Medicolegal Issues

As the practice of medicine continues to transition to performance-based payment systems, the number of mergers of hospitalists and specialists has surged. Payment models that focus on clinical outcomes and best practices link payment to the ability of physicians to provide efficient, quality healthcare and improve patient outcomes. These payment systems are changing the way healthcare services are delivered by demanding better patient care at a lower cost. The result is increasing pressure on physicians to meet operational and quality goals, or receive less reimbursement for their services.

Studies have shown that the effective use of hospitalists can improve standardized patient care for surgical patients. Hospitalists also provide value to specialists by freeing up time so they can focus on their area of expertise. As a result, co-management arrangements between hospitalists and specialists have become a popular tool to define working relationships and improve the quality of care patients receive.

Hospitalist Evolution

When hospitalists first debuted, they were seen as a threat to primary care physicians and specialists. Over time, they were criticized for performing routine work for specialized physicians. To overcome these negative connotations and prove their worth, hospitalists began co-managing patients for surgical specialists, who soon realized the significant value hospitalist services provided. Not only do they share in the responsibility of care provided to patients, but they also reduce readmissions and costs associated with providing healthcare.

Now there are even specialty hospitalists who specialize in a particular field, such as orthopedics or obstetrics.

Why Co-Management?

Hospitalists add value by helping to alleviate the burden on specialists—providing ED coverage, assisting in the operating room, and rounding on patients. They evaluate surgical patients for medical issues, reconcile medications across the spectrum of a patient’s care, and standardize the patient discharge and communication processes.

Providing these services frees specialists from rounding and allows them to concentrate on their specialty. Hospitalists do not have office-based practices, which allows them to spend their time in the hospital caring for admitted, pre-operative, and post-operative patients.

It is in the pre-operative and post-operative environments where hospitalists have established their extreme value to specialists. Under co-management arrangements, hospitalists are able to ensure that all pre-operative tests are conducted, reports are dictated, and the patient’s medical history is available. Pre-operative evaluations allow the hospitalist to develop a post-operative plan of care and proactively address many medical concerns. Also, the hospitalist is available to see patients immediately after surgery, allowing immediate evaluation and treatment for high blood pressure, diabetic issues, or other medical issues.

In sum, the hospitalist is responsible for the medical care of the specialist’s patients, and the specialist is able to focus on the specialty services he or she provides. Providing these services gives hospitalists the opportunity to anticipate problems and overcome issues, which results in more efficient care, shorter lengths of stay in the hospital, and improved patient satisfaction. Such results make hospitalists critical to success in performance-based payment systems.

Successful Co-Management Arrangements

A key to success in establishing a co-management arrangement between a hospitalist and a specialist is setting forth the parameters of the relationship in a written agreement. It is particularly important that the relationship foster equality among the parties, regardless of who is the attending physician of record. The parties should be jointly responsible for patient care, with the hospitalist treating the patient’s general medical concerns and the specialist focusing on techniques within his specialty to improve the patient’s issues.

The agreement should clearly state the responsibilities of each party, including delineating the party responsible for decisions such as admission and discharge. It should address resources and set forth the standardized processes and protocols to be used when treating patients.

Specialists can vary in their treatment of patients, so it is best to document their expectations at the onset of the relationship. Also, successful co-management is contingent upon regular communication between the hospitalist and the specialist. It is important to establish those boundaries in advance to prevent miscommunication down the road.

In particular, the agreement should explicitly describe the lines of authority and how conflicts will be addressed.

Final Thoughts

Co-management is a growing trend that can provide an opportunity for hospitalists to expand their practice and reinforce their value to both specialists and the hospital. The improved quality of care and patient satisfaction that is associated with hospitalist services can be crucial to maximizing reimbursement under a value-based reimbursement system. TH

As the practice of medicine continues to transition to performance-based payment systems, the number of mergers of hospitalists and specialists has surged. Payment models that focus on clinical outcomes and best practices link payment to the ability of physicians to provide efficient, quality healthcare and improve patient outcomes. These payment systems are changing the way healthcare services are delivered by demanding better patient care at a lower cost. The result is increasing pressure on physicians to meet operational and quality goals, or receive less reimbursement for their services.

Studies have shown that the effective use of hospitalists can improve standardized patient care for surgical patients. Hospitalists also provide value to specialists by freeing up time so they can focus on their area of expertise. As a result, co-management arrangements between hospitalists and specialists have become a popular tool to define working relationships and improve the quality of care patients receive.

Hospitalist Evolution

When hospitalists first debuted, they were seen as a threat to primary care physicians and specialists. Over time, they were criticized for performing routine work for specialized physicians. To overcome these negative connotations and prove their worth, hospitalists began co-managing patients for surgical specialists, who soon realized the significant value hospitalist services provided. Not only do they share in the responsibility of care provided to patients, but they also reduce readmissions and costs associated with providing healthcare.

Now there are even specialty hospitalists who specialize in a particular field, such as orthopedics or obstetrics.

Why Co-Management?

Hospitalists add value by helping to alleviate the burden on specialists—providing ED coverage, assisting in the operating room, and rounding on patients. They evaluate surgical patients for medical issues, reconcile medications across the spectrum of a patient’s care, and standardize the patient discharge and communication processes.

Providing these services frees specialists from rounding and allows them to concentrate on their specialty. Hospitalists do not have office-based practices, which allows them to spend their time in the hospital caring for admitted, pre-operative, and post-operative patients.

It is in the pre-operative and post-operative environments where hospitalists have established their extreme value to specialists. Under co-management arrangements, hospitalists are able to ensure that all pre-operative tests are conducted, reports are dictated, and the patient’s medical history is available. Pre-operative evaluations allow the hospitalist to develop a post-operative plan of care and proactively address many medical concerns. Also, the hospitalist is available to see patients immediately after surgery, allowing immediate evaluation and treatment for high blood pressure, diabetic issues, or other medical issues.

In sum, the hospitalist is responsible for the medical care of the specialist’s patients, and the specialist is able to focus on the specialty services he or she provides. Providing these services gives hospitalists the opportunity to anticipate problems and overcome issues, which results in more efficient care, shorter lengths of stay in the hospital, and improved patient satisfaction. Such results make hospitalists critical to success in performance-based payment systems.

Successful Co-Management Arrangements

A key to success in establishing a co-management arrangement between a hospitalist and a specialist is setting forth the parameters of the relationship in a written agreement. It is particularly important that the relationship foster equality among the parties, regardless of who is the attending physician of record. The parties should be jointly responsible for patient care, with the hospitalist treating the patient’s general medical concerns and the specialist focusing on techniques within his specialty to improve the patient’s issues.

The agreement should clearly state the responsibilities of each party, including delineating the party responsible for decisions such as admission and discharge. It should address resources and set forth the standardized processes and protocols to be used when treating patients.

Specialists can vary in their treatment of patients, so it is best to document their expectations at the onset of the relationship. Also, successful co-management is contingent upon regular communication between the hospitalist and the specialist. It is important to establish those boundaries in advance to prevent miscommunication down the road.

In particular, the agreement should explicitly describe the lines of authority and how conflicts will be addressed.

Final Thoughts

Co-management is a growing trend that can provide an opportunity for hospitalists to expand their practice and reinforce their value to both specialists and the hospital. The improved quality of care and patient satisfaction that is associated with hospitalist services can be crucial to maximizing reimbursement under a value-based reimbursement system. TH

As the practice of medicine continues to transition to performance-based payment systems, the number of mergers of hospitalists and specialists has surged. Payment models that focus on clinical outcomes and best practices link payment to the ability of physicians to provide efficient, quality healthcare and improve patient outcomes. These payment systems are changing the way healthcare services are delivered by demanding better patient care at a lower cost. The result is increasing pressure on physicians to meet operational and quality goals, or receive less reimbursement for their services.

Studies have shown that the effective use of hospitalists can improve standardized patient care for surgical patients. Hospitalists also provide value to specialists by freeing up time so they can focus on their area of expertise. As a result, co-management arrangements between hospitalists and specialists have become a popular tool to define working relationships and improve the quality of care patients receive.

Hospitalist Evolution

When hospitalists first debuted, they were seen as a threat to primary care physicians and specialists. Over time, they were criticized for performing routine work for specialized physicians. To overcome these negative connotations and prove their worth, hospitalists began co-managing patients for surgical specialists, who soon realized the significant value hospitalist services provided. Not only do they share in the responsibility of care provided to patients, but they also reduce readmissions and costs associated with providing healthcare.

Now there are even specialty hospitalists who specialize in a particular field, such as orthopedics or obstetrics.

Why Co-Management?

Hospitalists add value by helping to alleviate the burden on specialists—providing ED coverage, assisting in the operating room, and rounding on patients. They evaluate surgical patients for medical issues, reconcile medications across the spectrum of a patient’s care, and standardize the patient discharge and communication processes.

Providing these services frees specialists from rounding and allows them to concentrate on their specialty. Hospitalists do not have office-based practices, which allows them to spend their time in the hospital caring for admitted, pre-operative, and post-operative patients.

It is in the pre-operative and post-operative environments where hospitalists have established their extreme value to specialists. Under co-management arrangements, hospitalists are able to ensure that all pre-operative tests are conducted, reports are dictated, and the patient’s medical history is available. Pre-operative evaluations allow the hospitalist to develop a post-operative plan of care and proactively address many medical concerns. Also, the hospitalist is available to see patients immediately after surgery, allowing immediate evaluation and treatment for high blood pressure, diabetic issues, or other medical issues.

In sum, the hospitalist is responsible for the medical care of the specialist’s patients, and the specialist is able to focus on the specialty services he or she provides. Providing these services gives hospitalists the opportunity to anticipate problems and overcome issues, which results in more efficient care, shorter lengths of stay in the hospital, and improved patient satisfaction. Such results make hospitalists critical to success in performance-based payment systems.

Successful Co-Management Arrangements

A key to success in establishing a co-management arrangement between a hospitalist and a specialist is setting forth the parameters of the relationship in a written agreement. It is particularly important that the relationship foster equality among the parties, regardless of who is the attending physician of record. The parties should be jointly responsible for patient care, with the hospitalist treating the patient’s general medical concerns and the specialist focusing on techniques within his specialty to improve the patient’s issues.

The agreement should clearly state the responsibilities of each party, including delineating the party responsible for decisions such as admission and discharge. It should address resources and set forth the standardized processes and protocols to be used when treating patients.

Specialists can vary in their treatment of patients, so it is best to document their expectations at the onset of the relationship. Also, successful co-management is contingent upon regular communication between the hospitalist and the specialist. It is important to establish those boundaries in advance to prevent miscommunication down the road.

In particular, the agreement should explicitly describe the lines of authority and how conflicts will be addressed.

Final Thoughts

Co-management is a growing trend that can provide an opportunity for hospitalists to expand their practice and reinforce their value to both specialists and the hospital. The improved quality of care and patient satisfaction that is associated with hospitalist services can be crucial to maximizing reimbursement under a value-based reimbursement system. TH

Stroke during delivery: $35.4M verdict
During delivery, a 25-year-old woman had a hemorrhagic stroke that left her unable to care for herself or her child.

Patient’s claim The patient’s neurologist failed to advise the ObGyn that the patient had a history of brain aneurysm and a venous varix, which increased the risk for stroke during labor and delivery. The patient had shared her history with the ObGyn, and she requested that her neurologist contact the ObGyn.

Neurologist’s defense There was no negligence. The entire medical file had been delivered to the ObGyn. Any negligence was on the part of the ObGyn for failure to educate herself as to the patient’s condition.

Verdict A $35.4 million Massachusetts verdict was returned against the neurologist, including $12.9 million for past and future pain and suffering, $4 million for past medical care, $11 million for future medical care, $4.5 million for the husband’s loss of consortium, $1.5 million for lost wages, and $1.5 million for the child’s loss of consortium.
 

IUGR detected but not immediately treated: $15.5M settlement
During a prenatal visit at 38 weeks’ gestation, a mother’s ObGyn saw signs of intrauterine growth restriction (IUGR) but did not order ultrasono- graphy to confirm the diagnosis or induce labor. When born 15 days later, the baby had a low birth weight and low Apgar scores. The child has permanent brain injury due to hypoxia.

Parents’ claim The ObGyn should have confirmed the presence of IUGR and appropriately managed the mother’s prenatal care. The child’s injuries could have been prevented if an earlier delivery had occurred.

Physician’s defense The case was settled during the trial.

Verdict A $15.5 million Illinois settlement was reached.
 

Ureter injured during total abdominal hysterectomy
A 40-year-old woman with uterine fibroids, excessive bleeding, and pelvic pain underwent total abdominal hysterectomy performed by her ObGyn.

Postoperatively, the patient reported abdominal pain, but she was discharged from the hospital. Two days later, she returned to the emergency department reporting continued and increasing abdominal pain and urine leakage. The ObGyn referred her to a urologist who diagnosed stricture of the left ureter with a ureterovaginal fistula. A nephrostomy procedure was performed. Three months later, left ureter reimplantation surgery was completed.

Patient’s claim The ObGyn was negligent in injuring the ureter during hysterectomy, in not identifying the injury during surgery, and in not diagnosing and treating the injury in a timely manner, despite the patient’s reports of increasing pain.

Physician’s defense The case was settled during the trial.

Verdict A $350,000 Virginia settlement was reached.
 

Breech presentation but cesarean not performed
When her water broke, a mother was admitted to the hospital. The ObGyn ordered induction of labor but deferred vaginal examination to avoid infection. After labor was induced, a nurse noticed the presence of meconium. She performed a vaginal examination and found that the baby was in breech position; she did not immediately contact the ObGyn. After several hours of labor, the baby was born limp and not breathing with a heart rate of 50 bpm. The baby was resuscitated but sustained severe brain damage.

Parents’ claim The mother should have been examined before induction of labor. When it was determined that the baby was in breech position, a cesarean delivery should have been ordered. Communication between the nurse and ObGyn was poor.

Defendants' defense There was no negligence; labor was managed according to the standard of care.

Verdict A New Jersey defense verdict was returned.
 

Stroke during delivery: $35.4M verdict
During delivery, a 25-year-old woman had a hemorrhagic stroke that left her unable to care for herself or her child.

Patient’s claim The patient’s neurologist failed to advise the ObGyn that the patient had a history of brain aneurysm and a venous varix, which increased the risk for stroke during labor and delivery. The patient had shared her history with the ObGyn, and she requested that her neurologist contact the ObGyn.

Neurologist’s defense There was no negligence. The entire medical file had been delivered to the ObGyn. Any negligence was on the part of the ObGyn for failure to educate herself as to the patient’s condition.

Verdict A $35.4 million Massachusetts verdict was returned against the neurologist, including $12.9 million for past and future pain and suffering, $4 million for past medical care, $11 million for future medical care, $4.5 million for the husband’s loss of consortium, $1.5 million for lost wages, and $1.5 million for the child’s loss of consortium.
 

IUGR detected but not immediately treated: $15.5M settlement
During a prenatal visit at 38 weeks’ gestation, a mother’s ObGyn saw signs of intrauterine growth restriction (IUGR) but did not order ultrasono- graphy to confirm the diagnosis or induce labor. When born 15 days later, the baby had a low birth weight and low Apgar scores. The child has permanent brain injury due to hypoxia.

