
Failure to diagnose occurs in both outpatient and in-hospital settings, recurring examples being myocardial infarction, dissecting aneurysm, pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a records-review study covering a large urban Veterans Affairs facility and an integrated private health care system in a primary care setting, the authors reported that pneumonia, heart failure, acute renal failure, cancer, and urinary tract infections (UTIs) were frequently missed diagnoses.2 They identified 190 diagnostic errors over a 12-month period in 2006-2007, and they attributed them to “process breakdowns” involving the practitioner-patient clinical encounter, referrals, patient factors, follow-up and tracking of diagnostic information, and interpretation of test results. Deficiencies in bedside history taking, physical exam, and test ordering were common; significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Malpractice carriers regularly compile data regarding the nature of their covered losses, and their reports on diagnostic errors, although not subject to the usual scientific peer review, have generally corroborated the published literature.
For example, data from 2009 to 2013 collected by MIEC, a large malpractice mutual insurance company on the West Coast, impute almost half of all general medicine claims to diagnostic errors.3 The cases, frequently involving cancer and heart disease, resulted in high-severity injuries and death. Lapses in clinical judgment, communication, and patient-related behavior issues were the primary contributing factors that affected the diagnosis-related claims. Pitfalls included errors in patient assessment, diagnostic processing, provider follow-up, and referral to specialists.
Recent reports have drawn attention to sepsis, an example of SIRS, as an important missed diagnosis, often with deadly consequences. It has been pointed out that if a sepsis case goes to trial, jurors will immediately learn that mortality rates are increased if antibiotics are delayed, even for a short period. In one study, each hour’s delay increased mortality by 7.6%, mortality being 21.1% if antibiotics were given in the first hour, compared with 58% if delayed by more than 6 hours.4
To avoid suits, physicians should be alert to seemingly minor vital sign changes, such as new tachypnea or tachycardia. Notably, patients can have severe sepsis and septic shock without fever or hypothermia. Uncomplicated sepsis is common and can quickly progress to severe sepsis, with organ failure and septic shock. The Surviving Sepsis Campaign has estimated that more than 750,000 individuals develop severe sepsis in North America each year, with mortality around 50%.
The Sullivan Group,which comprises a team of professionals dedicated to perfecting a system solution that reduces medical error and improves patient safety, recently published a wrongful-death narrative from undiagnosed sepsis.5 The decedent gave birth to her first child after 24 hours of labor, sustaining severe vaginal and rectal tearing. Three days later, she began experiencing chills, nausea, worsening vaginal pain, and fever. Her temperature reached 101.9° F (38.8° C). The following day, 4 days after delivery, she was seen by a nurse practitioner in the emergency department with symptoms of nausea, abdominal and back pain, and fever. She was tachycardic at 115 per minute.
The presence of fever plus tachycardia should have raised the diagnosis of SIRS, especially in view of her abdominal pain and a recent complicated delivery. Instead, the practitioner diagnosed a UTI and discharged her on antibiotics. That same afternoon, she collapsed and was admitted for sepsis. Despite an emergency hysterectomy, her condition worsened, she developed multiple organ failure and septic shock, and died the next day. The source of her sepsis was endometritis, and the jury returned a $20 million verdict for the plaintiff.
Observers of medical errors point to our recurring failure to continue to consider alternatives after forming an initial tentative diagnosis, and warn us about the various cognitive biases familiar to behavioral economists but ignored by many doctors.6 These include anchoring bias, in which one is locked into an aspect of the case; framing bias, in which there is misdirection because of the way the problem was posed; availability bias, in which things are judged by what comes readily to mind, such as a recent experience; and confirmation bias, in which one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary.
In the case outlined earlier, the Sullivan Group noted that the practitioner did not consider sepsis because of cognitive bias, anchoring, and premature closure. The trial documents indicated that the urinalysis did not show bacteria, but the practitioner may have settled – prematurely – on the UTI diagnosis, based on the presence of WBCs in the urine and her obstetrics history. Having anchored on that thought process and prematurely closed her decision making, the practitioner then ignored the elevated white blood cell count with a left shift, and a depressed platelet count of 50,000. Perhaps UTI was a reasonable consideration in the differential, but the working diagnosis of sepsis should have been first and foremost.
Dr. Tan is emeritus professor of medicine and a 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. Some of the materials may have been published in earlier columns in Internal Medicine News, and can be accessed at www.mdedge.com/taxonomy/term/83/path_term/21/latest. For additional information, readers may contact the author at [email protected].
References
1. BMJ Qual Saf. 2013 Aug;22(8):672-80.
2. JAMA Intern Med. 2013 Mar 25;173(6):418-25.
3. MIEC, the Exchange, Issue 8, March 2017.
4. Crit Care Med. 2006 Jun;34(6):1589-96.
5. The Sullivan Group. Case: Avoiding cognitive bias in diagnosing sepsis.
6. Acad Med. 2003 Aug;78(8):775-80.
Question: A middle-aged woman developed cellulitis after sustaining multiple mosquito bites in her lower left leg. The area of infection did not appear to reach the knee, which housed a prosthesis implanted there 3 years earlier. Over the next few days, she had significant knee pain, which was attributed to the surrounding cellulitis. Her pulse rate reached 105 beats per min, and her temperature was 101° F, but she was continued on oral antibiotics as an outpatient. Later that evening, she collapsed at home.
Which of the following is best?
A. Fever and tachycardia alone are enough to make the diagnosis of systemic inflammatory response syndrome (SIRS) and should have raised sepsis as a cause.
B. In septic patients, even a short delay in antibiotic administration can significantly affect morbidity and mortality.
C. Failure to diagnose is the most common basis for a medical malpractice claim.
D. The doctor may have anchored his diagnosis on the mosquito-bite incident, and should have considered a septic joint and/or sepsis in the differential.
E. All are correct.
Answer: E. “Failure to diagnose” is a legal term, whereas in medical usage we tend to use terms such “missed diagnosis,” “overlooked condition,” or “diagnostic error.” If such failure is shown to be a breach of the standard of care and is proven to be a proximate cause of the patient’s injury, then a case for medical negligence is made out. Even if the situation is atypical or complex, there still is the duty to refer, if customarily required, to an appropriate specialist, and failure to do so may also constitute negligence.
Diagnostic errors tend to cause the most severe injuries, especially in hospitalized patients. 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.
Failure to diagnose occurs in both outpatient and in-hospital settings, recurring examples being myocardial infarction, dissecting aneurysm, pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a records-review study covering a large urban Veterans Affairs facility and an integrated private health care system in a primary care setting, the authors reported that pneumonia, heart failure, acute renal failure, cancer, and urinary tract infections (UTIs) were frequently missed diagnoses.2 They identified 190 diagnostic errors over a 12-month period in 2006-2007, and they attributed them to “process breakdowns” involving the practitioner-patient clinical encounter, referrals, patient factors, follow-up and tracking of diagnostic information, and interpretation of test results. Deficiencies in bedside history taking, physical exam, and test ordering were common; significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Malpractice carriers regularly compile data regarding the nature of their covered losses, and their reports on diagnostic errors, although not subject to the usual scientific peer review, have generally corroborated the published literature.
For example, data from 2009 to 2013 collected by MIEC, a large malpractice mutual insurance company on the West Coast, impute almost half of all general medicine claims to diagnostic errors.3 The cases, frequently involving cancer and heart disease, resulted in high-severity injuries and death. Lapses in clinical judgment, communication, and patient-related behavior issues were the primary contributing factors that affected the diagnosis-related claims. Pitfalls included errors in patient assessment, diagnostic processing, provider follow-up, and referral to specialists.
Recent reports have drawn attention to sepsis, an example of SIRS, as an important missed diagnosis, often with deadly consequences. It has been pointed out that if a sepsis case goes to trial, jurors will immediately learn that mortality rates are increased if antibiotics are delayed, even for a short period. In one study, each hour’s delay increased mortality by 7.6%, mortality being 21.1% if antibiotics were given in the first hour, compared with 58% if delayed by more than 6 hours.4
To avoid suits, physicians should be alert to seemingly minor vital sign changes, such as new tachypnea or tachycardia. Notably, patients can have severe sepsis and septic shock without fever or hypothermia. Uncomplicated sepsis is common and can quickly progress to severe sepsis, with organ failure and septic shock. The Surviving Sepsis Campaign has estimated that more than 750,000 individuals develop severe sepsis in North America each year, with mortality around 50%.
The Sullivan Group,which comprises a team of professionals dedicated to perfecting a system solution that reduces medical error and improves patient safety, recently published a wrongful-death narrative from undiagnosed sepsis.5 The decedent gave birth to her first child after 24 hours of labor, sustaining severe vaginal and rectal tearing. Three days later, she began experiencing chills, nausea, worsening vaginal pain, and fever. Her temperature reached 101.9° F (38.8° C). The following day, 4 days after delivery, she was seen by a nurse practitioner in the emergency department with symptoms of nausea, abdominal and back pain, and fever. She was tachycardic at 115 per minute.