Parents’ claim The ObGyn should have confirmed the presence of IUGR and appropriately managed the mother’s prenatal care. The child’s injuries could have been prevented if an earlier delivery had occurred.

Physician’s defense The case was settled during the trial.

Verdict A $15.5 million Illinois settlement was reached.
 

Ureter injured during total abdominal hysterectomy
A 40-year-old woman with uterine fibroids, excessive bleeding, and pelvic pain underwent total abdominal hysterectomy performed by her ObGyn.

Postoperatively, the patient reported abdominal pain, but she was discharged from the hospital. Two days later, she returned to the emergency department reporting continued and increasing abdominal pain and urine leakage. The ObGyn referred her to a urologist who diagnosed stricture of the left ureter with a ureterovaginal fistula. A nephrostomy procedure was performed. Three months later, left ureter reimplantation surgery was completed.

Patient’s claim The ObGyn was negligent in injuring the ureter during hysterectomy, in not identifying the injury during surgery, and in not diagnosing and treating the injury in a timely manner, despite the patient’s reports of increasing pain.

Physician’s defense The case was settled during the trial.

Verdict A $350,000 Virginia settlement was reached.
 

Breech presentation but cesarean not performed
When her water broke, a mother was admitted to the hospital. The ObGyn ordered induction of labor but deferred vaginal examination to avoid infection. After labor was induced, a nurse noticed the presence of meconium. She performed a vaginal examination and found that the baby was in breech position; she did not immediately contact the ObGyn. After several hours of labor, the baby was born limp and not breathing with a heart rate of 50 bpm. The baby was resuscitated but sustained severe brain damage.

Parents’ claim The mother should have been examined before induction of labor. When it was determined that the baby was in breech position, a cesarean delivery should have been ordered. Communication between the nurse and ObGyn was poor.

Defendants' defense There was no negligence; labor was managed according to the standard of care.

Verdict A New Jersey defense verdict was returned.
 

Stroke during delivery: $35.4M verdict
During delivery, a 25-year-old woman had a hemorrhagic stroke that left her unable to care for herself or her child.

Patient’s claim The patient’s neurologist failed to advise the ObGyn that the patient had a history of brain aneurysm and a venous varix, which increased the risk for stroke during labor and delivery. The patient had shared her history with the ObGyn, and she requested that her neurologist contact the ObGyn.

Neurologist’s defense There was no negligence. The entire medical file had been delivered to the ObGyn. Any negligence was on the part of the ObGyn for failure to educate herself as to the patient’s condition.

Verdict A $35.4 million Massachusetts verdict was returned against the neurologist, including $12.9 million for past and future pain and suffering, $4 million for past medical care, $11 million for future medical care, $4.5 million for the husband’s loss of consortium, $1.5 million for lost wages, and $1.5 million for the child’s loss of consortium.
 

IUGR detected but not immediately treated: $15.5M settlement
During a prenatal visit at 38 weeks’ gestation, a mother’s ObGyn saw signs of intrauterine growth restriction (IUGR) but did not order ultrasono- graphy to confirm the diagnosis or induce labor. When born 15 days later, the baby had a low birth weight and low Apgar scores. The child has permanent brain injury due to hypoxia.

Parents’ claim The ObGyn should have confirmed the presence of IUGR and appropriately managed the mother’s prenatal care. The child’s injuries could have been prevented if an earlier delivery had occurred.

Physician’s defense The case was settled during the trial.

Verdict A $15.5 million Illinois settlement was reached.
 

Ureter injured during total abdominal hysterectomy
A 40-year-old woman with uterine fibroids, excessive bleeding, and pelvic pain underwent total abdominal hysterectomy performed by her ObGyn.

Postoperatively, the patient reported abdominal pain, but she was discharged from the hospital. Two days later, she returned to the emergency department reporting continued and increasing abdominal pain and urine leakage. The ObGyn referred her to a urologist who diagnosed stricture of the left ureter with a ureterovaginal fistula. A nephrostomy procedure was performed. Three months later, left ureter reimplantation surgery was completed.

Patient’s claim The ObGyn was negligent in injuring the ureter during hysterectomy, in not identifying the injury during surgery, and in not diagnosing and treating the injury in a timely manner, despite the patient’s reports of increasing pain.

Physician’s defense The case was settled during the trial.

Verdict A $350,000 Virginia settlement was reached.
 

Breech presentation but cesarean not performed
When her water broke, a mother was admitted to the hospital. The ObGyn ordered induction of labor but deferred vaginal examination to avoid infection. After labor was induced, a nurse noticed the presence of meconium. She performed a vaginal examination and found that the baby was in breech position; she did not immediately contact the ObGyn. After several hours of labor, the baby was born limp and not breathing with a heart rate of 50 bpm. The baby was resuscitated but sustained severe brain damage.

Parents’ claim The mother should have been examined before induction of labor. When it was determined that the baby was in breech position, a cesarean delivery should have been ordered. Communication between the nurse and ObGyn was poor.

Defendants' defense There was no negligence; labor was managed according to the standard of care.

Verdict A New Jersey defense verdict was returned.
 

Constipation

A 26-year-old woman presented to the ED with a chief complaint of chronic constipation. This was the patient’s fourth ED visit for the same complaint over the previous 12 days. The patient stated that, at the prior visits, she was prescribed stool softeners and instructed to increase the amount of green vegetables in her diet and to drink plenty of fluids. She further noted that although constipation had been a long-standing problem for her, the condition had become worse over the past several weeks.

The patient described some lower abdominal discomfort, but denied nausea, vomiting, fevers, or chills. She also denied any genitourinary complaints or flank pain. Her last menstrual period was 2 weeks prior and normal. Her medical history was unremarkable; she denied smoking cigarettes or drinking alcohol and had no known drug allergies.

On physical examination, the patient’s vital signs were normal and she did not appear to be in any distress. The lung and heart examinations were also normal. Her abdomen was found to be soft, with slight tenderness in the lower abdomen, but with no guarding, rebound, or distention. Bowel sounds were present and hypoactive. A rectal examination revealed minimal stool in the vault, which was heme negative.

The patient sued the EP and the hospital, stating that the enema was not only contraindicated, but also caused the colon perforation. She further alleged that the EP failed to properly diagnose the sigmoid volvulus. The defense argued that the patient suffered from an uncommon condition, and the treatment provided was appropriate given her symptoms. The defense further stated that the perforation was present prior to the administration of the enema. At trial, a defense verdict was returned.

Discussion

Sigmoid volvulus is a relatively rare cause of bowel obstruction, accounting for only 2% of intestinal obstructions in the United States between 2002 and 2010.¹ The majority of cases occur in older patients (mean age, 70 years).¹ Risk factors for development include a history of laxative abuse, chronic constipation, and institutionalized patients with underlying neurological or psychiatric disease. There also appears to be an increased incidence during pregnancy. When observed in the pediatric population and in young adults, sigmoid volvulus is frequently due to an underlying colonic motility disorder.

A volvulus occurs when the colon twists on its mesenteric axis with greater than 180° rotation, resulting in obstruction of the intestinal lumen and mesenteric vessels.² The most common locations for volvulus are the sigmoid colon, followed by the cecum. Though rare, the condition can occur in other locations.

The patient in this case presented very atypically for someone with a sigmoid volvulus as the majority of patients present with progressive abdominal pain, nausea, vomiting, and constipation. On physical examination, the abdomen is frequently distended and tympanitic with diffuse tenderness. If perforation has occurred, then peritoneal signs predominate (eg, guarding, rigidity, rebound tenderness) and abnormal vital signs (eg, fever, tachycardia, hypotension) are frequently present.

While a diagnosis of sigmoid volvulus may be suspected through the history and physical examination, it is confirmed through imaging studies, with abdominal/pelvic CT being the modality of choice. On CT scan, the “whirl sign” is frequently present, representing the dilated sigmoid colon twisted around its mesocolon and vessels.³ The tightness of the whirl is proportional to the degree of torsion. If rectal contrast is administered, the “bird-beak” sign is often present, representing the afferent and efferent colonic segments.³

As with this patient, if the colon has been perforated, IV fluid resuscitation, IV antibiotics, and immediate surgery are indicated. In cases in which there is no evidence of gangrene or perforation, sigmoidoscopy can be attempted to detorse the twisted bowel segment. This technique is successful in correcting torsion in the majority of cases. However, if detorsion attempts fail, emergent surgery is indicated.

Even when nonsurgical detorsion is successful, controversy exists over its use as the sole treatment for sigmoid volvulus. Due to a 50% to 60% chance of recurrent sigmoid volvulus, some experts recommend surgery immediately following detorsion, while others advise a wait-and-see approach.

The risk of complications from administering a soapsuds enema to an immunocompetent ED patient without signs or symptoms of peritonitis is exceedingly low. While no good data exist on the rate of complications from enemas administered for constipation, perforation of the bowel from barium enemas occurs in only 0.02% to 0.04% of patients undergoing radiologic imaging.⁴ The jury appears to have come to the proper conclusion in this atypical presentation of an uncommon condition with a rare complication.

Missed Diabetes Mellitus

A 27-year-old man presented to the ED with a 3-day history of severe abdominal pain, nausea and vomiting. The patient denied fevers, chills, or diarrhea, as well as any sick contacts. The patient stated he was otherwise in good health, on no medications, and had no known drug allergies. He denied alcohol or tobacco use.

His vital signs at presentation were: temperature, 98.6°F; pulse, 116 beats/minute; blood pressure, 152/92 mm Hg; and respiratory rate, 24 breaths/minute. Oxygen saturation was 100% on room air. On head, eyes, ears, nose, and throat examination, the patient’s mucous membranes were noted to be dry. The lung examination revealed bilateral breath sounds clear to auscultation. The heart examination was remarkable for tachycardia, but the rhythm was regular and with no murmurs, rubs, or gallops. The abdomen was soft with slight diffuse tenderness, but no guarding, rebound, or masses.

The EP ordered 1 L normal saline IV and ondansetron 4 mg IV for the nausea and vomiting. No laboratory or imaging studies were ordered.

On reexamination approximately 1 hour later, the patient denied any abdominal pain and stated he felt improved and was no longer nauseous. The abdominal examination remained unchanged. The patient was discharged home with a prescription for ondansetron and instructed to return to the ED if his symptoms did not improve within the next 12 hours.

The patient did not return to the ED, but was found dead at home 3 days later. An autopsy revealed the patient died from metabolic consequences of diabetes mellitus (DM). The plaintiff’s family argued the standard of care required a complete set of laboratory studies, the results of which would have revealed the hyperglycemia, prompting further evaluation and treatment. The defense contended the standard of care did not require laboratory evaluation since the patient responded well to the IV fluids and ondansetron, reported an improvement in pain and nausea, and had no history of DM. At trial, a defense verdict was returned.

Discussion

Emergency physicians are well versed in diagnosing and treating DM and its complications. Typical symptoms of new-onset diabetes include polyuria, polydipsia, abdominal pain, nausea, vomiting, and lack of energy. Occasionally, the patient will present with more severe symptoms (eg, altered mental status) when diabetic ketoacidosis is the initial presentation of the disease. It is unclear from the medical records in this case whether additional history, such as polyuria, was obtained. If so, and the answers were in the affirmative, this information might have led the EP to order laboratory studies. Similarly, we do not know how many episodes of emesis the patient experienced—eg, only one to two episodes of emesis or more than 10. It is important to have an appreciation of the severity of the presenting symptoms.

Emergency physicians frequently diagnose and manage patients appropriately without ordering laboratory or imaging studies. Acute asthma attacks, migraine headaches, bronchitis, sprains, and upper respiratory tract infections are just a few examples of the many conditions that are frequently managed by EPs based solely on history and physical examination. However, it is important the EP take a thorough enough history and physical examination to ensure confidence in excluding more severe disease processes. The severity of the symptoms must also be considered in the decision to order laboratory or other evaluation.

In this day and age of point-of-care testing, one should consider checking the glucose and electrolytes in patients with symptoms consistent with fluid loss (ie, vomiting, diarrhea, decreased oral intake).

A Note about Diabetes Mellitus

Emergency physicians should be aware of the increasing incidence of DM in the United States and around the world. The global prevalence of diabetes in adults in 2013 was reportedly 8.3% (382 million people), with 14 million more men than women diagnosed with the disease.¹

Broadly defined, diabetes is a group of metabolic diseases characterized by chronic hyperglycemia resulting from defects in insulin secretion, insulin action, or both.¹ Type 1 DM constitutes approximately 5% to 10% of patients diagnosed with diabetes and is due to the destruction of beta cells in the pancreas.¹ It accounts for approximately 80% to 90% of DM in children and adolescents, and is thought to be present in approximately 3 million patients in the United States in 2010.¹ Type 2 DM is the most common form, with 90% to 95% of patients belonging to this category, most of whom are adults. The problem in type 2 DM is primarily insulin resistance, as opposed to a lack of insulin. Obesity is the most common cause of insulin resistance in type 2 DM.¹

Constipation

A 26-year-old woman presented to the ED with a chief complaint of chronic constipation. This was the patient’s fourth ED visit for the same complaint over the previous 12 days. The patient stated that, at the prior visits, she was prescribed stool softeners and instructed to increase the amount of green vegetables in her diet and to drink plenty of fluids. She further noted that although constipation had been a long-standing problem for her, the condition had become worse over the past several weeks.

The patient described some lower abdominal discomfort, but denied nausea, vomiting, fevers, or chills. She also denied any genitourinary complaints or flank pain. Her last menstrual period was 2 weeks prior and normal. Her medical history was unremarkable; she denied smoking cigarettes or drinking alcohol and had no known drug allergies.

On physical examination, the patient’s vital signs were normal and she did not appear to be in any distress. The lung and heart examinations were also normal. Her abdomen was found to be soft, with slight tenderness in the lower abdomen, but with no guarding, rebound, or distention. Bowel sounds were present and hypoactive. A rectal examination revealed minimal stool in the vault, which was heme negative.

The patient sued the EP and the hospital, stating that the enema was not only contraindicated, but also caused the colon perforation. She further alleged that the EP failed to properly diagnose the sigmoid volvulus. The defense argued that the patient suffered from an uncommon condition, and the treatment provided was appropriate given her symptoms. The defense further stated that the perforation was present prior to the administration of the enema. At trial, a defense verdict was returned.

Discussion

Sigmoid volvulus is a relatively rare cause of bowel obstruction, accounting for only 2% of intestinal obstructions in the United States between 2002 and 2010.¹ The majority of cases occur in older patients (mean age, 70 years).¹ Risk factors for development include a history of laxative abuse, chronic constipation, and institutionalized patients with underlying neurological or psychiatric disease. There also appears to be an increased incidence during pregnancy. When observed in the pediatric population and in young adults, sigmoid volvulus is frequently due to an underlying colonic motility disorder.

A volvulus occurs when the colon twists on its mesenteric axis with greater than 180° rotation, resulting in obstruction of the intestinal lumen and mesenteric vessels.² The most common locations for volvulus are the sigmoid colon, followed by the cecum. Though rare, the condition can occur in other locations.

The patient in this case presented very atypically for someone with a sigmoid volvulus as the majority of patients present with progressive abdominal pain, nausea, vomiting, and constipation. On physical examination, the abdomen is frequently distended and tympanitic with diffuse tenderness. If perforation has occurred, then peritoneal signs predominate (eg, guarding, rigidity, rebound tenderness) and abnormal vital signs (eg, fever, tachycardia, hypotension) are frequently present.

While a diagnosis of sigmoid volvulus may be suspected through the history and physical examination, it is confirmed through imaging studies, with abdominal/pelvic CT being the modality of choice. On CT scan, the “whirl sign” is frequently present, representing the dilated sigmoid colon twisted around its mesocolon and vessels.³ The tightness of the whirl is proportional to the degree of torsion. If rectal contrast is administered, the “bird-beak” sign is often present, representing the afferent and efferent colonic segments.³

As with this patient, if the colon has been perforated, IV fluid resuscitation, IV antibiotics, and immediate surgery are indicated. In cases in which there is no evidence of gangrene or perforation, sigmoidoscopy can be attempted to detorse the twisted bowel segment. This technique is successful in correcting torsion in the majority of cases. However, if detorsion attempts fail, emergent surgery is indicated.

Even when nonsurgical detorsion is successful, controversy exists over its use as the sole treatment for sigmoid volvulus. Due to a 50% to 60% chance of recurrent sigmoid volvulus, some experts recommend surgery immediately following detorsion, while others advise a wait-and-see approach.

The risk of complications from administering a soapsuds enema to an immunocompetent ED patient without signs or symptoms of peritonitis is exceedingly low. While no good data exist on the rate of complications from enemas administered for constipation, perforation of the bowel from barium enemas occurs in only 0.02% to 0.04% of patients undergoing radiologic imaging.⁴ The jury appears to have come to the proper conclusion in this atypical presentation of an uncommon condition with a rare complication.

Missed Diabetes Mellitus

A 27-year-old man presented to the ED with a 3-day history of severe abdominal pain, nausea and vomiting. The patient denied fevers, chills, or diarrhea, as well as any sick contacts. The patient stated he was otherwise in good health, on no medications, and had no known drug allergies. He denied alcohol or tobacco use.

His vital signs at presentation were: temperature, 98.6°F; pulse, 116 beats/minute; blood pressure, 152/92 mm Hg; and respiratory rate, 24 breaths/minute. Oxygen saturation was 100% on room air. On head, eyes, ears, nose, and throat examination, the patient’s mucous membranes were noted to be dry. The lung examination revealed bilateral breath sounds clear to auscultation. The heart examination was remarkable for tachycardia, but the rhythm was regular and with no murmurs, rubs, or gallops. The abdomen was soft with slight diffuse tenderness, but no guarding, rebound, or masses.

The EP ordered 1 L normal saline IV and ondansetron 4 mg IV for the nausea and vomiting. No laboratory or imaging studies were ordered.

On reexamination approximately 1 hour later, the patient denied any abdominal pain and stated he felt improved and was no longer nauseous. The abdominal examination remained unchanged. The patient was discharged home with a prescription for ondansetron and instructed to return to the ED if his symptoms did not improve within the next 12 hours.

The patient did not return to the ED, but was found dead at home 3 days later. An autopsy revealed the patient died from metabolic consequences of diabetes mellitus (DM). The plaintiff’s family argued the standard of care required a complete set of laboratory studies, the results of which would have revealed the hyperglycemia, prompting further evaluation and treatment. The defense contended the standard of care did not require laboratory evaluation since the patient responded well to the IV fluids and ondansetron, reported an improvement in pain and nausea, and had no history of DM. At trial, a defense verdict was returned.

Discussion

Emergency physicians are well versed in diagnosing and treating DM and its complications. Typical symptoms of new-onset diabetes include polyuria, polydipsia, abdominal pain, nausea, vomiting, and lack of energy. Occasionally, the patient will present with more severe symptoms (eg, altered mental status) when diabetic ketoacidosis is the initial presentation of the disease. It is unclear from the medical records in this case whether additional history, such as polyuria, was obtained. If so, and the answers were in the affirmative, this information might have led the EP to order laboratory studies. Similarly, we do not know how many episodes of emesis the patient experienced—eg, only one to two episodes of emesis or more than 10. It is important to have an appreciation of the severity of the presenting symptoms.

Emergency physicians frequently diagnose and manage patients appropriately without ordering laboratory or imaging studies. Acute asthma attacks, migraine headaches, bronchitis, sprains, and upper respiratory tract infections are just a few examples of the many conditions that are frequently managed by EPs based solely on history and physical examination. However, it is important the EP take a thorough enough history and physical examination to ensure confidence in excluding more severe disease processes. The severity of the symptoms must also be considered in the decision to order laboratory or other evaluation.

In this day and age of point-of-care testing, one should consider checking the glucose and electrolytes in patients with symptoms consistent with fluid loss (ie, vomiting, diarrhea, decreased oral intake).

A Note about Diabetes Mellitus

Emergency physicians should be aware of the increasing incidence of DM in the United States and around the world. The global prevalence of diabetes in adults in 2013 was reportedly 8.3% (382 million people), with 14 million more men than women diagnosed with the disease.¹

Broadly defined, diabetes is a group of metabolic diseases characterized by chronic hyperglycemia resulting from defects in insulin secretion, insulin action, or both.¹ Type 1 DM constitutes approximately 5% to 10% of patients diagnosed with diabetes and is due to the destruction of beta cells in the pancreas.¹ It accounts for approximately 80% to 90% of DM in children and adolescents, and is thought to be present in approximately 3 million patients in the United States in 2010.¹ Type 2 DM is the most common form, with 90% to 95% of patients belonging to this category, most of whom are adults. The problem in type 2 DM is primarily insulin resistance, as opposed to a lack of insulin. Obesity is the most common cause of insulin resistance in type 2 DM.¹

Constipation

A 26-year-old woman presented to the ED with a chief complaint of chronic constipation. This was the patient’s fourth ED visit for the same complaint over the previous 12 days. The patient stated that, at the prior visits, she was prescribed stool softeners and instructed to increase the amount of green vegetables in her diet and to drink plenty of fluids. She further noted that although constipation had been a long-standing problem for her, the condition had become worse over the past several weeks.

The patient described some lower abdominal discomfort, but denied nausea, vomiting, fevers, or chills. She also denied any genitourinary complaints or flank pain. Her last menstrual period was 2 weeks prior and normal. Her medical history was unremarkable; she denied smoking cigarettes or drinking alcohol and had no known drug allergies.

On physical examination, the patient’s vital signs were normal and she did not appear to be in any distress. The lung and heart examinations were also normal. Her abdomen was found to be soft, with slight tenderness in the lower abdomen, but with no guarding, rebound, or distention. Bowel sounds were present and hypoactive. A rectal examination revealed minimal stool in the vault, which was heme negative.

The patient sued the EP and the hospital, stating that the enema was not only contraindicated, but also caused the colon perforation. She further alleged that the EP failed to properly diagnose the sigmoid volvulus. The defense argued that the patient suffered from an uncommon condition, and the treatment provided was appropriate given her symptoms. The defense further stated that the perforation was present prior to the administration of the enema. At trial, a defense verdict was returned.

Discussion

Sigmoid volvulus is a relatively rare cause of bowel obstruction, accounting for only 2% of intestinal obstructions in the United States between 2002 and 2010.¹ The majority of cases occur in older patients (mean age, 70 years).¹ Risk factors for development include a history of laxative abuse, chronic constipation, and institutionalized patients with underlying neurological or psychiatric disease. There also appears to be an increased incidence during pregnancy. When observed in the pediatric population and in young adults, sigmoid volvulus is frequently due to an underlying colonic motility disorder.

A volvulus occurs when the colon twists on its mesenteric axis with greater than 180° rotation, resulting in obstruction of the intestinal lumen and mesenteric vessels.² The most common locations for volvulus are the sigmoid colon, followed by the cecum. Though rare, the condition can occur in other locations.

The patient in this case presented very atypically for someone with a sigmoid volvulus as the majority of patients present with progressive abdominal pain, nausea, vomiting, and constipation. On physical examination, the abdomen is frequently distended and tympanitic with diffuse tenderness. If perforation has occurred, then peritoneal signs predominate (eg, guarding, rigidity, rebound tenderness) and abnormal vital signs (eg, fever, tachycardia, hypotension) are frequently present.

While a diagnosis of sigmoid volvulus may be suspected through the history and physical examination, it is confirmed through imaging studies, with abdominal/pelvic CT being the modality of choice. On CT scan, the “whirl sign” is frequently present, representing the dilated sigmoid colon twisted around its mesocolon and vessels.³ The tightness of the whirl is proportional to the degree of torsion. If rectal contrast is administered, the “bird-beak” sign is often present, representing the afferent and efferent colonic segments.³

As with this patient, if the colon has been perforated, IV fluid resuscitation, IV antibiotics, and immediate surgery are indicated. In cases in which there is no evidence of gangrene or perforation, sigmoidoscopy can be attempted to detorse the twisted bowel segment. This technique is successful in correcting torsion in the majority of cases. However, if detorsion attempts fail, emergent surgery is indicated.

Even when nonsurgical detorsion is successful, controversy exists over its use as the sole treatment for sigmoid volvulus. Due to a 50% to 60% chance of recurrent sigmoid volvulus, some experts recommend surgery immediately following detorsion, while others advise a wait-and-see approach.

The risk of complications from administering a soapsuds enema to an immunocompetent ED patient without signs or symptoms of peritonitis is exceedingly low. While no good data exist on the rate of complications from enemas administered for constipation, perforation of the bowel from barium enemas occurs in only 0.02% to 0.04% of patients undergoing radiologic imaging.⁴ The jury appears to have come to the proper conclusion in this atypical presentation of an uncommon condition with a rare complication.

Missed Diabetes Mellitus

A 27-year-old man presented to the ED with a 3-day history of severe abdominal pain, nausea and vomiting. The patient denied fevers, chills, or diarrhea, as well as any sick contacts. The patient stated he was otherwise in good health, on no medications, and had no known drug allergies. He denied alcohol or tobacco use.

His vital signs at presentation were: temperature, 98.6°F; pulse, 116 beats/minute; blood pressure, 152/92 mm Hg; and respiratory rate, 24 breaths/minute. Oxygen saturation was 100% on room air. On head, eyes, ears, nose, and throat examination, the patient’s mucous membranes were noted to be dry. The lung examination revealed bilateral breath sounds clear to auscultation. The heart examination was remarkable for tachycardia, but the rhythm was regular and with no murmurs, rubs, or gallops. The abdomen was soft with slight diffuse tenderness, but no guarding, rebound, or masses.

The EP ordered 1 L normal saline IV and ondansetron 4 mg IV for the nausea and vomiting. No laboratory or imaging studies were ordered.

On reexamination approximately 1 hour later, the patient denied any abdominal pain and stated he felt improved and was no longer nauseous. The abdominal examination remained unchanged. The patient was discharged home with a prescription for ondansetron and instructed to return to the ED if his symptoms did not improve within the next 12 hours.

The patient did not return to the ED, but was found dead at home 3 days later. An autopsy revealed the patient died from metabolic consequences of diabetes mellitus (DM). The plaintiff’s family argued the standard of care required a complete set of laboratory studies, the results of which would have revealed the hyperglycemia, prompting further evaluation and treatment. The defense contended the standard of care did not require laboratory evaluation since the patient responded well to the IV fluids and ondansetron, reported an improvement in pain and nausea, and had no history of DM. At trial, a defense verdict was returned.

Discussion

Emergency physicians are well versed in diagnosing and treating DM and its complications. Typical symptoms of new-onset diabetes include polyuria, polydipsia, abdominal pain, nausea, vomiting, and lack of energy. Occasionally, the patient will present with more severe symptoms (eg, altered mental status) when diabetic ketoacidosis is the initial presentation of the disease. It is unclear from the medical records in this case whether additional history, such as polyuria, was obtained. If so, and the answers were in the affirmative, this information might have led the EP to order laboratory studies. Similarly, we do not know how many episodes of emesis the patient experienced—eg, only one to two episodes of emesis or more than 10. It is important to have an appreciation of the severity of the presenting symptoms.

Emergency physicians frequently diagnose and manage patients appropriately without ordering laboratory or imaging studies. Acute asthma attacks, migraine headaches, bronchitis, sprains, and upper respiratory tract infections are just a few examples of the many conditions that are frequently managed by EPs based solely on history and physical examination. However, it is important the EP take a thorough enough history and physical examination to ensure confidence in excluding more severe disease processes. The severity of the symptoms must also be considered in the decision to order laboratory or other evaluation.

In this day and age of point-of-care testing, one should consider checking the glucose and electrolytes in patients with symptoms consistent with fluid loss (ie, vomiting, diarrhea, decreased oral intake).

A Note about Diabetes Mellitus

Emergency physicians should be aware of the increasing incidence of DM in the United States and around the world. The global prevalence of diabetes in adults in 2013 was reportedly 8.3% (382 million people), with 14 million more men than women diagnosed with the disease.¹

Broadly defined, diabetes is a group of metabolic diseases characterized by chronic hyperglycemia resulting from defects in insulin secretion, insulin action, or both.¹ Type 1 DM constitutes approximately 5% to 10% of patients diagnosed with diabetes and is due to the destruction of beta cells in the pancreas.¹ It accounts for approximately 80% to 90% of DM in children and adolescents, and is thought to be present in approximately 3 million patients in the United States in 2010.¹ Type 2 DM is the most common form, with 90% to 95% of patients belonging to this category, most of whom are adults. The problem in type 2 DM is primarily insulin resistance, as opposed to a lack of insulin. Obesity is the most common cause of insulin resistance in type 2 DM.¹

Endometrial cancer after unopposed estrogen: $7.5M
A 42-year-old woman took unopposed estrogen as treatment for reported perimenopausal symptoms from October 2010 through October 2012, although she still had her uterus.

In December 2013, the patient was diagnosed with Stage 3 endometrial cancer. She underwent a radical hysterectomy followed by several rounds of chemotherapy. Despite treatment, the cancer metastasized, leaving the patient with a decreased life expectancy.

Patient’s claim Use of unopposed estrogens by a woman who still has her uterus significantly increases her risk of developing endometrial cancer. The gynecologist was negligent for prescribing the drug.

Physician’s defense The case was settled during the trial.

Verdict A $7.5 million Illinois settlement was reached

Preeclampsia treatment delayed because BP machine failed: $5M
At 31 4/7 weeks’ gestation, a woman went to the hospital. She reported burning pain in her chest, headache, and vomiting.

Two nurses cared for the mother: one who was completing her shift (Nurse A) and another who was beginning her shift (Nurse B). Nurse A stated that the blood pressure (BP) machine was not working correctly when she attempted to assess the patient at admission. When Nurse B took the patient’s BP, it indicated preeclampsia. Shortly thereafter, fetal heart-rate monitoring showed a concerning pattern. Nurse B notified the ObGyn 75 minutes after the mother’s arrival. The ObGyn ordered intervention to treat the baby’s concerning heart rate and, when those efforts failed, an emergency cesarean delivery was performed. The baby was found to have brain damage caused by hypoxia.