The presence of fever plus tachycardia should have raised the diagnosis of SIRS, especially in view of her abdominal pain and a recent complicated delivery. Instead, the practitioner diagnosed a UTI and discharged her on antibiotics. That same afternoon, she collapsed and was admitted for sepsis. Despite an emergency hysterectomy, her condition worsened, she developed multiple organ failure and septic shock, and died the next day. The source of her sepsis was endometritis, and the jury returned a $20 million verdict for the plaintiff.
Observers of medical errors point to our recurring failure to continue to consider alternatives after forming an initial tentative diagnosis, and warn us about the various cognitive biases familiar to behavioral economists but ignored by many doctors.6 These include anchoring bias, in which one is locked into an aspect of the case; framing bias, in which there is misdirection because of the way the problem was posed; availability bias, in which things are judged by what comes readily to mind, such as a recent experience; and confirmation bias, in which one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary.
In the case outlined earlier, the Sullivan Group noted that the practitioner did not consider sepsis because of cognitive bias, anchoring, and premature closure. The trial documents indicated that the urinalysis did not show bacteria, but the practitioner may have settled – prematurely – on the UTI diagnosis, based on the presence of WBCs in the urine and her obstetrics history. Having anchored on that thought process and prematurely closed her decision making, the practitioner then ignored the elevated white blood cell count with a left shift, and a depressed platelet count of 50,000. Perhaps UTI was a reasonable consideration in the differential, but the working diagnosis of sepsis should have been first and foremost.
Dr. Tan is emeritus professor of medicine and a 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. Some of the materials may have been published in earlier columns in Internal Medicine News, and can be accessed at www.mdedge.com/taxonomy/term/83/path_term/21/latest. For additional information, readers may contact the author at [email protected].
References
1. BMJ Qual Saf. 2013 Aug;22(8):672-80.
2. JAMA Intern Med. 2013 Mar 25;173(6):418-25.
3. MIEC, the Exchange, Issue 8, March 2017.
4. Crit Care Med. 2006 Jun;34(6):1589-96.
5. The Sullivan Group. Case: Avoiding cognitive bias in diagnosing sepsis.
6. Acad Med. 2003 Aug;78(8):775-80.
Question: A middle-aged woman developed cellulitis after sustaining multiple mosquito bites in her lower left leg. The area of infection did not appear to reach the knee, which housed a prosthesis implanted there 3 years earlier. Over the next few days, she had significant knee pain, which was attributed to the surrounding cellulitis. Her pulse rate reached 105 beats per min, and her temperature was 101° F, but she was continued on oral antibiotics as an outpatient. Later that evening, she collapsed at home.
Which of the following is best?
A. Fever and tachycardia alone are enough to make the diagnosis of systemic inflammatory response syndrome (SIRS) and should have raised sepsis as a cause.
B. In septic patients, even a short delay in antibiotic administration can significantly affect morbidity and mortality.
C. Failure to diagnose is the most common basis for a medical malpractice claim.
D. The doctor may have anchored his diagnosis on the mosquito-bite incident, and should have considered a septic joint and/or sepsis in the differential.
E. All are correct.
Answer: E. “Failure to diagnose” is a legal term, whereas in medical usage we tend to use terms such “missed diagnosis,” “overlooked condition,” or “diagnostic error.” If such failure is shown to be a breach of the standard of care and is proven to be a proximate cause of the patient’s injury, then a case for medical negligence is made out. Even if the situation is atypical or complex, there still is the duty to refer, if customarily required, to an appropriate specialist, and failure to do so may also constitute negligence.
Diagnostic errors tend to cause the most severe injuries, especially in hospitalized patients. 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.
Failure to diagnose occurs in both outpatient and in-hospital settings, recurring examples being myocardial infarction, dissecting aneurysm, pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a records-review study covering a large urban Veterans Affairs facility and an integrated private health care system in a primary care setting, the authors reported that pneumonia, heart failure, acute renal failure, cancer, and urinary tract infections (UTIs) were frequently missed diagnoses.2 They identified 190 diagnostic errors over a 12-month period in 2006-2007, and they attributed them to “process breakdowns” involving the practitioner-patient clinical encounter, referrals, patient factors, follow-up and tracking of diagnostic information, and interpretation of test results. Deficiencies in bedside history taking, physical exam, and test ordering were common; significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Malpractice carriers regularly compile data regarding the nature of their covered losses, and their reports on diagnostic errors, although not subject to the usual scientific peer review, have generally corroborated the published literature.
For example, data from 2009 to 2013 collected by MIEC, a large malpractice mutual insurance company on the West Coast, impute almost half of all general medicine claims to diagnostic errors.3 The cases, frequently involving cancer and heart disease, resulted in high-severity injuries and death. Lapses in clinical judgment, communication, and patient-related behavior issues were the primary contributing factors that affected the diagnosis-related claims. Pitfalls included errors in patient assessment, diagnostic processing, provider follow-up, and referral to specialists.
Recent reports have drawn attention to sepsis, an example of SIRS, as an important missed diagnosis, often with deadly consequences. It has been pointed out that if a sepsis case goes to trial, jurors will immediately learn that mortality rates are increased if antibiotics are delayed, even for a short period. In one study, each hour’s delay increased mortality by 7.6%, mortality being 21.1% if antibiotics were given in the first hour, compared with 58% if delayed by more than 6 hours.4
To avoid suits, physicians should be alert to seemingly minor vital sign changes, such as new tachypnea or tachycardia. Notably, patients can have severe sepsis and septic shock without fever or hypothermia. Uncomplicated sepsis is common and can quickly progress to severe sepsis, with organ failure and septic shock. The Surviving Sepsis Campaign has estimated that more than 750,000 individuals develop severe sepsis in North America each year, with mortality around 50%.
The Sullivan Group,which comprises a team of professionals dedicated to perfecting a system solution that reduces medical error and improves patient safety, recently published a wrongful-death narrative from undiagnosed sepsis.5 The decedent gave birth to her first child after 24 hours of labor, sustaining severe vaginal and rectal tearing. Three days later, she began experiencing chills, nausea, worsening vaginal pain, and fever. Her temperature reached 101.9° F (38.8° C). The following day, 4 days after delivery, she was seen by a nurse practitioner in the emergency department with symptoms of nausea, abdominal and back pain, and fever. She was tachycardic at 115 per minute.
The presence of fever plus tachycardia should have raised the diagnosis of SIRS, especially in view of her abdominal pain and a recent complicated delivery. Instead, the practitioner diagnosed a UTI and discharged her on antibiotics. That same afternoon, she collapsed and was admitted for sepsis. Despite an emergency hysterectomy, her condition worsened, she developed multiple organ failure and septic shock, and died the next day. The source of her sepsis was endometritis, and the jury returned a $20 million verdict for the plaintiff.
Observers of medical errors point to our recurring failure to continue to consider alternatives after forming an initial tentative diagnosis, and warn us about the various cognitive biases familiar to behavioral economists but ignored by many doctors.6 These include anchoring bias, in which one is locked into an aspect of the case; framing bias, in which there is misdirection because of the way the problem was posed; availability bias, in which things are judged by what comes readily to mind, such as a recent experience; and confirmation bias, in which one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary.
In the case outlined earlier, the Sullivan Group noted that the practitioner did not consider sepsis because of cognitive bias, anchoring, and premature closure. The trial documents indicated that the urinalysis did not show bacteria, but the practitioner may have settled – prematurely – on the UTI diagnosis, based on the presence of WBCs in the urine and her obstetrics history. Having anchored on that thought process and prematurely closed her decision making, the practitioner then ignored the elevated white blood cell count with a left shift, and a depressed platelet count of 50,000. Perhaps UTI was a reasonable consideration in the differential, but the working diagnosis of sepsis should have been first and foremost.
Dr. Tan is emeritus professor of medicine and a 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. Some of the materials may have been published in earlier columns in Internal Medicine News, and can be accessed at www.mdedge.com/taxonomy/term/83/path_term/21/latest. For additional information, readers may contact the author at [email protected].
References
1. BMJ Qual Saf. 2013 Aug;22(8):672-80.
2. JAMA Intern Med. 2013 Mar 25;173(6):418-25.
3. MIEC, the Exchange, Issue 8, March 2017.
4. Crit Care Med. 2006 Jun;34(6):1589-96.
5. The Sullivan Group. Case: Avoiding cognitive bias in diagnosing sepsis.
6. Acad Med. 2003 Aug;78(8):775-80.
Duty vs. confidentiality
Question: During an office visit, a patient confided in his primary care provider his intention to go on a shooting spree. When pressed, he admitted he owned a firearm, but did not truly intend to carry out the act. He denied having a specific target location or victim in mind. The primary care provider (PCP) opted to counsel the patient, and continued him on his antidepressant medication. The PCP did not make a referral to a psychiatrist. Several weeks later, the patient put his threat into action, shooting and injuring several innocent shoppers at a mall.