Parents’ claim Because the BP machine was not working properly when the mother arrived at the hospital, intervention for preeclampsia was delayed. Preeclampsia caused the baby’s injuries. An earlier cesarean delivery should have been performed.

Defendant’s defense The patient was adequately treated. The injury likely occurred before the mother arrived at the hospital. The case was settled during the trial.

Verdict A $5 million Massachusetts settlement was reached with the hospital and ObGyn.

Standard prenatal scan missed congenital syndrome: $3.75M
A woman receiving prenatal care at a medical center requested an ultrasonographic anatomical fetal scan. A limited ultrasound (US) was performed, and no abnormalities were detected.

Upon birth, the child was found to have Dandy Walker syndrome, a malformation of the brain affecting mobility. The child requires full-time nursing care.

Parents’ claim If a complete prenatal anatomical survey had been performed when requested, the abnormality would have been detected. The mother would have terminated the pregnancy.

Defendant’s defense It is the medical center’s policy to perform complete anatomical surveys only on women with high-risk pregnancies, which this was not. The woman switched health care providers during her pregnancy. A subsequent US performed by the new health care provider did not show a fetal abnormality. The case was settled during the trial.

Verdict A $3.75 million New Jersey settlement was reached with the medical center.
 

Should mother have been discharged? $700,000 settlement
Due to elevated fetal heart rate, a woman was admitted to the hospital for fetal heart-rate monitoring and then discharged a few hours later. After 2 days, the mother was readmitted for induction of labor, but she was discharged the following day. The next day, she was readmitted when she noticed lack of fetal movement. The infant was stillborn.

Parents’ claim The mother and fetus were not properly monitored; she should not have been sent home after induction of labor. The hospital was negligent for not properly monitoring labor, for not assigning an ObGyn to care for the mother, and for not performing cesarean delivery.

Hospital’s defense The case was settled during the trial.

Verdict A $700,000 Illinois settlement was reached with the hospital.

Endometrial cancer after unopposed estrogen: $7.5M
A 42-year-old woman took unopposed estrogen as treatment for reported perimenopausal symptoms from October 2010 through October 2012, although she still had her uterus.

In December 2013, the patient was diagnosed with Stage 3 endometrial cancer. She underwent a radical hysterectomy followed by several rounds of chemotherapy. Despite treatment, the cancer metastasized, leaving the patient with a decreased life expectancy.

Patient’s claim Use of unopposed estrogens by a woman who still has her uterus significantly increases her risk of developing endometrial cancer. The gynecologist was negligent for prescribing the drug.

Physician’s defense The case was settled during the trial.

Verdict A $7.5 million Illinois settlement was reached

Preeclampsia treatment delayed because BP machine failed: $5M
At 31 4/7 weeks’ gestation, a woman went to the hospital. She reported burning pain in her chest, headache, and vomiting.

Two nurses cared for the mother: one who was completing her shift (Nurse A) and another who was beginning her shift (Nurse B). Nurse A stated that the blood pressure (BP) machine was not working correctly when she attempted to assess the patient at admission. When Nurse B took the patient’s BP, it indicated preeclampsia. Shortly thereafter, fetal heart-rate monitoring showed a concerning pattern. Nurse B notified the ObGyn 75 minutes after the mother’s arrival. The ObGyn ordered intervention to treat the baby’s concerning heart rate and, when those efforts failed, an emergency cesarean delivery was performed. The baby was found to have brain damage caused by hypoxia.

Parents’ claim Because the BP machine was not working properly when the mother arrived at the hospital, intervention for preeclampsia was delayed. Preeclampsia caused the baby’s injuries. An earlier cesarean delivery should have been performed.

Defendant’s defense The patient was adequately treated. The injury likely occurred before the mother arrived at the hospital. The case was settled during the trial.

Verdict A $5 million Massachusetts settlement was reached with the hospital and ObGyn.

Standard prenatal scan missed congenital syndrome: $3.75M
A woman receiving prenatal care at a medical center requested an ultrasonographic anatomical fetal scan. A limited ultrasound (US) was performed, and no abnormalities were detected.

Upon birth, the child was found to have Dandy Walker syndrome, a malformation of the brain affecting mobility. The child requires full-time nursing care.

Parents’ claim If a complete prenatal anatomical survey had been performed when requested, the abnormality would have been detected. The mother would have terminated the pregnancy.

Defendant’s defense It is the medical center’s policy to perform complete anatomical surveys only on women with high-risk pregnancies, which this was not. The woman switched health care providers during her pregnancy. A subsequent US performed by the new health care provider did not show a fetal abnormality. The case was settled during the trial.

Verdict A $3.75 million New Jersey settlement was reached with the medical center.
 

Should mother have been discharged? $700,000 settlement
Due to elevated fetal heart rate, a woman was admitted to the hospital for fetal heart-rate monitoring and then discharged a few hours later. After 2 days, the mother was readmitted for induction of labor, but she was discharged the following day. The next day, she was readmitted when she noticed lack of fetal movement. The infant was stillborn.

Parents’ claim The mother and fetus were not properly monitored; she should not have been sent home after induction of labor. The hospital was negligent for not properly monitoring labor, for not assigning an ObGyn to care for the mother, and for not performing cesarean delivery.

Hospital’s defense The case was settled during the trial.

Verdict A $700,000 Illinois settlement was reached with the hospital.

Endometrial cancer after unopposed estrogen: $7.5M
A 42-year-old woman took unopposed estrogen as treatment for reported perimenopausal symptoms from October 2010 through October 2012, although she still had her uterus.

In December 2013, the patient was diagnosed with Stage 3 endometrial cancer. She underwent a radical hysterectomy followed by several rounds of chemotherapy. Despite treatment, the cancer metastasized, leaving the patient with a decreased life expectancy.

Patient’s claim Use of unopposed estrogens by a woman who still has her uterus significantly increases her risk of developing endometrial cancer. The gynecologist was negligent for prescribing the drug.

Physician’s defense The case was settled during the trial.

Verdict A $7.5 million Illinois settlement was reached

Preeclampsia treatment delayed because BP machine failed: $5M
At 31 4/7 weeks’ gestation, a woman went to the hospital. She reported burning pain in her chest, headache, and vomiting.

Two nurses cared for the mother: one who was completing her shift (Nurse A) and another who was beginning her shift (Nurse B). Nurse A stated that the blood pressure (BP) machine was not working correctly when she attempted to assess the patient at admission. When Nurse B took the patient’s BP, it indicated preeclampsia. Shortly thereafter, fetal heart-rate monitoring showed a concerning pattern. Nurse B notified the ObGyn 75 minutes after the mother’s arrival. The ObGyn ordered intervention to treat the baby’s concerning heart rate and, when those efforts failed, an emergency cesarean delivery was performed. The baby was found to have brain damage caused by hypoxia.

Parents’ claim Because the BP machine was not working properly when the mother arrived at the hospital, intervention for preeclampsia was delayed. Preeclampsia caused the baby’s injuries. An earlier cesarean delivery should have been performed.

Defendant’s defense The patient was adequately treated. The injury likely occurred before the mother arrived at the hospital. The case was settled during the trial.

Verdict A $5 million Massachusetts settlement was reached with the hospital and ObGyn.

Standard prenatal scan missed congenital syndrome: $3.75M
A woman receiving prenatal care at a medical center requested an ultrasonographic anatomical fetal scan. A limited ultrasound (US) was performed, and no abnormalities were detected.

Upon birth, the child was found to have Dandy Walker syndrome, a malformation of the brain affecting mobility. The child requires full-time nursing care.

Parents’ claim If a complete prenatal anatomical survey had been performed when requested, the abnormality would have been detected. The mother would have terminated the pregnancy.

Defendant’s defense It is the medical center’s policy to perform complete anatomical surveys only on women with high-risk pregnancies, which this was not. The woman switched health care providers during her pregnancy. A subsequent US performed by the new health care provider did not show a fetal abnormality. The case was settled during the trial.

Verdict A $3.75 million New Jersey settlement was reached with the medical center.
 

Should mother have been discharged? $700,000 settlement
Due to elevated fetal heart rate, a woman was admitted to the hospital for fetal heart-rate monitoring and then discharged a few hours later. After 2 days, the mother was readmitted for induction of labor, but she was discharged the following day. The next day, she was readmitted when she noticed lack of fetal movement. The infant was stillborn.

Parents’ claim The mother and fetus were not properly monitored; she should not have been sent home after induction of labor. The hospital was negligent for not properly monitoring labor, for not assigning an ObGyn to care for the mother, and for not performing cesarean delivery.

Hospital’s defense The case was settled during the trial.

Verdict A $700,000 Illinois settlement was reached with the hospital.

Allergic Reaction Versus Anaphylaxis

A 34-year-old woman presented to ED with complaints of an allergic reaction, the onset of which began approximately 1 hour prior. The patient did not know what might have caused her symptoms. She complained of hives and itching all over; she denied difficulty swallowing, wheezing, and shortness of breath. Her medical history was unremarkable. She was on no medications, and she denied any alcohol or tobacco use. She had no known medication or food allergies.

Physical examination revealed a woman in mild discomfort, secondary to generalized itching. Her vital signs, including pulse oximetry, were normal. There was no swelling of the face, lips, or oropharynx. The lungs were clear to auscultation bilaterally. The heart and abdominal examinations were normal. Examination of the skin revealed diffuse urticaria without petechiae or purpura.

The emergency physician (EP) ordered 125 mg of methylprednisolone sodium succinate and 25 mg of diphenhydramine intravenously (IV). After approximately 1 hour, the hives and itching decreased and the patient felt improved. She was diagnosed with an allergic reaction and discharged home with a prescription for diphenhydramine and a methylprednisolone dose pack.

The following day, the patient collapsed at home and emergency medical services was called. Unfortunately, the patient could not be resuscitated and was pronounced dead at the scene. An autopsy revealed the patient had died from anaphylaxis and laryngeal edema, with an extremely elevated tryptase level of 200 ng/mL (normal, <11.5 ng/mL).

The patient’s family sued the EP for failure to diagnose and treat anaphylaxis, failure to treat with epinephrine, and failure to admit the patient to the hospital. The defense claimed the patient did not present with anaphylaxis, but rather simply a worsening of the hives and angioedema, and that the treatment provided was appropriate. The jury found in favor of the defendants.

Discussion

It does not appear the patient presented with anaphylaxis on the first visit, but may have had it on the second visit. In 2004, the National Institutes of Allergy and Infectious Disease (NIAID) panel and the Food Allergy and Anaphylaxis Network (FAAN) developed criteria for the diagnosis of anaphylaxis.¹ According to the criteria, anaphylaxis is likely when any one of the following three criteria are present: (1) acute onset of symptoms involving the skin or mucosa (eg, pruritus, hives, angioedema), and either respiratory compromise (eg, dyspnea, wheezing, stridor, hypoxia) or hypotension/end-organ dysfunction (eg, syncope, incontinence); (2) two or more symptoms (eg, respiratory compromise, hypotension/end-organ dysfunction, persistent gastrointestinal [GI] symptoms such as vomiting, diarrhea, or crampy abdominal pain) that occur rapidly after exposure involving the skin or mucosa; or (3) hypotension from a known allergen to the patient. The accuracy of these criteria has been retrospectively evaluated in an ED study, and found to have a 97% sensitivity and an 82% specificity.² The negative predictive value was good at 98%, but the positive predictive value was only 69%.²

When a patient presents with minimal or subtle symptoms, anaphylaxis can be a very difficult diagnosis to make in the ED early on in the process. While no EP will miss the diagnosis in a patient with hives, hypotension, and wheezing, it can be easy to miss when the predominant symptoms are GI, such as nausea, vomiting, or diarrhea. In addition, the differential diagnosis for the presentation of anaphylaxis in the ED can be extremely broad and include vasovagal reaction, asthma attack, myocardial infarction, gastroenteritis, panic attack, or airway obstruction.

Due to the nature of emergency medicine, EPs must consider multiple etiologies before determining an evaluation and management plan. While recognizing there are limitations to the NIAID/FAAN criteria, EPs should be aware of them. We are very good at treating these types of symptoms with antihistamines and steroids; however, we frequently fail to give epinephrine when indicated. It is important to remember that epinephrine is the first-line treatment for anaphylaxis—not corticosteroids or antihistamines.³

Reasons for not administering epinephrine are multiple. First, as discussed above, if the diagnosis of anaphylaxis is not considered, the EP is not going to administer the drug of choice. Secondly, EPs have been taught to have a healthy respect for epinephrine and its effects, especially in older patients. Due to this cautious approach, epinephrine is frequently not given to patients with mild symptoms or to those who present early in the course of disease.

Emergency physicians have experience giving epinephrine subcutaneously, but not nearly as much with the intramuscular (IM) route. This is important, because an IM injection in the anterolateral thigh is the recommended location for the treatment of anaphylaxis. The dose should be weight based (0.01 mg/kg) to a maximum of 0.5 mg. This dose can be given every 5 to 15 minutes as necessary to control symptoms.³ The dosing is important to remember, since many EDs stock only autoinjectable epinephrine devices for use in anaphylaxis. These autoinjectors only contain 0.3 mg of epinephrine, so some patients may be underdosed if used.

In the management of allergic reactions and anaphylaxis, EPs frequently administer antihistamines and corticosteroids. While there is no direct evidence to support their use in the management of anaphylaxis, theoretical benefits do exist.³ This, combined with the excellent medication safety profile and lack of serious side effects, make these two medication classes appropriate for use in the ED.

Allergic Reaction Versus Anaphylaxis

A 34-year-old woman presented to ED with complaints of an allergic reaction, the onset of which began approximately 1 hour prior. The patient did not know what might have caused her symptoms. She complained of hives and itching all over; she denied difficulty swallowing, wheezing, and shortness of breath. Her medical history was unremarkable. She was on no medications, and she denied any alcohol or tobacco use. She had no known medication or food allergies.

Physical examination revealed a woman in mild discomfort, secondary to generalized itching. Her vital signs, including pulse oximetry, were normal. There was no swelling of the face, lips, or oropharynx. The lungs were clear to auscultation bilaterally. The heart and abdominal examinations were normal. Examination of the skin revealed diffuse urticaria without petechiae or purpura.

The emergency physician (EP) ordered 125 mg of methylprednisolone sodium succinate and 25 mg of diphenhydramine intravenously (IV). After approximately 1 hour, the hives and itching decreased and the patient felt improved. She was diagnosed with an allergic reaction and discharged home with a prescription for diphenhydramine and a methylprednisolone dose pack.

The following day, the patient collapsed at home and emergency medical services was called. Unfortunately, the patient could not be resuscitated and was pronounced dead at the scene. An autopsy revealed the patient had died from anaphylaxis and laryngeal edema, with an extremely elevated tryptase level of 200 ng/mL (normal, <11.5 ng/mL).

The patient’s family sued the EP for failure to diagnose and treat anaphylaxis, failure to treat with epinephrine, and failure to admit the patient to the hospital. The defense claimed the patient did not present with anaphylaxis, but rather simply a worsening of the hives and angioedema, and that the treatment provided was appropriate. The jury found in favor of the defendants.