In a lawsuit against the PCP, which of the following is best?
A. It is unethical for the PCP to report this threat, because it violates the principle of confidentiality.
B. Failure to warn under the circumstances definitely makes the physician liable.
C. The PCP is liable under the Tarasoff doctrine.
D. Without a named victim, there is no one to warn.
E. Whether the PCP is liable may turn on the issue of foreseeability, and an immediate referral to a psychiatrist would have been a more prudent course of action.
Answer: E. One of the physician’s sacred promises is to maintain patient confidentiality. It is more than an unspoken contractual agreement; it’s a central component of trust, without which the doctor-patient relationship cannot exist. Indeed, Hippocrates had cautioned, “whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”
Thus, the recent expansive decision handed down by the Washington state Supreme Court stunned many mental health professionals.1 In Volk v. DeMeerleer, a clinic patient had confided in his psychiatrist over 9 years of therapy his suicidal and homicidal ideations. He eventually went on to kill his former girlfriend and one of her sons, and then committed suicide. The psychiatrist did not have full control of this clinic patient, nor had the patient named a specific victim. Nevertheless, the Volk court held that the doctor’s duty extended to any foreseeable harm by the patient, leaving it up to the jury to decide on the issue of foreseeability.
The court held that the psychiatrist had a “special relationship” with the victims, because he had a duty to exercise reasonable care to act, consistent with the standards of the mental health profession, in order to protect the foreseeable victims.
The court reasoned that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist, writing: “We find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.” The court also noted that a psychiatrist’s obligation to protect third parties against patients’ violence would normally set aside confidentiality and yield to greater societal interests.
The vexing issue of compromising confidentiality in the name of protecting public safety had its genesis in the famous Tarasoff v. Regents of University of California case.2
In Tarasoff, the California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, whom the patient stabbed to death 2 months later.
The court reasoned that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship, pointing out: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”
Following Tarasoff, it is generally accepted that there is no affirmative duty to warn where there is no readily identifiable victim. In a subsequent case, the same court explained that “the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim. In those instances in which the released offender poses a predictable threat of harm to a named or readily identifiable victim or group of victims who can be effectively warned of the danger, a releasing agent may well be liable for failure to warn such persons. Despite the tragic events underlying the present complaint, plaintiffs’ decedent was not a known, identifiable victim, but rather a member of a large, amorphous public group of potential targets. Under these circumstances, we hold that County had no affirmative duty to warn plaintiffs, the police, the mother of the juvenile offender, or other local parents.”3
Commentators have suggested that such post-Tarasoff cases, coupled with the advent of state statutes that codify Tarasoff, have witnessed a retreat from imposing on clinicians a duty to warn.4 By dispensing with the control and “readily identifiable victim” elements, Volk appears to contradict this perceived trend. Foreseeability may turn out to be the dispositive issue.
Some have speculated whether Volk’s expanded view will apply to other professionals such as a family practitioner or even a school counselor. Physicians who are not experienced in treating mental health patients will do well to promptly refer their unstable patients to a specialist psychiatrist.
Volk can also be read as offering judicial insight into patients who pose a health hazard by insisting on operating a vehicle against medical advice. In its 2012 Code of Medical Ethics, the American Medical Association had this to say: “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.”5
That is now replaced in the AMA code with a broader version covering the duty to disclose: “Physicians may disclose personal health information without the specific consent of the patient ... to other third parties situated to mitigate the threat when in the physician’s judgment there is a reasonable probability that: (i) the patient will seriously harm him/herself; or (ii) the patient will inflict serious physical harm on an identifiable individual or individuals.”6
Under Volk, physicians are now more likely to forsake confidentiality in the name of public safety – even in the absence of a readily identifiable potential victim.
Dr. Tan is emeritus 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. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at [email protected].
References
1. Volk v. DeMeerleer, 386 P.3d 254 (Wa. 2016).
2. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).
3. Thompson v. County of Alameda, 167 Cal. Rptr. 70, 76 (1980).
4. Behav Sci Law. 2001;19(3):325-43.
5. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed].
6. AMA Code of Medical Ethics, 2017 ed. [3.2.1 Confidentiality].
Question: During an office visit, a patient confided in his primary care provider his intention to go on a shooting spree. When pressed, he admitted he owned a firearm, but did not truly intend to carry out the act. He denied having a specific target location or victim in mind. The primary care provider (PCP) opted to counsel the patient, and continued him on his antidepressant medication. The PCP did not make a referral to a psychiatrist. Several weeks later, the patient put his threat into action, shooting and injuring several innocent shoppers at a mall.
In a lawsuit against the PCP, which of the following is best?
A. It is unethical for the PCP to report this threat, because it violates the principle of confidentiality.
B. Failure to warn under the circumstances definitely makes the physician liable.
C. The PCP is liable under the Tarasoff doctrine.
D. Without a named victim, there is no one to warn.
E. Whether the PCP is liable may turn on the issue of foreseeability, and an immediate referral to a psychiatrist would have been a more prudent course of action.
Answer: E. One of the physician’s sacred promises is to maintain patient confidentiality. It is more than an unspoken contractual agreement; it’s a central component of trust, without which the doctor-patient relationship cannot exist. Indeed, Hippocrates had cautioned, “whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”
Thus, the recent expansive decision handed down by the Washington state Supreme Court stunned many mental health professionals.1 In Volk v. DeMeerleer, a clinic patient had confided in his psychiatrist over 9 years of therapy his suicidal and homicidal ideations. He eventually went on to kill his former girlfriend and one of her sons, and then committed suicide. The psychiatrist did not have full control of this clinic patient, nor had the patient named a specific victim. Nevertheless, the Volk court held that the doctor’s duty extended to any foreseeable harm by the patient, leaving it up to the jury to decide on the issue of foreseeability.
The court held that the psychiatrist had a “special relationship” with the victims, because he had a duty to exercise reasonable care to act, consistent with the standards of the mental health profession, in order to protect the foreseeable victims.
The court reasoned that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist, writing: “We find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.” The court also noted that a psychiatrist’s obligation to protect third parties against patients’ violence would normally set aside confidentiality and yield to greater societal interests.
The vexing issue of compromising confidentiality in the name of protecting public safety had its genesis in the famous Tarasoff v. Regents of University of California case.2
In Tarasoff, the California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, whom the patient stabbed to death 2 months later.
The court reasoned that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship, pointing out: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”
Following Tarasoff, it is generally accepted that there is no affirmative duty to warn where there is no readily identifiable victim. In a subsequent case, the same court explained that “the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim. In those instances in which the released offender poses a predictable threat of harm to a named or readily identifiable victim or group of victims who can be effectively warned of the danger, a releasing agent may well be liable for failure to warn such persons. Despite the tragic events underlying the present complaint, plaintiffs’ decedent was not a known, identifiable victim, but rather a member of a large, amorphous public group of potential targets. Under these circumstances, we hold that County had no affirmative duty to warn plaintiffs, the police, the mother of the juvenile offender, or other local parents.”3
Commentators have suggested that such post-Tarasoff cases, coupled with the advent of state statutes that codify Tarasoff, have witnessed a retreat from imposing on clinicians a duty to warn.4 By dispensing with the control and “readily identifiable victim” elements, Volk appears to contradict this perceived trend. Foreseeability may turn out to be the dispositive issue.
Some have speculated whether Volk’s expanded view will apply to other professionals such as a family practitioner or even a school counselor. Physicians who are not experienced in treating mental health patients will do well to promptly refer their unstable patients to a specialist psychiatrist.
Volk can also be read as offering judicial insight into patients who pose a health hazard by insisting on operating a vehicle against medical advice. In its 2012 Code of Medical Ethics, the American Medical Association had this to say: “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.”5
That is now replaced in the AMA code with a broader version covering the duty to disclose: “Physicians may disclose personal health information without the specific consent of the patient ... to other third parties situated to mitigate the threat when in the physician’s judgment there is a reasonable probability that: (i) the patient will seriously harm him/herself; or (ii) the patient will inflict serious physical harm on an identifiable individual or individuals.”6
Under Volk, physicians are now more likely to forsake confidentiality in the name of public safety – even in the absence of a readily identifiable potential victim.
Dr. Tan is emeritus 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. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at [email protected].
References
1. Volk v. DeMeerleer, 386 P.3d 254 (Wa. 2016).
2. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).
3. Thompson v. County of Alameda, 167 Cal. Rptr. 70, 76 (1980).
4. Behav Sci Law. 2001;19(3):325-43.
5. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed].
6. AMA Code of Medical Ethics, 2017 ed. [3.2.1 Confidentiality].
Question: During an office visit, a patient confided in his primary care provider his intention to go on a shooting spree. When pressed, he admitted he owned a firearm, but did not truly intend to carry out the act. He denied having a specific target location or victim in mind. The primary care provider (PCP) opted to counsel the patient, and continued him on his antidepressant medication. The PCP did not make a referral to a psychiatrist. Several weeks later, the patient put his threat into action, shooting and injuring several innocent shoppers at a mall.
In a lawsuit against the PCP, which of the following is best?
A. It is unethical for the PCP to report this threat, because it violates the principle of confidentiality.
B. Failure to warn under the circumstances definitely makes the physician liable.
C. The PCP is liable under the Tarasoff doctrine.
D. Without a named victim, there is no one to warn.
E. Whether the PCP is liable may turn on the issue of foreseeability, and an immediate referral to a psychiatrist would have been a more prudent course of action.
Answer: E. One of the physician’s sacred promises is to maintain patient confidentiality. It is more than an unspoken contractual agreement; it’s a central component of trust, without which the doctor-patient relationship cannot exist. Indeed, Hippocrates had cautioned, “whatever in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all should be kept secret.”
Thus, the recent expansive decision handed down by the Washington state Supreme Court stunned many mental health professionals.1 In Volk v. DeMeerleer, a clinic patient had confided in his psychiatrist over 9 years of therapy his suicidal and homicidal ideations. He eventually went on to kill his former girlfriend and one of her sons, and then committed suicide. The psychiatrist did not have full control of this clinic patient, nor had the patient named a specific victim. Nevertheless, the Volk court held that the doctor’s duty extended to any foreseeable harm by the patient, leaving it up to the jury to decide on the issue of foreseeability.
The court held that the psychiatrist had a “special relationship” with the victims, because he had a duty to exercise reasonable care to act, consistent with the standards of the mental health profession, in order to protect the foreseeable victims.
The court reasoned that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist, writing: “We find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.” The court also noted that a psychiatrist’s obligation to protect third parties against patients’ violence would normally set aside confidentiality and yield to greater societal interests.
The vexing issue of compromising confidentiality in the name of protecting public safety had its genesis in the famous Tarasoff v. Regents of University of California case.2
In Tarasoff, the California court imposed a legal duty on a college psychologist to warn an intended victim of harm, even though that meant breaching confidentiality in a professional relationship. A jilted patient had confided in the university psychologist his intention to kill his ex-girlfriend. The information, though shared with campus security, was not released to the intended victim, whom the patient stabbed to death 2 months later.
The court reasoned that the protection of public safety was more important than the sanctity of the doctor-patient confidentiality relationship, pointing out: “We recognize the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault. ... In this risk-infested society, we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal.”
Following Tarasoff, it is generally accepted that there is no affirmative duty to warn where there is no readily identifiable victim. In a subsequent case, the same court explained that “the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim. In those instances in which the released offender poses a predictable threat of harm to a named or readily identifiable victim or group of victims who can be effectively warned of the danger, a releasing agent may well be liable for failure to warn such persons. Despite the tragic events underlying the present complaint, plaintiffs’ decedent was not a known, identifiable victim, but rather a member of a large, amorphous public group of potential targets. Under these circumstances, we hold that County had no affirmative duty to warn plaintiffs, the police, the mother of the juvenile offender, or other local parents.”3
Commentators have suggested that such post-Tarasoff cases, coupled with the advent of state statutes that codify Tarasoff, have witnessed a retreat from imposing on clinicians a duty to warn.4 By dispensing with the control and “readily identifiable victim” elements, Volk appears to contradict this perceived trend. Foreseeability may turn out to be the dispositive issue.
Some have speculated whether Volk’s expanded view will apply to other professionals such as a family practitioner or even a school counselor. Physicians who are not experienced in treating mental health patients will do well to promptly refer their unstable patients to a specialist psychiatrist.
Volk can also be read as offering judicial insight into patients who pose a health hazard by insisting on operating a vehicle against medical advice. In its 2012 Code of Medical Ethics, the American Medical Association had this to say: “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.”5
That is now replaced in the AMA code with a broader version covering the duty to disclose: “Physicians may disclose personal health information without the specific consent of the patient ... to other third parties situated to mitigate the threat when in the physician’s judgment there is a reasonable probability that: (i) the patient will seriously harm him/herself; or (ii) the patient will inflict serious physical harm on an identifiable individual or individuals.”6
Under Volk, physicians are now more likely to forsake confidentiality in the name of public safety – even in the absence of a readily identifiable potential victim.
Dr. Tan is emeritus 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. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at [email protected].
References
1. Volk v. DeMeerleer, 386 P.3d 254 (Wa. 2016).
2. Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976).
3. Thompson v. County of Alameda, 167 Cal. Rptr. 70, 76 (1980).
4. Behav Sci Law. 2001;19(3):325-43.
5. AMA Code of Medical Ethics [2.24 (3), 2012-2013 ed].
6. AMA Code of Medical Ethics, 2017 ed. [3.2.1 Confidentiality].
Shinal v. Toms: It’s Now Harder to Get Informed Consent
Question: Which of the following statements regarding Shinal v. Toms, a recent landmark decision on informed consent, is correct?:
A. The case was heard in the Pennsylvania Supreme Court and its decision is binding only in that state.
B. It held that obtaining informed consent is a doctor’s duty that is non-delegable.
C. The decision reversed the lower courts, which had held that the defendant’s qualified assistant could obtain consent.
D. An earlier case heard by the same court had ruled that doctors, not hospitals, owe the legal duty to obtain informed consent.
E. All are correct.
Answer: E.
On Nov. 26, 2007, Megan Shinal and Dr. Steven Toms met for a 20-minute initial consultation to discuss removing a recurrent craniopharyngioma.1 Years earlier, a surgeon had performed a transsphenoidal resection, but was unable to remove all of it. The residual portion of the tumor had increased in size and extended into vital structures of the brain, jeopardizing Mrs. Shinal’s eyesight and her carotid artery, causing headaches, and threatening to impact her pituitary function.
Dr. Toms testified that he reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would regrow. Dr. Toms was unable to recall many of the specifics, but he testified that he advised Mrs. Shinal that total surgical resection offered the highest chance for long-term survival. By the end of the visit, Mrs. Shinal had decided to undergo surgery. However, the type of surgery had not yet been determined.
Shortly thereafter, on Dec. 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant. Mrs. Shinal later testified that she asked the physician assistant about scarring that would likely result from surgery, whether radiation would be necessary, and about the date of surgery. The medical record of this telephone call indicated that Dr. Toms’ physician assistant also answered questions about the craniotomy incision. On Jan. 17, 2008, Mrs. Shinal met with the physician assistant at the Geisinger Medical Center’s neurosurgery clinic. The assistant obtained Mrs. Shinal’s medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.
On Jan. 31, 2008, Mrs. Shinal underwent an open craniotomy for a total resection of the pituitary tumor at Geisinger Medical Center. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury, and partial blindness.
According to the Shinals’ complaint, Dr. Toms failed to explain the risks of surgery to Mrs. Shinal or to offer her the lower-risk surgical alternative of subtotal resection of the benign tumor, followed by radiation. At trial, Mrs. Shinal was unable to recall being informed of the relative risks of the surgery, other than coma and death. She testified that, had she known the alternative approaches to surgery, i.e., total versus subtotal resection, she would have chosen subtotal resection as the safer, less aggressive alternative.
The trial court instructed the jury with regard to Dr. Toms’ duty to obtain informed consent from Mrs. Shinal as follows: “[I]n considering whether [Dr. Toms] provided consent to [Mrs. Shinal], you may consider any relevant information you find was communicated to [Mrs. Shinal] by any qualified person acting as an assistant to [Dr. Toms].”
On April 21, 2014, the jury returned a verdict in favor of Dr. Toms.
The plaintiffs appealed to the Pennsylvania Superior Court, which affirmed the trial court’s judgment. It rejected the Shinals’ argument that the trial court’s informed consent charge, which permitted the jury to consider information provided by Dr. Toms’ physician assistant to Mrs. Shinal, was erroneous and prejudicial. The Superior Court relied upon two of its prior cases to opine that a qualified professional acting under the attending doctor’s supervision may convey information communicated to a patient for purposes of obtaining informed consent.