Discussion

It does not appear the patient presented with anaphylaxis on the first visit, but may have had it on the second visit. In 2004, the National Institutes of Allergy and Infectious Disease (NIAID) panel and the Food Allergy and Anaphylaxis Network (FAAN) developed criteria for the diagnosis of anaphylaxis.¹ According to the criteria, anaphylaxis is likely when any one of the following three criteria are present: (1) acute onset of symptoms involving the skin or mucosa (eg, pruritus, hives, angioedema), and either respiratory compromise (eg, dyspnea, wheezing, stridor, hypoxia) or hypotension/end-organ dysfunction (eg, syncope, incontinence); (2) two or more symptoms (eg, respiratory compromise, hypotension/end-organ dysfunction, persistent gastrointestinal [GI] symptoms such as vomiting, diarrhea, or crampy abdominal pain) that occur rapidly after exposure involving the skin or mucosa; or (3) hypotension from a known allergen to the patient. The accuracy of these criteria has been retrospectively evaluated in an ED study, and found to have a 97% sensitivity and an 82% specificity.² The negative predictive value was good at 98%, but the positive predictive value was only 69%.²

When a patient presents with minimal or subtle symptoms, anaphylaxis can be a very difficult diagnosis to make in the ED early on in the process. While no EP will miss the diagnosis in a patient with hives, hypotension, and wheezing, it can be easy to miss when the predominant symptoms are GI, such as nausea, vomiting, or diarrhea. In addition, the differential diagnosis for the presentation of anaphylaxis in the ED can be extremely broad and include vasovagal reaction, asthma attack, myocardial infarction, gastroenteritis, panic attack, or airway obstruction.

Due to the nature of emergency medicine, EPs must consider multiple etiologies before determining an evaluation and management plan. While recognizing there are limitations to the NIAID/FAAN criteria, EPs should be aware of them. We are very good at treating these types of symptoms with antihistamines and steroids; however, we frequently fail to give epinephrine when indicated. It is important to remember that epinephrine is the first-line treatment for anaphylaxis—not corticosteroids or antihistamines.³

Reasons for not administering epinephrine are multiple. First, as discussed above, if the diagnosis of anaphylaxis is not considered, the EP is not going to administer the drug of choice. Secondly, EPs have been taught to have a healthy respect for epinephrine and its effects, especially in older patients. Due to this cautious approach, epinephrine is frequently not given to patients with mild symptoms or to those who present early in the course of disease.

Emergency physicians have experience giving epinephrine subcutaneously, but not nearly as much with the intramuscular (IM) route. This is important, because an IM injection in the anterolateral thigh is the recommended location for the treatment of anaphylaxis. The dose should be weight based (0.01 mg/kg) to a maximum of 0.5 mg. This dose can be given every 5 to 15 minutes as necessary to control symptoms.³ The dosing is important to remember, since many EDs stock only autoinjectable epinephrine devices for use in anaphylaxis. These autoinjectors only contain 0.3 mg of epinephrine, so some patients may be underdosed if used.

In the management of allergic reactions and anaphylaxis, EPs frequently administer antihistamines and corticosteroids. While there is no direct evidence to support their use in the management of anaphylaxis, theoretical benefits do exist.³ This, combined with the excellent medication safety profile and lack of serious side effects, make these two medication classes appropriate for use in the ED.

Allergic Reaction Versus Anaphylaxis

A 34-year-old woman presented to ED with complaints of an allergic reaction, the onset of which began approximately 1 hour prior. The patient did not know what might have caused her symptoms. She complained of hives and itching all over; she denied difficulty swallowing, wheezing, and shortness of breath. Her medical history was unremarkable. She was on no medications, and she denied any alcohol or tobacco use. She had no known medication or food allergies.

Physical examination revealed a woman in mild discomfort, secondary to generalized itching. Her vital signs, including pulse oximetry, were normal. There was no swelling of the face, lips, or oropharynx. The lungs were clear to auscultation bilaterally. The heart and abdominal examinations were normal. Examination of the skin revealed diffuse urticaria without petechiae or purpura.

The emergency physician (EP) ordered 125 mg of methylprednisolone sodium succinate and 25 mg of diphenhydramine intravenously (IV). After approximately 1 hour, the hives and itching decreased and the patient felt improved. She was diagnosed with an allergic reaction and discharged home with a prescription for diphenhydramine and a methylprednisolone dose pack.

The following day, the patient collapsed at home and emergency medical services was called. Unfortunately, the patient could not be resuscitated and was pronounced dead at the scene. An autopsy revealed the patient had died from anaphylaxis and laryngeal edema, with an extremely elevated tryptase level of 200 ng/mL (normal, <11.5 ng/mL).

The patient’s family sued the EP for failure to diagnose and treat anaphylaxis, failure to treat with epinephrine, and failure to admit the patient to the hospital. The defense claimed the patient did not present with anaphylaxis, but rather simply a worsening of the hives and angioedema, and that the treatment provided was appropriate. The jury found in favor of the defendants.

Discussion

It does not appear the patient presented with anaphylaxis on the first visit, but may have had it on the second visit. In 2004, the National Institutes of Allergy and Infectious Disease (NIAID) panel and the Food Allergy and Anaphylaxis Network (FAAN) developed criteria for the diagnosis of anaphylaxis.¹ According to the criteria, anaphylaxis is likely when any one of the following three criteria are present: (1) acute onset of symptoms involving the skin or mucosa (eg, pruritus, hives, angioedema), and either respiratory compromise (eg, dyspnea, wheezing, stridor, hypoxia) or hypotension/end-organ dysfunction (eg, syncope, incontinence); (2) two or more symptoms (eg, respiratory compromise, hypotension/end-organ dysfunction, persistent gastrointestinal [GI] symptoms such as vomiting, diarrhea, or crampy abdominal pain) that occur rapidly after exposure involving the skin or mucosa; or (3) hypotension from a known allergen to the patient. The accuracy of these criteria has been retrospectively evaluated in an ED study, and found to have a 97% sensitivity and an 82% specificity.² The negative predictive value was good at 98%, but the positive predictive value was only 69%.²

When a patient presents with minimal or subtle symptoms, anaphylaxis can be a very difficult diagnosis to make in the ED early on in the process. While no EP will miss the diagnosis in a patient with hives, hypotension, and wheezing, it can be easy to miss when the predominant symptoms are GI, such as nausea, vomiting, or diarrhea. In addition, the differential diagnosis for the presentation of anaphylaxis in the ED can be extremely broad and include vasovagal reaction, asthma attack, myocardial infarction, gastroenteritis, panic attack, or airway obstruction.

Due to the nature of emergency medicine, EPs must consider multiple etiologies before determining an evaluation and management plan. While recognizing there are limitations to the NIAID/FAAN criteria, EPs should be aware of them. We are very good at treating these types of symptoms with antihistamines and steroids; however, we frequently fail to give epinephrine when indicated. It is important to remember that epinephrine is the first-line treatment for anaphylaxis—not corticosteroids or antihistamines.³

Reasons for not administering epinephrine are multiple. First, as discussed above, if the diagnosis of anaphylaxis is not considered, the EP is not going to administer the drug of choice. Secondly, EPs have been taught to have a healthy respect for epinephrine and its effects, especially in older patients. Due to this cautious approach, epinephrine is frequently not given to patients with mild symptoms or to those who present early in the course of disease.

Emergency physicians have experience giving epinephrine subcutaneously, but not nearly as much with the intramuscular (IM) route. This is important, because an IM injection in the anterolateral thigh is the recommended location for the treatment of anaphylaxis. The dose should be weight based (0.01 mg/kg) to a maximum of 0.5 mg. This dose can be given every 5 to 15 minutes as necessary to control symptoms.³ The dosing is important to remember, since many EDs stock only autoinjectable epinephrine devices for use in anaphylaxis. These autoinjectors only contain 0.3 mg of epinephrine, so some patients may be underdosed if used.

In the management of allergic reactions and anaphylaxis, EPs frequently administer antihistamines and corticosteroids. While there is no direct evidence to support their use in the management of anaphylaxis, theoretical benefits do exist.³ This, combined with the excellent medication safety profile and lack of serious side effects, make these two medication classes appropriate for use in the ED.

You might ask, why do I need to know what the Supreme Court does, it will not affect me! Well, we all know that is not exactly true. We chose these 6 cases because of their importance to ObGyns. In a number of them, the American Medical Association (AMA) or specific specialty board filed amicus curiae briefs, which suggested that the profession felt these were especially critical cases. (An amicus brief is a “friend of the Court” brief filed not by one of the affected parties, but by an organization or person with an interest or special expertise in the case.) You can find additional analysis of the 2015 term of the Supreme Court at the website of the National Register (http://www.nationalregister.org/pub/the-national-registerreport-pub/the-register-report-fall-2015/the-aca-survives-and-same-sex-marriage-thrives-the-2014-2015-supreme-court/).

1. Affordable Care Act upheld
King v Burwell was likely the Court’s most important case for physicians and their patients during the 2015 term.
At stake. The question was whether or not people who use the federal Affordable Care Act (ACA) Exchange could receive the same subsidy as those who use the state established Exchanges.¹
Final ruling. The Court said “yes,” they could receive the same subsidy, ruling in favor of King.

Key points of the case
The ACA provides for state Exchanges (an electronic marketplace in which people can compare and purchase health insurance policies), but most states did not establish Exchanges. As a result, in many states the federal Exchange became the default. Because the ACA subsidies (which help many people afford mandated insurance coverage) are processed through exchanges, the question of whether those who used the federal Exchange received the subsidy was enormously important. Subsidies for millions of individuals depended on it.

The language of the ACA provides that the insurance subsidy is available only if the person(s) enroll in “an Exchange established by the State” (emphasis added).¹ This case was about what “Exchange established by the State” means. A 6-justice majority held that the best interpretation of the statute was that it permitted subsidies through the federal Exchange. This was a difficult decision because, as the majority noted, the ACA is sloppily written. Nonetheless, the Court had to do its best to read the language in the context of the whole statute. Six justices held that the statute meant that the subsidies would cover people who signed up through federal as well as state Exchanges.

The dissenting justices essentially took the position that the language of the statute is clear. Among other things, the dissent said, it means that the words “established by the state” have no meaning at all in the statute, and it is unclear why Congress did not say “Exchange” instead of “Exchange established by the state.”

The results of the case were that the subsidies granted through the federal Exchange will continue. It will not expand the subsidies. Had the decision gone the other way, there would have been a real challenge to the future of the ACA. For that reason a number of medical and health care organizations filed amicus briefs with the Court in this case.

2. State licensing boards and antitrust
At stake. Antitrust laws prohibit combinations and conspiracies in restraint of trade. Competitors cannot come together to seek to set prices, divide the market, or prevent new competitors from entering the market. Since the 1940s, however, the Supreme Court has recognized a “state action” exception to the antitrust laws. The question before the Court this term was whether or not a state licensing board is included in the state-action immunity.²

The AMA and others filed an amicus brief in this case, noting threat to the public health if the Court disrupted state medical boards’ regulation of professional licensing and unauthorized practice.

Final ruling. The Court rejected this argument. It held that, where a state board is “controlled by active market participants” (as most state professional boards are), antitrust immunity is not automatic. For the immunity to protect boards, 2 conditions must exist, the Court held:

1. The state must have articulated a clear policy to allow the regulation that is an anticompetitive conduct (eg, licensing)

2. The state must have provided active supervision of the anticompetitive conduct. This requires that the state appoint someone or some group to approve policies of the board.

The first of these requirements often would be met by the statute setting up the board. The Court focused some attention on the second requirement. It concluded that “the adequacy of supervision otherwise will depend on all the circumstances of a case.”²

Key points of the case
In most states, this decision will require some kind of restructuring so that the professional boards are not the final decision makers but, in effect, only make recommendations to a “supervisor.” The Court gave short shrift to the AMA’s concerns that the decision might make it more difficult to attract really good professionals to the boards. The possibility of personal liability probably can be dealt with, but it deserves attention. The problems with litigation and antitrust claims, and reviews of decisions of a board (potentially by nonprofessionals) hardly can be a plus in attracting the right professionals to the boards.

This case will give rise to considerable litigation for many years. Medical boards should endeavor to get ahead of the issue by immediately studying ways in which the concerns of the Federal Trade Commissioncan be accommodated without significantly reducing the public protection that is part of well-administered professional licensing.

3. State reimbursement for Medicaid services
Medicaid is a federal-state program, and federal law requires, in part, that states must “assure that payments are … sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.”³ Providers claimed that the state had failed to establish such a payment system. A number of medical groups, including the AMA, filed amicus briefs in support of the providers.

At stake. State funding for various Medicaid services has been a problem for many health care professionals for some time. But the Medicaid law does not clearly give providers the right to file lawsuits claiming inadequate reimbursement,_⁴ so the question in this case was whether or not there was an implied right to do so.

Final ruling. The Court, in a 5-4 decision, held that Medicaid providers do not have the authority to sue states in federal courts torequire that the states provide higher Medicaid rates for services.⁴ As a practical matter, this decision leaves with the states broad authority to set Medicaid reimbursement rates. It is possible, of course, that in the future Congress would change the law to grant such rights or more clearly set reimbursement rates.

4. False Claims Act cases
Unfortunately, False Claims Act cases occur in health care. False claims transpire when someone (or an organization) presents to the government a claim for payment that is not legitimate or is for inadequate or low quality services. False claims include everything from fraudulent billing for services never performed to a pharmaceutical company’s promotion of a drug for off-label use.

The federal False Claims Act incentivizes private whistleblowers (often disgruntled employees) to initiate false claims lawsuits. (The government may then choose to take over the false claims or allow the private whistleblower to pursue them.)

At stake. Because Medicare and Medicaid are federally financed programs, it is common for providers who participate in those programs to be subject to false claims.⁵ This term the Court heard an important False Claims Act case involving the statute of limitations and multiple claims based on the same activity. The AMA joined an amicus brief urging the Court to prohibit both kinds of expansion.

Final ruling. The Court agreed that the statute of limitations for these claims should not be extended, but it did determine that the “first-to-file” limitation in the statute “keeps new claims out of court only while related claims are still alive, not in perpetuity.”⁵ The result of this second holding is that the “firstto-file” rule does not preclude another false claims suit that is duplicative to be filed as soon as the prior suit is no longer pending.

It is not clear that the practical effect of the decision will be great, but it may in some cases open up clinicians to multiple, serial lawsuits over the same claims.

5. Pregnancy and employment discrimination
The federal Pregnancy Discrimination Act (PDA) prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” It also requires that employers treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

At stake. United Parcel Service (UPS) declined to give a pregnant employee a “light duty” accommodation during pregnancy so that she could avoid having to lift heavy packages. But it had given other employees just that kind of accommodation when they were injured or lost certification to drive a delivery truck. The suit claimed violation of the PDA.⁶

Final ruling. The Court held that UPS violated the PDA by giving some employees this accommodation but refusing it to pregnant workers who requested it.6 Once an organization voluntarily grants a particular accommodation to, for example, a temporarily injured worker, it may be required to provide similar accommodation to pregnant workers. The case probably will increase employment protection for pregnant women.