The trial court initially instructed the jury that, in assessing whether Dr. Toms obtained Mrs. Shinal’s informed consent, it could consider relevant information communicated by “any qualified person acting as an assistant” to Dr. Toms. The defendant doctor argued that while it is the physician’s duty to obtain the patient’s informed consent, the physician is not required to supply all of the information personally. It is the information conveyed, rather than the person conveying it that determines informed consent. Dr. Toms cited several older Pennsylvania Superior Court cases, which permitted a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent.
The plaintiffs then appealed to the Pennsylvania Supreme Court, which led to a reversal. In a 4-3 decision, the court disagreed, citing their ruling in the 2002 case of Valles v. Albert Einstein Medical Center,2 where they held that the duty to obtain informed consent could not be imputed to a hospital. In Valles, the court held that the duty to obtain a patient’s informed consent is a nondelegable duty owed by the physician conducting the surgery or treatment, because obtaining informed consent results directly from the duty of disclosure, which lies solely with the physician, and a hospital therefore cannot be liable for a physician’s failure to obtain informed consent.
Reasoning by extension, the court accordingly ruled that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. It declared: “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician.”
The court also held that “a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives. ... Informed consent is a product of the physician-patient relationship.
"The patient is in the vulnerable position of entrusting his or her care and well being to the physician based upon the physician’s education, training, and expertise," the court added. "It is incumbent upon the physician to cultivate a relationship with the patient and to familiarize himself or herself with the patient’s understanding and expectations. Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.”
The facts of the case appear straightforward, and its legal conclusion clear. Whether one agrees with the court’s decision is, however, another matter. The American Medical Association and the Pennsylvania Medical Society (PAMED) had submitted an amicus brief supporting Dr. Toms’ position, arguing that he had fulfilled his obligations under Pennsylvania’s Medical Care Availability and Reduction of Error Act, as well as common law established in previous Pennsylvania court rulings. The final appellate decision therefore came as a big disappointment. The PAMED website notes that the decision “could have significant ramifications for Pennsylvania physicians” in that they can “seemingly no longer rely on the aid of their qualified staff in the informed consent process.”3
The urgent question now is whether other jurisdictions will adopt this Pennsylvania rule that drastically changes the way doctors obtain informed consent from their patients.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. Shinal v. Toms, J-106-2016, Supreme Court of Pennsylvania, Decided: June 20, 2017.
2. Valles v. Albert Einstein Medical Center, 805 A.2d (PA, 2002).
3. Informed-consent ruling may have “far-reaching, negative impact.” AMA Wire, Aug 8, 2017.
Question: Which of the following statements regarding Shinal v. Toms, a recent landmark decision on informed consent, is correct?:
A. The case was heard in the Pennsylvania Supreme Court and its decision is binding only in that state.
B. It held that obtaining informed consent is a doctor’s duty that is non-delegable.
C. The decision reversed the lower courts, which had held that the defendant’s qualified assistant could obtain consent.
D. An earlier case heard by the same court had ruled that doctors, not hospitals, owe the legal duty to obtain informed consent.
E. All are correct.
Answer: E.
On Nov. 26, 2007, Megan Shinal and Dr. Steven Toms met for a 20-minute initial consultation to discuss removing a recurrent craniopharyngioma.1 Years earlier, a surgeon had performed a transsphenoidal resection, but was unable to remove all of it. The residual portion of the tumor had increased in size and extended into vital structures of the brain, jeopardizing Mrs. Shinal’s eyesight and her carotid artery, causing headaches, and threatening to impact her pituitary function.
Dr. Toms testified that he reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would regrow. Dr. Toms was unable to recall many of the specifics, but he testified that he advised Mrs. Shinal that total surgical resection offered the highest chance for long-term survival. By the end of the visit, Mrs. Shinal had decided to undergo surgery. However, the type of surgery had not yet been determined.
Shortly thereafter, on Dec. 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant. Mrs. Shinal later testified that she asked the physician assistant about scarring that would likely result from surgery, whether radiation would be necessary, and about the date of surgery. The medical record of this telephone call indicated that Dr. Toms’ physician assistant also answered questions about the craniotomy incision. On Jan. 17, 2008, Mrs. Shinal met with the physician assistant at the Geisinger Medical Center’s neurosurgery clinic. The assistant obtained Mrs. Shinal’s medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.
On Jan. 31, 2008, Mrs. Shinal underwent an open craniotomy for a total resection of the pituitary tumor at Geisinger Medical Center. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury, and partial blindness.
According to the Shinals’ complaint, Dr. Toms failed to explain the risks of surgery to Mrs. Shinal or to offer her the lower-risk surgical alternative of subtotal resection of the benign tumor, followed by radiation. At trial, Mrs. Shinal was unable to recall being informed of the relative risks of the surgery, other than coma and death. She testified that, had she known the alternative approaches to surgery, i.e., total versus subtotal resection, she would have chosen subtotal resection as the safer, less aggressive alternative.
The trial court instructed the jury with regard to Dr. Toms’ duty to obtain informed consent from Mrs. Shinal as follows: “[I]n considering whether [Dr. Toms] provided consent to [Mrs. Shinal], you may consider any relevant information you find was communicated to [Mrs. Shinal] by any qualified person acting as an assistant to [Dr. Toms].”
On April 21, 2014, the jury returned a verdict in favor of Dr. Toms.
The plaintiffs appealed to the Pennsylvania Superior Court, which affirmed the trial court’s judgment. It rejected the Shinals’ argument that the trial court’s informed consent charge, which permitted the jury to consider information provided by Dr. Toms’ physician assistant to Mrs. Shinal, was erroneous and prejudicial. The Superior Court relied upon two of its prior cases to opine that a qualified professional acting under the attending doctor’s supervision may convey information communicated to a patient for purposes of obtaining informed consent.
The trial court initially instructed the jury that, in assessing whether Dr. Toms obtained Mrs. Shinal’s informed consent, it could consider relevant information communicated by “any qualified person acting as an assistant” to Dr. Toms. The defendant doctor argued that while it is the physician’s duty to obtain the patient’s informed consent, the physician is not required to supply all of the information personally. It is the information conveyed, rather than the person conveying it that determines informed consent. Dr. Toms cited several older Pennsylvania Superior Court cases, which permitted a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent.
The plaintiffs then appealed to the Pennsylvania Supreme Court, which led to a reversal. In a 4-3 decision, the court disagreed, citing their ruling in the 2002 case of Valles v. Albert Einstein Medical Center,2 where they held that the duty to obtain informed consent could not be imputed to a hospital. In Valles, the court held that the duty to obtain a patient’s informed consent is a nondelegable duty owed by the physician conducting the surgery or treatment, because obtaining informed consent results directly from the duty of disclosure, which lies solely with the physician, and a hospital therefore cannot be liable for a physician’s failure to obtain informed consent.
Reasoning by extension, the court accordingly ruled that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. It declared: “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician.”
The court also held that “a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives. ... Informed consent is a product of the physician-patient relationship.
"The patient is in the vulnerable position of entrusting his or her care and well being to the physician based upon the physician’s education, training, and expertise," the court added. "It is incumbent upon the physician to cultivate a relationship with the patient and to familiarize himself or herself with the patient’s understanding and expectations. Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.”
The facts of the case appear straightforward, and its legal conclusion clear. Whether one agrees with the court’s decision is, however, another matter. The American Medical Association and the Pennsylvania Medical Society (PAMED) had submitted an amicus brief supporting Dr. Toms’ position, arguing that he had fulfilled his obligations under Pennsylvania’s Medical Care Availability and Reduction of Error Act, as well as common law established in previous Pennsylvania court rulings. The final appellate decision therefore came as a big disappointment. The PAMED website notes that the decision “could have significant ramifications for Pennsylvania physicians” in that they can “seemingly no longer rely on the aid of their qualified staff in the informed consent process.”3
The urgent question now is whether other jurisdictions will adopt this Pennsylvania rule that drastically changes the way doctors obtain informed consent from their patients.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. Shinal v. Toms, J-106-2016, Supreme Court of Pennsylvania, Decided: June 20, 2017.
2. Valles v. Albert Einstein Medical Center, 805 A.2d (PA, 2002).
3. Informed-consent ruling may have “far-reaching, negative impact.” AMA Wire, Aug 8, 2017.
Question: Which of the following statements regarding Shinal v. Toms, a recent landmark decision on informed consent, is correct?:
A. The case was heard in the Pennsylvania Supreme Court and its decision is binding only in that state.
B. It held that obtaining informed consent is a doctor’s duty that is non-delegable.
C. The decision reversed the lower courts, which had held that the defendant’s qualified assistant could obtain consent.
D. An earlier case heard by the same court had ruled that doctors, not hospitals, owe the legal duty to obtain informed consent.
E. All are correct.
Answer: E.
On Nov. 26, 2007, Megan Shinal and Dr. Steven Toms met for a 20-minute initial consultation to discuss removing a recurrent craniopharyngioma.1 Years earlier, a surgeon had performed a transsphenoidal resection, but was unable to remove all of it. The residual portion of the tumor had increased in size and extended into vital structures of the brain, jeopardizing Mrs. Shinal’s eyesight and her carotid artery, causing headaches, and threatening to impact her pituitary function.
Dr. Toms testified that he reviewed with Mrs. Shinal the alternatives, risks, and benefits of total versus subtotal resection, and shared his opinion that, although a less aggressive approach to removing the tumor was safer in the short term, such an approach would increase the likelihood that the tumor would regrow. Dr. Toms was unable to recall many of the specifics, but he testified that he advised Mrs. Shinal that total surgical resection offered the highest chance for long-term survival. By the end of the visit, Mrs. Shinal had decided to undergo surgery. However, the type of surgery had not yet been determined.
Shortly thereafter, on Dec. 19, 2007, Mrs. Shinal had a telephone conversation with Dr. Toms’ physician assistant. Mrs. Shinal later testified that she asked the physician assistant about scarring that would likely result from surgery, whether radiation would be necessary, and about the date of surgery. The medical record of this telephone call indicated that Dr. Toms’ physician assistant also answered questions about the craniotomy incision. On Jan. 17, 2008, Mrs. Shinal met with the physician assistant at the Geisinger Medical Center’s neurosurgery clinic. The assistant obtained Mrs. Shinal’s medical history, conducted a physical, and provided Mrs. Shinal with information relating to the surgery. Mrs. Shinal signed an informed consent form.
On Jan. 31, 2008, Mrs. Shinal underwent an open craniotomy for a total resection of the pituitary tumor at Geisinger Medical Center. During the operation, Dr. Toms perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury, and partial blindness.
According to the Shinals’ complaint, Dr. Toms failed to explain the risks of surgery to Mrs. Shinal or to offer her the lower-risk surgical alternative of subtotal resection of the benign tumor, followed by radiation. At trial, Mrs. Shinal was unable to recall being informed of the relative risks of the surgery, other than coma and death. She testified that, had she known the alternative approaches to surgery, i.e., total versus subtotal resection, she would have chosen subtotal resection as the safer, less aggressive alternative.
The trial court instructed the jury with regard to Dr. Toms’ duty to obtain informed consent from Mrs. Shinal as follows: “[I]n considering whether [Dr. Toms] provided consent to [Mrs. Shinal], you may consider any relevant information you find was communicated to [Mrs. Shinal] by any qualified person acting as an assistant to [Dr. Toms].”
On April 21, 2014, the jury returned a verdict in favor of Dr. Toms.
The plaintiffs appealed to the Pennsylvania Superior Court, which affirmed the trial court’s judgment. It rejected the Shinals’ argument that the trial court’s informed consent charge, which permitted the jury to consider information provided by Dr. Toms’ physician assistant to Mrs. Shinal, was erroneous and prejudicial. The Superior Court relied upon two of its prior cases to opine that a qualified professional acting under the attending doctor’s supervision may convey information communicated to a patient for purposes of obtaining informed consent.
The trial court initially instructed the jury that, in assessing whether Dr. Toms obtained Mrs. Shinal’s informed consent, it could consider relevant information communicated by “any qualified person acting as an assistant” to Dr. Toms. The defendant doctor argued that while it is the physician’s duty to obtain the patient’s informed consent, the physician is not required to supply all of the information personally. It is the information conveyed, rather than the person conveying it that determines informed consent. Dr. Toms cited several older Pennsylvania Superior Court cases, which permitted a physician to fulfill through an intermediary the duty to provide sufficient information to obtain a patient’s informed consent.
The plaintiffs then appealed to the Pennsylvania Supreme Court, which led to a reversal. In a 4-3 decision, the court disagreed, citing their ruling in the 2002 case of Valles v. Albert Einstein Medical Center,2 where they held that the duty to obtain informed consent could not be imputed to a hospital. In Valles, the court held that the duty to obtain a patient’s informed consent is a nondelegable duty owed by the physician conducting the surgery or treatment, because obtaining informed consent results directly from the duty of disclosure, which lies solely with the physician, and a hospital therefore cannot be liable for a physician’s failure to obtain informed consent.
Reasoning by extension, the court accordingly ruled that a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. It declared: “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician.”
The court also held that “a physician cannot rely upon a subordinate to disclose the information required to obtain informed consent. Without direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives. ... Informed consent is a product of the physician-patient relationship.
"The patient is in the vulnerable position of entrusting his or her care and well being to the physician based upon the physician’s education, training, and expertise," the court added. "It is incumbent upon the physician to cultivate a relationship with the patient and to familiarize himself or herself with the patient’s understanding and expectations. Were the law to permit physicians to delegate the provision of critical information to staff, it would undermine patient autonomy and bodily integrity by depriving the patient of the opportunity to engage in a dialogue with his or her chosen health care provider. A regime that would countenance delegation of the informed consent process would undermine the primacy of the physician-patient relationship. Only by personally satisfying the duty of disclosure may the physician ensure that consent truly is informed.”
The facts of the case appear straightforward, and its legal conclusion clear. Whether one agrees with the court’s decision is, however, another matter. The American Medical Association and the Pennsylvania Medical Society (PAMED) had submitted an amicus brief supporting Dr. Toms’ position, arguing that he had fulfilled his obligations under Pennsylvania’s Medical Care Availability and Reduction of Error Act, as well as common law established in previous Pennsylvania court rulings. The final appellate decision therefore came as a big disappointment. The PAMED website notes that the decision “could have significant ramifications for Pennsylvania physicians” in that they can “seemingly no longer rely on the aid of their qualified staff in the informed consent process.”3
The urgent question now is whether other jurisdictions will adopt this Pennsylvania rule that drastically changes the way doctors obtain informed consent from their patients.
Dr. Tan is emeritus 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. For additional information, readers may contact the author at [email protected].
References
1. Shinal v. Toms, J-106-2016, Supreme Court of Pennsylvania, Decided: June 20, 2017.
2. Valles v. Albert Einstein Medical Center, 805 A.2d (PA, 2002).
3. Informed-consent ruling may have “far-reaching, negative impact.” AMA Wire, Aug 8, 2017.
Federal medical tort reform: Has its time come?
Question: Congressional proposals on medical tort reform can be expected to include the following, except:
A. A no-fault system akin to automobile no-fault insurance.
B. A cap on noneconomic damages.
C. “Safe-harbor” immunity against medical negligence.
D. Health courts in place of the judge/jury system to adjudicate claims.
E. Promotion of laws that encourage apologies and error disclosures.
Answer: A. Under the current Republican administration, one can expect legislative efforts at federal tort reform, especially given that Thomas E. Price, MD, the new secretary of the Department of Health & Human Services, is an orthopedic surgeon who has spoken passionately about defensive medicine, damage caps, health tribunals, and practice guidelines. As a former House representative for Georgia, Dr. Price has introduced several tort reform bills, so it is likely that any omnibus federal law will incorporate some of his proposals.1
Over the decades, many states have gone ahead in enacting their own statutes while awaiting federal action. Iowa is the latest example. It recently passed legislation that included a noneconomic damages cap of $250,000, stronger expert witness standards, a certificate of merit in all medical liability lawsuits, and an expansion of its “candor” protections.2 Additional reforms in other states include pretrial screening panels; arbitration; structured periodic payments in lieu of lump sum payments; penalties for frivolous suits; shortened statutes of limitations; making the loser bear all litigation costs; abolishing the collateral source rule, as well as joint and several liability; and limiting attorney contingency fees.
The best-known reform is a cap on noneconomic losses, such as pain and suffering, that doesn’t abridge compensation for economic losses, i.e., medical expenses and lost wages. This provides some predictability because noneconomic damages are difficult to quantify, and jury sympathy may result in unrealistically high payments.
Interestingly, Dr. Price himself has not pushed for a federal cap on noneconomic damages, but other Republican bills have proposed a cap of $250,000. Many states, such as California, Kansas, and Texas, have seen their cap statutes withstand constitutional challenge. However, other jurisdictions, notably Georgia, Illinois, and Missouri, have ruled them unconstitutional.
California’s law, popularly known as MICRA (Medical Injury Compensation Reform Act), came under renewed attack in 2015 with a wrongful death suit from hemorrhagic complications related to Coumadin (warfarin) use following heart surgery.3 The plaintiff’s constitutional challenges included violation of equal protection, due process, and the right to a jury trial, but these were essentially all grounded on an entitlement to recover additional noneconomic damages sufficient to cover attorney fees. The trial court had reduced her $1 million noneconomic damages to $250,000, as required under MICRA. A California court of appeal rejected her claim as being “contrary to many well-established legal principles.”