6. Children “testifying” in abuse cases
All states require physicians and teachers, among others, to report suspected child abuse. An ongoing question has been whether those reporters may be called to testify about what the child said at the time of abuse discovery/suspicion. This case involved a teacher, but it could as easily have been a physician.⁷

Key points of the case. Teachers found suspicious injuries on 3-year-old L.P. The child gave conflicting statements about what happened, but claimed that Clark had hurt him. At Clark’s criminal trial, L.P. did not testify, but the state wanted to introduce L.P.’s statements to the teachers as evidence of Clark’s guilt.

At stake. The question was whether or not this introduction would violate the right of Clark to “confront his accuser” as guaranteed by the Constitution.

Final ruling. All 9 justices said it was proper to allow L.P.’s statements to be introduced at trial.⁷ Essentially this was permitted because the primary purpose of L.P.’s statements was not to gather testimony to be presented at trial.

The final opinion creates incentives for some prosecutors to make abuse victims unavailable in order to allow their testimony by hearsay. Aside from the legal technicalities, the likelihood of wrongful convictions under such a system must be considered for the long run.

Other major 2015 Supreme Court decisions
- The Constitution requires states to recognize same-sex marriages and also accept such marriages performed in other states.¹ (The American Medical Association joined an amicus brief in this case.)
- The Court turned down the appeal of several inmates who had received lethal injection death sentences. They challenged the mix of drugs that Oklahoma planned to use to execute them.²
- In 2 cases justices went out of the way to raise questions about the constitutionality of the death penalty. This may suggest that the Court will take up this issue in the near future.^2,3
- Federal housing discrimination laws were expanded to cases in which there is “disparate impact” discrimination.⁴
- The Court narrowed prosecution for “threatening” statements in social network/Internet communications by holding that negligence in the communication is not sufficient for conviction under federal law.⁵
- The Court held that the Environmental Protection Agency violated the Clean Air Act with its power plant emission regulations because it failed to do a proper cost-benefit analysis.⁶

References
1. Obergefell et al v Hodges, Director, Ohio Department of Health et al, No. 14–556 (2015). http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf. Accessed December 14, 2015.
2. Glossip et al v Gross et al, No. 14–7955 (2015). http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf. Accessed December 14, 2015.
3. Davis, Acting Worden v Ayala, No. 13–1428 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf. Accessed December 14, 2015.
4. Texas Department of Housing and Community Affairs et al v Inclusive Communities Project, Inc et al, No. 13–1371 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1371_8m58.pdf. Accessed December 14, 2015.
5. Elonis v United States, No. 13–983 (2015). http://www.supremecourt.gov/opinions/14pdf/13-983_7148.pdf. Accessed December 14, 2015.
6. Michigan et al v Environmental Protection Agency et al, No. 14–46 (2015). http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf. Accessed December 14, 2015.

What’s coming in 2016
This term of the Supreme Court is a reminder of how important the decisions of the Court are to the work of physicians and ObGyns in particular. This trend is continuing—the Court already has, for the next term, accepted cases regarding abortion, contraception, and health care delivery. It will, therefore, be worthwhile to follow the developments at the nation’s highest court.

Share your thoughts on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

You might ask, why do I need to know what the Supreme Court does, it will not affect me! Well, we all know that is not exactly true. We chose these 6 cases because of their importance to ObGyns. In a number of them, the American Medical Association (AMA) or specific specialty board filed amicus curiae briefs, which suggested that the profession felt these were especially critical cases. (An amicus brief is a “friend of the Court” brief filed not by one of the affected parties, but by an organization or person with an interest or special expertise in the case.) You can find additional analysis of the 2015 term of the Supreme Court at the website of the National Register (http://www.nationalregister.org/pub/the-national-registerreport-pub/the-register-report-fall-2015/the-aca-survives-and-same-sex-marriage-thrives-the-2014-2015-supreme-court/).

1. Affordable Care Act upheld
King v Burwell was likely the Court’s most important case for physicians and their patients during the 2015 term.
At stake. The question was whether or not people who use the federal Affordable Care Act (ACA) Exchange could receive the same subsidy as those who use the state established Exchanges.¹
Final ruling. The Court said “yes,” they could receive the same subsidy, ruling in favor of King.

Key points of the case
The ACA provides for state Exchanges (an electronic marketplace in which people can compare and purchase health insurance policies), but most states did not establish Exchanges. As a result, in many states the federal Exchange became the default. Because the ACA subsidies (which help many people afford mandated insurance coverage) are processed through exchanges, the question of whether those who used the federal Exchange received the subsidy was enormously important. Subsidies for millions of individuals depended on it.

The language of the ACA provides that the insurance subsidy is available only if the person(s) enroll in “an Exchange established by the State” (emphasis added).¹ This case was about what “Exchange established by the State” means. A 6-justice majority held that the best interpretation of the statute was that it permitted subsidies through the federal Exchange. This was a difficult decision because, as the majority noted, the ACA is sloppily written. Nonetheless, the Court had to do its best to read the language in the context of the whole statute. Six justices held that the statute meant that the subsidies would cover people who signed up through federal as well as state Exchanges.

The dissenting justices essentially took the position that the language of the statute is clear. Among other things, the dissent said, it means that the words “established by the state” have no meaning at all in the statute, and it is unclear why Congress did not say “Exchange” instead of “Exchange established by the state.”

The results of the case were that the subsidies granted through the federal Exchange will continue. It will not expand the subsidies. Had the decision gone the other way, there would have been a real challenge to the future of the ACA. For that reason a number of medical and health care organizations filed amicus briefs with the Court in this case.

2. State licensing boards and antitrust
At stake. Antitrust laws prohibit combinations and conspiracies in restraint of trade. Competitors cannot come together to seek to set prices, divide the market, or prevent new competitors from entering the market. Since the 1940s, however, the Supreme Court has recognized a “state action” exception to the antitrust laws. The question before the Court this term was whether or not a state licensing board is included in the state-action immunity.²

The AMA and others filed an amicus brief in this case, noting threat to the public health if the Court disrupted state medical boards’ regulation of professional licensing and unauthorized practice.

Final ruling. The Court rejected this argument. It held that, where a state board is “controlled by active market participants” (as most state professional boards are), antitrust immunity is not automatic. For the immunity to protect boards, 2 conditions must exist, the Court held:

1. The state must have articulated a clear policy to allow the regulation that is an anticompetitive conduct (eg, licensing)

2. The state must have provided active supervision of the anticompetitive conduct. This requires that the state appoint someone or some group to approve policies of the board.

The first of these requirements often would be met by the statute setting up the board. The Court focused some attention on the second requirement. It concluded that “the adequacy of supervision otherwise will depend on all the circumstances of a case.”²

Key points of the case
In most states, this decision will require some kind of restructuring so that the professional boards are not the final decision makers but, in effect, only make recommendations to a “supervisor.” The Court gave short shrift to the AMA’s concerns that the decision might make it more difficult to attract really good professionals to the boards. The possibility of personal liability probably can be dealt with, but it deserves attention. The problems with litigation and antitrust claims, and reviews of decisions of a board (potentially by nonprofessionals) hardly can be a plus in attracting the right professionals to the boards.

This case will give rise to considerable litigation for many years. Medical boards should endeavor to get ahead of the issue by immediately studying ways in which the concerns of the Federal Trade Commissioncan be accommodated without significantly reducing the public protection that is part of well-administered professional licensing.

3. State reimbursement for Medicaid services
Medicaid is a federal-state program, and federal law requires, in part, that states must “assure that payments are … sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.”³ Providers claimed that the state had failed to establish such a payment system. A number of medical groups, including the AMA, filed amicus briefs in support of the providers.

At stake. State funding for various Medicaid services has been a problem for many health care professionals for some time. But the Medicaid law does not clearly give providers the right to file lawsuits claiming inadequate reimbursement,_⁴ so the question in this case was whether or not there was an implied right to do so.

Final ruling. The Court, in a 5-4 decision, held that Medicaid providers do not have the authority to sue states in federal courts torequire that the states provide higher Medicaid rates for services.⁴ As a practical matter, this decision leaves with the states broad authority to set Medicaid reimbursement rates. It is possible, of course, that in the future Congress would change the law to grant such rights or more clearly set reimbursement rates.

4. False Claims Act cases
Unfortunately, False Claims Act cases occur in health care. False claims transpire when someone (or an organization) presents to the government a claim for payment that is not legitimate or is for inadequate or low quality services. False claims include everything from fraudulent billing for services never performed to a pharmaceutical company’s promotion of a drug for off-label use.

The federal False Claims Act incentivizes private whistleblowers (often disgruntled employees) to initiate false claims lawsuits. (The government may then choose to take over the false claims or allow the private whistleblower to pursue them.)

At stake. Because Medicare and Medicaid are federally financed programs, it is common for providers who participate in those programs to be subject to false claims.⁵ This term the Court heard an important False Claims Act case involving the statute of limitations and multiple claims based on the same activity. The AMA joined an amicus brief urging the Court to prohibit both kinds of expansion.

Final ruling. The Court agreed that the statute of limitations for these claims should not be extended, but it did determine that the “first-to-file” limitation in the statute “keeps new claims out of court only while related claims are still alive, not in perpetuity.”⁵ The result of this second holding is that the “firstto-file” rule does not preclude another false claims suit that is duplicative to be filed as soon as the prior suit is no longer pending.

It is not clear that the practical effect of the decision will be great, but it may in some cases open up clinicians to multiple, serial lawsuits over the same claims.

5. Pregnancy and employment discrimination
The federal Pregnancy Discrimination Act (PDA) prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” It also requires that employers treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

At stake. United Parcel Service (UPS) declined to give a pregnant employee a “light duty” accommodation during pregnancy so that she could avoid having to lift heavy packages. But it had given other employees just that kind of accommodation when they were injured or lost certification to drive a delivery truck. The suit claimed violation of the PDA.⁶

Final ruling. The Court held that UPS violated the PDA by giving some employees this accommodation but refusing it to pregnant workers who requested it.6 Once an organization voluntarily grants a particular accommodation to, for example, a temporarily injured worker, it may be required to provide similar accommodation to pregnant workers. The case probably will increase employment protection for pregnant women.

6. Children “testifying” in abuse cases
All states require physicians and teachers, among others, to report suspected child abuse. An ongoing question has been whether those reporters may be called to testify about what the child said at the time of abuse discovery/suspicion. This case involved a teacher, but it could as easily have been a physician.⁷

Key points of the case. Teachers found suspicious injuries on 3-year-old L.P. The child gave conflicting statements about what happened, but claimed that Clark had hurt him. At Clark’s criminal trial, L.P. did not testify, but the state wanted to introduce L.P.’s statements to the teachers as evidence of Clark’s guilt.

At stake. The question was whether or not this introduction would violate the right of Clark to “confront his accuser” as guaranteed by the Constitution.

Final ruling. All 9 justices said it was proper to allow L.P.’s statements to be introduced at trial.⁷ Essentially this was permitted because the primary purpose of L.P.’s statements was not to gather testimony to be presented at trial.

The final opinion creates incentives for some prosecutors to make abuse victims unavailable in order to allow their testimony by hearsay. Aside from the legal technicalities, the likelihood of wrongful convictions under such a system must be considered for the long run.

Other major 2015 Supreme Court decisions
- The Constitution requires states to recognize same-sex marriages and also accept such marriages performed in other states.¹ (The American Medical Association joined an amicus brief in this case.)
- The Court turned down the appeal of several inmates who had received lethal injection death sentences. They challenged the mix of drugs that Oklahoma planned to use to execute them.²
- In 2 cases justices went out of the way to raise questions about the constitutionality of the death penalty. This may suggest that the Court will take up this issue in the near future.^2,3
- Federal housing discrimination laws were expanded to cases in which there is “disparate impact” discrimination.⁴
- The Court narrowed prosecution for “threatening” statements in social network/Internet communications by holding that negligence in the communication is not sufficient for conviction under federal law.⁵
- The Court held that the Environmental Protection Agency violated the Clean Air Act with its power plant emission regulations because it failed to do a proper cost-benefit analysis.⁶

References
1. Obergefell et al v Hodges, Director, Ohio Department of Health et al, No. 14–556 (2015). http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf. Accessed December 14, 2015.
2. Glossip et al v Gross et al, No. 14–7955 (2015). http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf. Accessed December 14, 2015.
3. Davis, Acting Worden v Ayala, No. 13–1428 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf. Accessed December 14, 2015.
4. Texas Department of Housing and Community Affairs et al v Inclusive Communities Project, Inc et al, No. 13–1371 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1371_8m58.pdf. Accessed December 14, 2015.
5. Elonis v United States, No. 13–983 (2015). http://www.supremecourt.gov/opinions/14pdf/13-983_7148.pdf. Accessed December 14, 2015.
6. Michigan et al v Environmental Protection Agency et al, No. 14–46 (2015). http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf. Accessed December 14, 2015.

What’s coming in 2016
This term of the Supreme Court is a reminder of how important the decisions of the Court are to the work of physicians and ObGyns in particular. This trend is continuing—the Court already has, for the next term, accepted cases regarding abortion, contraception, and health care delivery. It will, therefore, be worthwhile to follow the developments at the nation’s highest court.

Share your thoughts on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

You might ask, why do I need to know what the Supreme Court does, it will not affect me! Well, we all know that is not exactly true. We chose these 6 cases because of their importance to ObGyns. In a number of them, the American Medical Association (AMA) or specific specialty board filed amicus curiae briefs, which suggested that the profession felt these were especially critical cases. (An amicus brief is a “friend of the Court” brief filed not by one of the affected parties, but by an organization or person with an interest or special expertise in the case.) You can find additional analysis of the 2015 term of the Supreme Court at the website of the National Register (http://www.nationalregister.org/pub/the-national-registerreport-pub/the-register-report-fall-2015/the-aca-survives-and-same-sex-marriage-thrives-the-2014-2015-supreme-court/).

1. Affordable Care Act upheld
King v Burwell was likely the Court’s most important case for physicians and their patients during the 2015 term.
At stake. The question was whether or not people who use the federal Affordable Care Act (ACA) Exchange could receive the same subsidy as those who use the state established Exchanges.¹
Final ruling. The Court said “yes,” they could receive the same subsidy, ruling in favor of King.

Key points of the case
The ACA provides for state Exchanges (an electronic marketplace in which people can compare and purchase health insurance policies), but most states did not establish Exchanges. As a result, in many states the federal Exchange became the default. Because the ACA subsidies (which help many people afford mandated insurance coverage) are processed through exchanges, the question of whether those who used the federal Exchange received the subsidy was enormously important. Subsidies for millions of individuals depended on it.

The language of the ACA provides that the insurance subsidy is available only if the person(s) enroll in “an Exchange established by the State” (emphasis added).¹ This case was about what “Exchange established by the State” means. A 6-justice majority held that the best interpretation of the statute was that it permitted subsidies through the federal Exchange. This was a difficult decision because, as the majority noted, the ACA is sloppily written. Nonetheless, the Court had to do its best to read the language in the context of the whole statute. Six justices held that the statute meant that the subsidies would cover people who signed up through federal as well as state Exchanges.

The dissenting justices essentially took the position that the language of the statute is clear. Among other things, the dissent said, it means that the words “established by the state” have no meaning at all in the statute, and it is unclear why Congress did not say “Exchange” instead of “Exchange established by the state.”

The results of the case were that the subsidies granted through the federal Exchange will continue. It will not expand the subsidies. Had the decision gone the other way, there would have been a real challenge to the future of the ACA. For that reason a number of medical and health care organizations filed amicus briefs with the Court in this case.

2. State licensing boards and antitrust
At stake. Antitrust laws prohibit combinations and conspiracies in restraint of trade. Competitors cannot come together to seek to set prices, divide the market, or prevent new competitors from entering the market. Since the 1940s, however, the Supreme Court has recognized a “state action” exception to the antitrust laws. The question before the Court this term was whether or not a state licensing board is included in the state-action immunity.²

The AMA and others filed an amicus brief in this case, noting threat to the public health if the Court disrupted state medical boards’ regulation of professional licensing and unauthorized practice.

Final ruling. The Court rejected this argument. It held that, where a state board is “controlled by active market participants” (as most state professional boards are), antitrust immunity is not automatic. For the immunity to protect boards, 2 conditions must exist, the Court held:

1. The state must have articulated a clear policy to allow the regulation that is an anticompetitive conduct (eg, licensing)

2. The state must have provided active supervision of the anticompetitive conduct. This requires that the state appoint someone or some group to approve policies of the board.

The first of these requirements often would be met by the statute setting up the board. The Court focused some attention on the second requirement. It concluded that “the adequacy of supervision otherwise will depend on all the circumstances of a case.”²

Key points of the case
In most states, this decision will require some kind of restructuring so that the professional boards are not the final decision makers but, in effect, only make recommendations to a “supervisor.” The Court gave short shrift to the AMA’s concerns that the decision might make it more difficult to attract really good professionals to the boards. The possibility of personal liability probably can be dealt with, but it deserves attention. The problems with litigation and antitrust claims, and reviews of decisions of a board (potentially by nonprofessionals) hardly can be a plus in attracting the right professionals to the boards.

This case will give rise to considerable litigation for many years. Medical boards should endeavor to get ahead of the issue by immediately studying ways in which the concerns of the Federal Trade Commissioncan be accommodated without significantly reducing the public protection that is part of well-administered professional licensing.

3. State reimbursement for Medicaid services
Medicaid is a federal-state program, and federal law requires, in part, that states must “assure that payments are … sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.”³ Providers claimed that the state had failed to establish such a payment system. A number of medical groups, including the AMA, filed amicus briefs in support of the providers.

At stake. State funding for various Medicaid services has been a problem for many health care professionals for some time. But the Medicaid law does not clearly give providers the right to file lawsuits claiming inadequate reimbursement,_⁴ so the question in this case was whether or not there was an implied right to do so.

Final ruling. The Court, in a 5-4 decision, held that Medicaid providers do not have the authority to sue states in federal courts torequire that the states provide higher Medicaid rates for services.⁴ As a practical matter, this decision leaves with the states broad authority to set Medicaid reimbursement rates. It is possible, of course, that in the future Congress would change the law to grant such rights or more clearly set reimbursement rates.

4. False Claims Act cases
Unfortunately, False Claims Act cases occur in health care. False claims transpire when someone (or an organization) presents to the government a claim for payment that is not legitimate or is for inadequate or low quality services. False claims include everything from fraudulent billing for services never performed to a pharmaceutical company’s promotion of a drug for off-label use.

The federal False Claims Act incentivizes private whistleblowers (often disgruntled employees) to initiate false claims lawsuits. (The government may then choose to take over the false claims or allow the private whistleblower to pursue them.)

At stake. Because Medicare and Medicaid are federally financed programs, it is common for providers who participate in those programs to be subject to false claims.⁵ This term the Court heard an important False Claims Act case involving the statute of limitations and multiple claims based on the same activity. The AMA joined an amicus brief urging the Court to prohibit both kinds of expansion.

Final ruling. The Court agreed that the statute of limitations for these claims should not be extended, but it did determine that the “first-to-file” limitation in the statute “keeps new claims out of court only while related claims are still alive, not in perpetuity.”⁵ The result of this second holding is that the “firstto-file” rule does not preclude another false claims suit that is duplicative to be filed as soon as the prior suit is no longer pending.

It is not clear that the practical effect of the decision will be great, but it may in some cases open up clinicians to multiple, serial lawsuits over the same claims.

5. Pregnancy and employment discrimination
The federal Pregnancy Discrimination Act (PDA) prohibits discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” It also requires that employers treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

At stake. United Parcel Service (UPS) declined to give a pregnant employee a “light duty” accommodation during pregnancy so that she could avoid having to lift heavy packages. But it had given other employees just that kind of accommodation when they were injured or lost certification to drive a delivery truck. The suit claimed violation of the PDA.⁶

Final ruling. The Court held that UPS violated the PDA by giving some employees this accommodation but refusing it to pregnant workers who requested it.6 Once an organization voluntarily grants a particular accommodation to, for example, a temporarily injured worker, it may be required to provide similar accommodation to pregnant workers. The case probably will increase employment protection for pregnant women.

6. Children “testifying” in abuse cases
All states require physicians and teachers, among others, to report suspected child abuse. An ongoing question has been whether those reporters may be called to testify about what the child said at the time of abuse discovery/suspicion. This case involved a teacher, but it could as easily have been a physician.⁷

Key points of the case. Teachers found suspicious injuries on 3-year-old L.P. The child gave conflicting statements about what happened, but claimed that Clark had hurt him. At Clark’s criminal trial, L.P. did not testify, but the state wanted to introduce L.P.’s statements to the teachers as evidence of Clark’s guilt.

At stake. The question was whether or not this introduction would violate the right of Clark to “confront his accuser” as guaranteed by the Constitution.

Final ruling. All 9 justices said it was proper to allow L.P.’s statements to be introduced at trial.⁷ Essentially this was permitted because the primary purpose of L.P.’s statements was not to gather testimony to be presented at trial.

The final opinion creates incentives for some prosecutors to make abuse victims unavailable in order to allow their testimony by hearsay. Aside from the legal technicalities, the likelihood of wrongful convictions under such a system must be considered for the long run.

Other major 2015 Supreme Court decisions
- The Constitution requires states to recognize same-sex marriages and also accept such marriages performed in other states.¹ (The American Medical Association joined an amicus brief in this case.)
- The Court turned down the appeal of several inmates who had received lethal injection death sentences. They challenged the mix of drugs that Oklahoma planned to use to execute them.²
- In 2 cases justices went out of the way to raise questions about the constitutionality of the death penalty. This may suggest that the Court will take up this issue in the near future.^2,3
- Federal housing discrimination laws were expanded to cases in which there is “disparate impact” discrimination.⁴
- The Court narrowed prosecution for “threatening” statements in social network/Internet communications by holding that negligence in the communication is not sufficient for conviction under federal law.⁵
- The Court held that the Environmental Protection Agency violated the Clean Air Act with its power plant emission regulations because it failed to do a proper cost-benefit analysis.⁶

References
1. Obergefell et al v Hodges, Director, Ohio Department of Health et al, No. 14–556 (2015). http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf. Accessed December 14, 2015.
2. Glossip et al v Gross et al, No. 14–7955 (2015). http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf. Accessed December 14, 2015.
3. Davis, Acting Worden v Ayala, No. 13–1428 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf. Accessed December 14, 2015.
4. Texas Department of Housing and Community Affairs et al v Inclusive Communities Project, Inc et al, No. 13–1371 (2015). http://www.supremecourt.gov/opinions/14pdf/13-1371_8m58.pdf. Accessed December 14, 2015.
5. Elonis v United States, No. 13–983 (2015). http://www.supremecourt.gov/opinions/14pdf/13-983_7148.pdf. Accessed December 14, 2015.
6. Michigan et al v Environmental Protection Agency et al, No. 14–46 (2015). http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf. Accessed December 14, 2015.

What’s coming in 2016
This term of the Supreme Court is a reminder of how important the decisions of the Court are to the work of physicians and ObGyns in particular. This trend is continuing—the Court already has, for the next term, accepted cases regarding abortion, contraception, and health care delivery. It will, therefore, be worthwhile to follow the developments at the nation’s highest court.

Share your thoughts on this article! Send your Letter to the Editor to [email protected]. Please include your name and the city and state in which you practice.

Patient denies consent to endometriosis treatment
A woman underwent laparoscopic surgery to remove an ovarian cyst. During surgery, the gynecologist found endometriosis and used electrosurgery to destroy the implants. Following extensive electrosurgery, a hemorrhage occurred. The gynecologist placed 5 large clips to control bleeding. The patient was discharged. When she returned to the hospital in pain, she was sent home again. She visited another emergency department (ED), where a clip was found to have blocked a ureter. She underwent ureteroneocystostomy to repair the damage. The patient now reports incontinence, a ligated ureter, and extensive scar tissue, which may keep her from being able to become pregnant.

Patient’s claim She only consented to ovarian cyst removal, not to any other procedures. The gynecologist was negligent in performing electrosurgery and placing the clips. A urologist should have checked for injury.

Physician’s defense When a patient agrees to laparoscopic surgery, she also agrees to exploratory abdominal surgery. The gynecologist performs electrosurgery to treat endometriosis in 30% to 60% of her surgical cases. Electrosurgery was essential to stop the patient’s pain. The clips were carefully placed when treating the hemorrhage.

Verdict A $206,886 California verdict was returned against the gynecologist.

Eclampsia, death: $6.9M settlement
A mother delivered a healthy baby on May 21. Twice in the week following delivery, she returned to the ED reporting shortness of breath, swollen legs, and elevated blood pressure. Pulmonary embolism was excluded both times. After the second visit, she was discharged with a diagnosis of shortness of breath of unknown etiology. The patient’s ObGyn was not contacted nor was urinalysis performed. On June 1, she suffered seizures and brain injury; she died on June 10.

Estate’s claim The ED physicians failed to diagnose and treat eclampsia.

Defendant’s defense The case was settled early in the trial.

Verdict A $6.9 million Illinois settlement was reached with the hospital.

Child has CP: $8M settlement
At 40 1/7 weeks’ gestation, labor was induced in an obese woman who had a heart condition. Over the next 36 hours, dinoprostone and oxytocin were administered, but her cervix only dilated to 2 cm. Two days later, the fetal heart rate reached 160 bpm. The ObGyn ordered terbutaline in anticipation of cesarean delivery, but he did not come to the hospital. The fetal heart rate continued to rise and then bradycardia occurred. When notified, the ObGyn came to the hospital for an emergency cesarean delivery. The child was severely depressed at birth with Apgar scores of 0, 1, and 2 at 1, 5, and 10 minutes, respectively. Magnetic resonance imaging at 23 days showed distinct hypoxic ischemic injury in the infant. Cerebral palsy was later diagnosed. The child is nonambulatory with significant cognitive impairment.

Parents’ claim Failure to perform cesarean delivery in a timely manner caused injury to the child.

Defendant’s defense The case was settled during the trial.

Verdict An $8 million Wisconsin settlement was reached with the medical center and physician group.

Infant has a stroke: $3M settlement
A 26-year-old diabetic woman was referred to a maternal-fetal medicine (MFM) specialist. She had been hospitalized for nausea and dehydration several times during her pregnancy, but it appeared that fetal development was normal.

As labor progressed, fetal distress was diagnosed in the setting of low blood pressure. When notified, the MFM immediately ordered an emergency cesarean delivery. A few days after birth, it was determined that the child had a stroke in utero.

Parents’ claim Emergency cesarean delivery should have been performed earlier. Hospital staff did not communicate fetal distress to the MFM in a timely manner.

Defendant’s defense The case was settled at trial.

Verdict A $3 million Connecticut settlement was reached with the hospital.

Patient denies consent to endometriosis treatment
A woman underwent laparoscopic surgery to remove an ovarian cyst. During surgery, the gynecologist found endometriosis and used electrosurgery to destroy the implants. Following extensive electrosurgery, a hemorrhage occurred. The gynecologist placed 5 large clips to control bleeding. The patient was discharged. When she returned to the hospital in pain, she was sent home again. She visited another emergency department (ED), where a clip was found to have blocked a ureter. She underwent ureteroneocystostomy to repair the damage. The patient now reports incontinence, a ligated ureter, and extensive scar tissue, which may keep her from being able to become pregnant.

Patient’s claim She only consented to ovarian cyst removal, not to any other procedures. The gynecologist was negligent in performing electrosurgery and placing the clips. A urologist should have checked for injury.

Physician’s defense When a patient agrees to laparoscopic surgery, she also agrees to exploratory abdominal surgery. The gynecologist performs electrosurgery to treat endometriosis in 30% to 60% of her surgical cases. Electrosurgery was essential to stop the patient’s pain. The clips were carefully placed when treating the hemorrhage.

Verdict A $206,886 California verdict was returned against the gynecologist.

Eclampsia, death: $6.9M settlement
A mother delivered a healthy baby on May 21. Twice in the week following delivery, she returned to the ED reporting shortness of breath, swollen legs, and elevated blood pressure. Pulmonary embolism was excluded both times. After the second visit, she was discharged with a diagnosis of shortness of breath of unknown etiology. The patient’s ObGyn was not contacted nor was urinalysis performed. On June 1, she suffered seizures and brain injury; she died on June 10.

Estate’s claim The ED physicians failed to diagnose and treat eclampsia.

Defendant’s defense The case was settled early in the trial.

Verdict A $6.9 million Illinois settlement was reached with the hospital.

Child has CP: $8M settlement
At 40 1/7 weeks’ gestation, labor was induced in an obese woman who had a heart condition. Over the next 36 hours, dinoprostone and oxytocin were administered, but her cervix only dilated to 2 cm. Two days later, the fetal heart rate reached 160 bpm. The ObGyn ordered terbutaline in anticipation of cesarean delivery, but he did not come to the hospital. The fetal heart rate continued to rise and then bradycardia occurred. When notified, the ObGyn came to the hospital for an emergency cesarean delivery. The child was severely depressed at birth with Apgar scores of 0, 1, and 2 at 1, 5, and 10 minutes, respectively. Magnetic resonance imaging at 23 days showed distinct hypoxic ischemic injury in the infant. Cerebral palsy was later diagnosed. The child is nonambulatory with significant cognitive impairment.

Parents’ claim Failure to perform cesarean delivery in a timely manner caused injury to the child.

Defendant’s defense The case was settled during the trial.

Verdict An $8 million Wisconsin settlement was reached with the medical center and physician group.

Infant has a stroke: $3M settlement
A 26-year-old diabetic woman was referred to a maternal-fetal medicine (MFM) specialist. She had been hospitalized for nausea and dehydration several times during her pregnancy, but it appeared that fetal development was normal.

As labor progressed, fetal distress was diagnosed in the setting of low blood pressure. When notified, the MFM immediately ordered an emergency cesarean delivery. A few days after birth, it was determined that the child had a stroke in utero.

Parents’ claim Emergency cesarean delivery should have been performed earlier. Hospital staff did not communicate fetal distress to the MFM in a timely manner.

Defendant’s defense The case was settled at trial.

Verdict A $3 million Connecticut settlement was reached with the hospital.