On the other hand, Florida’s Supreme Court recently held in a closely divided decision of 4-3 that the state’s caps were unconstitutional.4 The law limited noneconomic damages in malpractice cases to either $500,000 or $1 million if the injuries were catastrophic. The court ruled that the caps were arbitrary and unfairly hurt the most severely injured. It was unconvinced that they would reduce malpractice insurance rates; at any rate, there was no present crisis to justify the caps. The decision came 3 years after the court had struck down caps in a case of wrongful death.5
Three relative newcomers to the legal landscape – health courts, apology laws, and safe harbors – appear to be taking center stage in any forthcoming federal reform measures.
Health courts
Under this proposal, so-called health panels and tribunals would now adjudicate malpractice claims. Such health courts would dispense with the jury; further, regular judges would be replaced with specialized judges who would make binding determinations. In one version, a panel of medical experts would initially screen the complaint, followed by an administrative health care tribunal that would feature judges with medical expertise. These tribunals would issue binding rulings, but either party could appeal to a state court for a reversal.
In countries such as Scandinavia and New Zealand, these administrative compensation approaches are coupled to a no-fault system and appear to work well. However, unlike auto no-fault and workers’ compensation, the notion of medical no-fault has never caught on in the United States.
As currently construed, health courts evince dramatic departures from traditional rules of civil procedure. For one, the panels may render decisions before discovery has occurred, which would substantially limit a patient’s ability to learn the facts of what had happened to cause the injury. The panel may rely on a standard of “gross negligence” instead of “ordinary negligence,” requiring evidence not merely of substandard care but of recklessness. This would be a heavier burden on the victim, and could be expected to generate stiff opposition from the plaintiff’s bar. In addition, evidentiary rules may be modified, requiring that an appeal show with clear and convincing proof that the tribunal had erred.
Apology law
Disclosure of medical errors to the injured patient is believed to serve as an ethical and effective way of thwarting potential malpractice claims. Many states have enacted so-called apology laws that disallow statements of sympathy from being admitted into evidence. In some cases, these laws may assist the physician.
For example, the Ohio Supreme Court 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.6 Apology laws vary from state to state, and some do not shield admissions regarding causation of error or fault.
However, it is unclear if apology laws work. A recent study from Vanderbilt University reported that, for physicians who do not regularly perform surgery, apology laws actually increased the probability of facing a lawsuit.7 And for surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.
Safe harbors
A proposal released by U.S. House Speaker Paul Ryan (R-Wis.) in June 2016 made reference to “safe harbors” from liability for those adhering to clinical practice guidelines. The Institute of Medicine defines practice guidelines as “systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.”
There are thousands of guidelines that have been developed by medical organizations and governmental agencies, as well as by insurance carriers, managed care organizations, and others. They purport to define the best evidence-based medicine, and if they were arrived at by the consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards.
Theoretically, adherence to guidelines could reduce the practice of defensive medicine and improve the quality of care. However, the available evidence does not indicate that guideline-based safe harbors will prove very effective in reducing malpractice claims: They are inapplicable in 85% of cases, and they have been estimated to eliminate defendants’ payments in less than 1% of claims.
Whether any form of tort reform emerges from the current Congress is as much about politics as it is about justice. It comes at an inopportune time, given the impasse over the health care debate. Still, on June 29, 2017, the U.S. House passed a medical liability reform bill with a vote of 218-210 along party lines that would cap noneconomic damages at $250,000, shorten the statute of limitations to 3 years after the date of injury, and abolish joint and several liability.8 The outlook in the U.S. Senate, however, is anything but certain.
References
1. N Engl J Med. 2017 May 11;376(19):1806-8.
2. “Sweeping new tort reforms will protect Iowa physicians” AMA Wire. June 1, 2017.
3. Chan v. Curran, 237 CA 4th 601 (2015).
4. N. Broward Hospital District v. Kalitan, (Florida Supreme Court, decided June 8, 2017).
5. Estate of Michelle Evette McCall v. U.S., 2014 Fla LEXIS 933 (No. SC 11-1148; March 13, 2014).
6. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440 (2013).
7. “Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk” SSRN. 2016 Dec 10.
8. Protecting Access to Care Act of 2017 (H.R. 1215).
Question: Congressional proposals on medical tort reform can be expected to include the following, except:
A. A no-fault system akin to automobile no-fault insurance.
B. A cap on noneconomic damages.
C. “Safe-harbor” immunity against medical negligence.
D. Health courts in place of the judge/jury system to adjudicate claims.
E. Promotion of laws that encourage apologies and error disclosures.
Answer: A. Under the current Republican administration, one can expect legislative efforts at federal tort reform, especially given that Thomas E. Price, MD, the new secretary of the Department of Health & Human Services, is an orthopedic surgeon who has spoken passionately about defensive medicine, damage caps, health tribunals, and practice guidelines. As a former House representative for Georgia, Dr. Price has introduced several tort reform bills, so it is likely that any omnibus federal law will incorporate some of his proposals.1
Over the decades, many states have gone ahead in enacting their own statutes while awaiting federal action. Iowa is the latest example. It recently passed legislation that included a noneconomic damages cap of $250,000, stronger expert witness standards, a certificate of merit in all medical liability lawsuits, and an expansion of its “candor” protections.2 Additional reforms in other states include pretrial screening panels; arbitration; structured periodic payments in lieu of lump sum payments; penalties for frivolous suits; shortened statutes of limitations; making the loser bear all litigation costs; abolishing the collateral source rule, as well as joint and several liability; and limiting attorney contingency fees.
The best-known reform is a cap on noneconomic losses, such as pain and suffering, that doesn’t abridge compensation for economic losses, i.e., medical expenses and lost wages. This provides some predictability because noneconomic damages are difficult to quantify, and jury sympathy may result in unrealistically high payments.
Interestingly, Dr. Price himself has not pushed for a federal cap on noneconomic damages, but other Republican bills have proposed a cap of $250,000. Many states, such as California, Kansas, and Texas, have seen their cap statutes withstand constitutional challenge. However, other jurisdictions, notably Georgia, Illinois, and Missouri, have ruled them unconstitutional.
California’s law, popularly known as MICRA (Medical Injury Compensation Reform Act), came under renewed attack in 2015 with a wrongful death suit from hemorrhagic complications related to Coumadin (warfarin) use following heart surgery.3 The plaintiff’s constitutional challenges included violation of equal protection, due process, and the right to a jury trial, but these were essentially all grounded on an entitlement to recover additional noneconomic damages sufficient to cover attorney fees. The trial court had reduced her $1 million noneconomic damages to $250,000, as required under MICRA. A California court of appeal rejected her claim as being “contrary to many well-established legal principles.”
On the other hand, Florida’s Supreme Court recently held in a closely divided decision of 4-3 that the state’s caps were unconstitutional.4 The law limited noneconomic damages in malpractice cases to either $500,000 or $1 million if the injuries were catastrophic. The court ruled that the caps were arbitrary and unfairly hurt the most severely injured. It was unconvinced that they would reduce malpractice insurance rates; at any rate, there was no present crisis to justify the caps. The decision came 3 years after the court had struck down caps in a case of wrongful death.5
Three relative newcomers to the legal landscape – health courts, apology laws, and safe harbors – appear to be taking center stage in any forthcoming federal reform measures.
Health courts
Under this proposal, so-called health panels and tribunals would now adjudicate malpractice claims. Such health courts would dispense with the jury; further, regular judges would be replaced with specialized judges who would make binding determinations. In one version, a panel of medical experts would initially screen the complaint, followed by an administrative health care tribunal that would feature judges with medical expertise. These tribunals would issue binding rulings, but either party could appeal to a state court for a reversal.
In countries such as Scandinavia and New Zealand, these administrative compensation approaches are coupled to a no-fault system and appear to work well. However, unlike auto no-fault and workers’ compensation, the notion of medical no-fault has never caught on in the United States.
As currently construed, health courts evince dramatic departures from traditional rules of civil procedure. For one, the panels may render decisions before discovery has occurred, which would substantially limit a patient’s ability to learn the facts of what had happened to cause the injury. The panel may rely on a standard of “gross negligence” instead of “ordinary negligence,” requiring evidence not merely of substandard care but of recklessness. This would be a heavier burden on the victim, and could be expected to generate stiff opposition from the plaintiff’s bar. In addition, evidentiary rules may be modified, requiring that an appeal show with clear and convincing proof that the tribunal had erred.
Apology law
Disclosure of medical errors to the injured patient is believed to serve as an ethical and effective way of thwarting potential malpractice claims. Many states have enacted so-called apology laws that disallow statements of sympathy from being admitted into evidence. In some cases, these laws may assist the physician.
For example, the Ohio Supreme Court 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.6 Apology laws vary from state to state, and some do not shield admissions regarding causation of error or fault.
However, it is unclear if apology laws work. A recent study from Vanderbilt University reported that, for physicians who do not regularly perform surgery, apology laws actually increased the probability of facing a lawsuit.7 And for surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.
Safe harbors
A proposal released by U.S. House Speaker Paul Ryan (R-Wis.) in June 2016 made reference to “safe harbors” from liability for those adhering to clinical practice guidelines. The Institute of Medicine defines practice guidelines as “systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.”
There are thousands of guidelines that have been developed by medical organizations and governmental agencies, as well as by insurance carriers, managed care organizations, and others. They purport to define the best evidence-based medicine, and if they were arrived at by the consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards.
Theoretically, adherence to guidelines could reduce the practice of defensive medicine and improve the quality of care. However, the available evidence does not indicate that guideline-based safe harbors will prove very effective in reducing malpractice claims: They are inapplicable in 85% of cases, and they have been estimated to eliminate defendants’ payments in less than 1% of claims.
Whether any form of tort reform emerges from the current Congress is as much about politics as it is about justice. It comes at an inopportune time, given the impasse over the health care debate. Still, on June 29, 2017, the U.S. House passed a medical liability reform bill with a vote of 218-210 along party lines that would cap noneconomic damages at $250,000, shorten the statute of limitations to 3 years after the date of injury, and abolish joint and several liability.8 The outlook in the U.S. Senate, however, is anything but certain.
References
1. N Engl J Med. 2017 May 11;376(19):1806-8.
2. “Sweeping new tort reforms will protect Iowa physicians” AMA Wire. June 1, 2017.
3. Chan v. Curran, 237 CA 4th 601 (2015).
4. N. Broward Hospital District v. Kalitan, (Florida Supreme Court, decided June 8, 2017).
5. Estate of Michelle Evette McCall v. U.S., 2014 Fla LEXIS 933 (No. SC 11-1148; March 13, 2014).
6. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440 (2013).
7. “Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk” SSRN. 2016 Dec 10.
8. Protecting Access to Care Act of 2017 (H.R. 1215).
Question: Congressional proposals on medical tort reform can be expected to include the following, except:
A. A no-fault system akin to automobile no-fault insurance.
B. A cap on noneconomic damages.
C. “Safe-harbor” immunity against medical negligence.
D. Health courts in place of the judge/jury system to adjudicate claims.
E. Promotion of laws that encourage apologies and error disclosures.
Answer: A. Under the current Republican administration, one can expect legislative efforts at federal tort reform, especially given that Thomas E. Price, MD, the new secretary of the Department of Health & Human Services, is an orthopedic surgeon who has spoken passionately about defensive medicine, damage caps, health tribunals, and practice guidelines. As a former House representative for Georgia, Dr. Price has introduced several tort reform bills, so it is likely that any omnibus federal law will incorporate some of his proposals.1
Over the decades, many states have gone ahead in enacting their own statutes while awaiting federal action. Iowa is the latest example. It recently passed legislation that included a noneconomic damages cap of $250,000, stronger expert witness standards, a certificate of merit in all medical liability lawsuits, and an expansion of its “candor” protections.2 Additional reforms in other states include pretrial screening panels; arbitration; structured periodic payments in lieu of lump sum payments; penalties for frivolous suits; shortened statutes of limitations; making the loser bear all litigation costs; abolishing the collateral source rule, as well as joint and several liability; and limiting attorney contingency fees.
The best-known reform is a cap on noneconomic losses, such as pain and suffering, that doesn’t abridge compensation for economic losses, i.e., medical expenses and lost wages. This provides some predictability because noneconomic damages are difficult to quantify, and jury sympathy may result in unrealistically high payments.
Interestingly, Dr. Price himself has not pushed for a federal cap on noneconomic damages, but other Republican bills have proposed a cap of $250,000. Many states, such as California, Kansas, and Texas, have seen their cap statutes withstand constitutional challenge. However, other jurisdictions, notably Georgia, Illinois, and Missouri, have ruled them unconstitutional.
California’s law, popularly known as MICRA (Medical Injury Compensation Reform Act), came under renewed attack in 2015 with a wrongful death suit from hemorrhagic complications related to Coumadin (warfarin) use following heart surgery.3 The plaintiff’s constitutional challenges included violation of equal protection, due process, and the right to a jury trial, but these were essentially all grounded on an entitlement to recover additional noneconomic damages sufficient to cover attorney fees. The trial court had reduced her $1 million noneconomic damages to $250,000, as required under MICRA. A California court of appeal rejected her claim as being “contrary to many well-established legal principles.”
On the other hand, Florida’s Supreme Court recently held in a closely divided decision of 4-3 that the state’s caps were unconstitutional.4 The law limited noneconomic damages in malpractice cases to either $500,000 or $1 million if the injuries were catastrophic. The court ruled that the caps were arbitrary and unfairly hurt the most severely injured. It was unconvinced that they would reduce malpractice insurance rates; at any rate, there was no present crisis to justify the caps. The decision came 3 years after the court had struck down caps in a case of wrongful death.5
Three relative newcomers to the legal landscape – health courts, apology laws, and safe harbors – appear to be taking center stage in any forthcoming federal reform measures.
Health courts
Under this proposal, so-called health panels and tribunals would now adjudicate malpractice claims. Such health courts would dispense with the jury; further, regular judges would be replaced with specialized judges who would make binding determinations. In one version, a panel of medical experts would initially screen the complaint, followed by an administrative health care tribunal that would feature judges with medical expertise. These tribunals would issue binding rulings, but either party could appeal to a state court for a reversal.
In countries such as Scandinavia and New Zealand, these administrative compensation approaches are coupled to a no-fault system and appear to work well. However, unlike auto no-fault and workers’ compensation, the notion of medical no-fault has never caught on in the United States.
As currently construed, health courts evince dramatic departures from traditional rules of civil procedure. For one, the panels may render decisions before discovery has occurred, which would substantially limit a patient’s ability to learn the facts of what had happened to cause the injury. The panel may rely on a standard of “gross negligence” instead of “ordinary negligence,” requiring evidence not merely of substandard care but of recklessness. This would be a heavier burden on the victim, and could be expected to generate stiff opposition from the plaintiff’s bar. In addition, evidentiary rules may be modified, requiring that an appeal show with clear and convincing proof that the tribunal had erred.
Apology law
Disclosure of medical errors to the injured patient is believed to serve as an ethical and effective way of thwarting potential malpractice claims. Many states have enacted so-called apology laws that disallow statements of sympathy from being admitted into evidence. In some cases, these laws may assist the physician.
For example, the Ohio Supreme Court 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.6 Apology laws vary from state to state, and some do not shield admissions regarding causation of error or fault.
However, it is unclear if apology laws work. A recent study from Vanderbilt University reported that, for physicians who do not regularly perform surgery, apology laws actually increased the probability of facing a lawsuit.7 And for surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.
Safe harbors
A proposal released by U.S. House Speaker Paul Ryan (R-Wis.) in June 2016 made reference to “safe harbors” from liability for those adhering to clinical practice guidelines. The Institute of Medicine defines practice guidelines as “systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.”
There are thousands of guidelines that have been developed by medical organizations and governmental agencies, as well as by insurance carriers, managed care organizations, and others. They purport to define the best evidence-based medicine, and if they were arrived at by the consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards.
Theoretically, adherence to guidelines could reduce the practice of defensive medicine and improve the quality of care. However, the available evidence does not indicate that guideline-based safe harbors will prove very effective in reducing malpractice claims: They are inapplicable in 85% of cases, and they have been estimated to eliminate defendants’ payments in less than 1% of claims.
Whether any form of tort reform emerges from the current Congress is as much about politics as it is about justice. It comes at an inopportune time, given the impasse over the health care debate. Still, on June 29, 2017, the U.S. House passed a medical liability reform bill with a vote of 218-210 along party lines that would cap noneconomic damages at $250,000, shorten the statute of limitations to 3 years after the date of injury, and abolish joint and several liability.8 The outlook in the U.S. Senate, however, is anything but certain.
References
1. N Engl J Med. 2017 May 11;376(19):1806-8.
2. “Sweeping new tort reforms will protect Iowa physicians” AMA Wire. June 1, 2017.
3. Chan v. Curran, 237 CA 4th 601 (2015).
4. N. Broward Hospital District v. Kalitan, (Florida Supreme Court, decided June 8, 2017).
5. Estate of Michelle Evette McCall v. U.S., 2014 Fla LEXIS 933 (No. SC 11-1148; March 13, 2014).
6. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440 (2013).
7. “Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk” SSRN. 2016 Dec 10.
8. Protecting Access to Care Act of 2017 (H.R. 1215).