Patient denies consent to endometriosis treatment
A woman underwent laparoscopic surgery to remove an ovarian cyst. During surgery, the gynecologist found endometriosis and used electrosurgery to destroy the implants. Following extensive electrosurgery, a hemorrhage occurred. The gynecologist placed 5 large clips to control bleeding. The patient was discharged. When she returned to the hospital in pain, she was sent home again. She visited another emergency department (ED), where a clip was found to have blocked a ureter. She underwent ureteroneocystostomy to repair the damage. The patient now reports incontinence, a ligated ureter, and extensive scar tissue, which may keep her from being able to become pregnant.

Patient’s claim She only consented to ovarian cyst removal, not to any other procedures. The gynecologist was negligent in performing electrosurgery and placing the clips. A urologist should have checked for injury.

Physician’s defense When a patient agrees to laparoscopic surgery, she also agrees to exploratory abdominal surgery. The gynecologist performs electrosurgery to treat endometriosis in 30% to 60% of her surgical cases. Electrosurgery was essential to stop the patient’s pain. The clips were carefully placed when treating the hemorrhage.

Verdict A $206,886 California verdict was returned against the gynecologist.

Eclampsia, death: $6.9M settlement
A mother delivered a healthy baby on May 21. Twice in the week following delivery, she returned to the ED reporting shortness of breath, swollen legs, and elevated blood pressure. Pulmonary embolism was excluded both times. After the second visit, she was discharged with a diagnosis of shortness of breath of unknown etiology. The patient’s ObGyn was not contacted nor was urinalysis performed. On June 1, she suffered seizures and brain injury; she died on June 10.

Estate’s claim The ED physicians failed to diagnose and treat eclampsia.

Defendant’s defense The case was settled early in the trial.

Verdict A $6.9 million Illinois settlement was reached with the hospital.

Child has CP: $8M settlement
At 40 1/7 weeks’ gestation, labor was induced in an obese woman who had a heart condition. Over the next 36 hours, dinoprostone and oxytocin were administered, but her cervix only dilated to 2 cm. Two days later, the fetal heart rate reached 160 bpm. The ObGyn ordered terbutaline in anticipation of cesarean delivery, but he did not come to the hospital. The fetal heart rate continued to rise and then bradycardia occurred. When notified, the ObGyn came to the hospital for an emergency cesarean delivery. The child was severely depressed at birth with Apgar scores of 0, 1, and 2 at 1, 5, and 10 minutes, respectively. Magnetic resonance imaging at 23 days showed distinct hypoxic ischemic injury in the infant. Cerebral palsy was later diagnosed. The child is nonambulatory with significant cognitive impairment.

Parents’ claim Failure to perform cesarean delivery in a timely manner caused injury to the child.

Defendant’s defense The case was settled during the trial.

Verdict An $8 million Wisconsin settlement was reached with the medical center and physician group.

Infant has a stroke: $3M settlement
A 26-year-old diabetic woman was referred to a maternal-fetal medicine (MFM) specialist. She had been hospitalized for nausea and dehydration several times during her pregnancy, but it appeared that fetal development was normal.

As labor progressed, fetal distress was diagnosed in the setting of low blood pressure. When notified, the MFM immediately ordered an emergency cesarean delivery. A few days after birth, it was determined that the child had a stroke in utero.

Parents’ claim Emergency cesarean delivery should have been performed earlier. Hospital staff did not communicate fetal distress to the MFM in a timely manner.

Defendant’s defense The case was settled at trial.

Verdict A $3 million Connecticut settlement was reached with the hospital.

A Pain in the Butt

A 75-year-old man presented to the ED complaining of low back pain radiating to his right buttock and leg. There was no history of trauma or overuse. His medical history was significant for hypertension and benign prostatic hypertrophy. Regarding social history, the patient stated that he had quit smoking 20 years prior and only drank alcohol on occasion. He denied any medication allergies.

On physical examination, the patient’s vital signs were: pulse 98 beats/minute; blood pressure, 132/82 mm Hg; respiratory rate, 18 breaths/minute; and temperature, 99.8°F. The head, eyes, ears, nose, and throat examination, and pulmonary, cardiovascular, and abdominal examinations were all normal. On examination of the lower back, the patient exhibited mild tenderness of the right paraspinal lumbar muscles without midline tenderness. He had normal and equal strength of the lower extremities bilaterally. The patient’s buttocks were not examined during this visit.

The emergency physician (EP) felt the patient’s history and physical examination were consistent with a lumbar radiculopathy, and contacted the patient’s primary care physician (PCP) to communicate his impression. Although the PCP was aware that his patient had recently complained of chills, night sweats, and pain radiating from the hip to the anus, he did not communicate this information to the EP. Unfortunately, the patient also did not relate these complaints to the EP. After the EP’s consultation with the PCP, the patient was prescribed an analgesic, referred to an orthopedic surgeon, and discharged home.

Two days later, the patient returned to the same ED via emergency medical services, this time with altered mental status, fever, and hypotension. He was found to have necrotizing fasciitis of the right buttock. The patient received intravenous fluid resuscitation and broad-spectrum antibiotics, and was taken immediately to the operating room. Unfortunately, he did not survive.

The patient’s estate sued the first EP for failure to visualize and palpate the buttocks area and for failure to diagnose an infection of the right buttocks. The plaintiff further argued that the patient would have survived if he had been properly diagnosed and treated at the initial ED visit. The defense argued the patient received a thorough history and physical examination and that the diagnosis of lumbar radiculopathy was consistent with the patient’s clinical presentation. The defense also argued that the patient never reported any complaints or indication of a buttock infection. The case was settled prior to trial for nearly $600,000.

Discussion

The second important point, examining the area of primary complaint, may sound simple, straightforward, and just plain common sense. However, this can be very challenging in the reality of today’s practice of emergency medicine as EPs are often called upon to perform entire histories and physical examinations on patients in hallway beds. Gone are the days when every patient was undressed and placed in a gown in a private area or room. With the emphasis on maintaining patients with relatively minor complaints “vertical” to improve throughput times, the EP is frequently forced to examine such patients fully clothed. This places the EP at high risk for misdiagnosis or a missed diagnosis. In the same study by Kachalia et al,¹ failure to perform an adequate medical history or physical examination accounted for 42% of all diagnostic errors in the ED. Recognizing the challenge of examining the point of complaint is easy—solving the issue, however, will take all of a hospital’s resources.

Stealing Is Bad for Your Health

A 19-year-old man presented to the ED complaining of left eye pain, foreign body sensation, and tearing. He stated that when he was cleaning his garage approximately 3 hours prior to presentation, a cardboard box had fallen on his head, scattering its contents. Immediately after this occurrence, the patient experienced onset of a foreign body sensation and pain in his left eye. He further noted that he had attempted to irrigate his left eye with tap water, but it did not relieve the pain. After several hours of discomfort, the patient decided to come to the ED. He denied any other injuries or complaints, was in good health, on no medications, and had no known medication allergies. He also denied wearing contacts or corrective lenses.

On physical examination, the patient’s left eye was closed, and he appeared to be somewhat uncomfortable. His vital signs were all normal. His visual acuity was 20/20 in the right eye and 20/60 in the left eye, which was due to tearing and blurriness from the injury. To facilitate the examination, the EP placed two drops of proparacaine hydrochloride ophthalmic solution 0.5% in both of the patient’s eyes, which provided immediate and near total relief of the left eye pain. On fluorescein and slit-lamp examination, the EP found a small foreign body at approximately the seven o’clock position on the cornea, as well as a surrounding abrasion. The corneal anterior chamber was normal. The EP removed the foreign body, prescribed a topical ophthalmic antibiotic cream. and instructed the patient to return to the ED in 24 hours for a recheck. The EP also instructed the patient to take ibuprofen for any associated pain.

While waiting to be discharged, the patient took the vial of proparacaine that had been left on the counter in the room. He did so without informing anyone and without permission. After the nurse returned to the room and gave the patient his discharge instructions, he was released home. Neither the nurse nor the physician realized the patient had stolen the topical anesthetic.

The patient sued the EP for leaving the “miracle” pain-relief medication in the room and thereby facilitating his actions. The plaintiff argued that the immediate and complete pain-relief effects of the medication were too tempting for a nonmedical person to resist, and that the drug should not have been made available to him under any circumstance. The EP argued the patient stole the medication and that any resulting injury was completely the result of the patient’s own actions. The suit was eventually dropped.

Discussion

It is unfortunate that this ever became a malpractice case, since it is clear to any layman that the stealing of medications is inappropriate and illegal; moreover, any damages resulting from that action are completely the responsibility of the transgressor. With that said, a significant amount of time, discomfort, and inconvenience could have been avoided had the nurse or physician simply removed the medication from the room. While I certainly do not think this is required from a medical-legal standpoint, it is a good common-sense practice.

Corneal abrasions and corneal foreign bodies are very uncomfortable, and medications such as nonsteroidal anti-inflammatory drugs or acetaminophen only provide partial pain relief. It is easy to see how a young person, lacking any medical knowledge or the concepts of adverse side effects or toxicity, would be tempted in such a situation. In retrospect, it would probably have been best to have avoided leaving the medication within the patient’s reach in the first place.

With respect to evaluating and treating corneal abrasions, the most commonly used topical ophthalmic anesthetics are proparacaine and tetracaine. When used appropriately and in the hands of trained healthcare workers, these drugs are safe, effective, and exhibit nearly no side effects. However, as this case demonstrates, these drugs can be toxic when abused. The most common toxicities are to the ocular surface and include superficial punctate keratitis, persistent epithelial defects, stromal infiltrates, and corneal edema. More serious injuries can also occur, such as deep corneal infiltrates, ulceration, and eye perforation.¹ The toxic effects associated with these drugs are the reason these medications are never prescribed for home use.

A Pain in the Butt

A 75-year-old man presented to the ED complaining of low back pain radiating to his right buttock and leg. There was no history of trauma or overuse. His medical history was significant for hypertension and benign prostatic hypertrophy. Regarding social history, the patient stated that he had quit smoking 20 years prior and only drank alcohol on occasion. He denied any medication allergies.

On physical examination, the patient’s vital signs were: pulse 98 beats/minute; blood pressure, 132/82 mm Hg; respiratory rate, 18 breaths/minute; and temperature, 99.8°F. The head, eyes, ears, nose, and throat examination, and pulmonary, cardiovascular, and abdominal examinations were all normal. On examination of the lower back, the patient exhibited mild tenderness of the right paraspinal lumbar muscles without midline tenderness. He had normal and equal strength of the lower extremities bilaterally. The patient’s buttocks were not examined during this visit.

The emergency physician (EP) felt the patient’s history and physical examination were consistent with a lumbar radiculopathy, and contacted the patient’s primary care physician (PCP) to communicate his impression. Although the PCP was aware that his patient had recently complained of chills, night sweats, and pain radiating from the hip to the anus, he did not communicate this information to the EP. Unfortunately, the patient also did not relate these complaints to the EP. After the EP’s consultation with the PCP, the patient was prescribed an analgesic, referred to an orthopedic surgeon, and discharged home.

Two days later, the patient returned to the same ED via emergency medical services, this time with altered mental status, fever, and hypotension. He was found to have necrotizing fasciitis of the right buttock. The patient received intravenous fluid resuscitation and broad-spectrum antibiotics, and was taken immediately to the operating room. Unfortunately, he did not survive.

The patient’s estate sued the first EP for failure to visualize and palpate the buttocks area and for failure to diagnose an infection of the right buttocks. The plaintiff further argued that the patient would have survived if he had been properly diagnosed and treated at the initial ED visit. The defense argued the patient received a thorough history and physical examination and that the diagnosis of lumbar radiculopathy was consistent with the patient’s clinical presentation. The defense also argued that the patient never reported any complaints or indication of a buttock infection. The case was settled prior to trial for nearly $600,000.

Discussion

The second important point, examining the area of primary complaint, may sound simple, straightforward, and just plain common sense. However, this can be very challenging in the reality of today’s practice of emergency medicine as EPs are often called upon to perform entire histories and physical examinations on patients in hallway beds. Gone are the days when every patient was undressed and placed in a gown in a private area or room. With the emphasis on maintaining patients with relatively minor complaints “vertical” to improve throughput times, the EP is frequently forced to examine such patients fully clothed. This places the EP at high risk for misdiagnosis or a missed diagnosis. In the same study by Kachalia et al,¹ failure to perform an adequate medical history or physical examination accounted for 42% of all diagnostic errors in the ED. Recognizing the challenge of examining the point of complaint is easy—solving the issue, however, will take all of a hospital’s resources.

Stealing Is Bad for Your Health

A 19-year-old man presented to the ED complaining of left eye pain, foreign body sensation, and tearing. He stated that when he was cleaning his garage approximately 3 hours prior to presentation, a cardboard box had fallen on his head, scattering its contents. Immediately after this occurrence, the patient experienced onset of a foreign body sensation and pain in his left eye. He further noted that he had attempted to irrigate his left eye with tap water, but it did not relieve the pain. After several hours of discomfort, the patient decided to come to the ED. He denied any other injuries or complaints, was in good health, on no medications, and had no known medication allergies. He also denied wearing contacts or corrective lenses.

On physical examination, the patient’s left eye was closed, and he appeared to be somewhat uncomfortable. His vital signs were all normal. His visual acuity was 20/20 in the right eye and 20/60 in the left eye, which was due to tearing and blurriness from the injury. To facilitate the examination, the EP placed two drops of proparacaine hydrochloride ophthalmic solution 0.5% in both of the patient’s eyes, which provided immediate and near total relief of the left eye pain. On fluorescein and slit-lamp examination, the EP found a small foreign body at approximately the seven o’clock position on the cornea, as well as a surrounding abrasion. The corneal anterior chamber was normal. The EP removed the foreign body, prescribed a topical ophthalmic antibiotic cream. and instructed the patient to return to the ED in 24 hours for a recheck. The EP also instructed the patient to take ibuprofen for any associated pain.

While waiting to be discharged, the patient took the vial of proparacaine that had been left on the counter in the room. He did so without informing anyone and without permission. After the nurse returned to the room and gave the patient his discharge instructions, he was released home. Neither the nurse nor the physician realized the patient had stolen the topical anesthetic.

The patient sued the EP for leaving the “miracle” pain-relief medication in the room and thereby facilitating his actions. The plaintiff argued that the immediate and complete pain-relief effects of the medication were too tempting for a nonmedical person to resist, and that the drug should not have been made available to him under any circumstance. The EP argued the patient stole the medication and that any resulting injury was completely the result of the patient’s own actions. The suit was eventually dropped.

Discussion

It is unfortunate that this ever became a malpractice case, since it is clear to any layman that the stealing of medications is inappropriate and illegal; moreover, any damages resulting from that action are completely the responsibility of the transgressor. With that said, a significant amount of time, discomfort, and inconvenience could have been avoided had the nurse or physician simply removed the medication from the room. While I certainly do not think this is required from a medical-legal standpoint, it is a good common-sense practice.

Corneal abrasions and corneal foreign bodies are very uncomfortable, and medications such as nonsteroidal anti-inflammatory drugs or acetaminophen only provide partial pain relief. It is easy to see how a young person, lacking any medical knowledge or the concepts of adverse side effects or toxicity, would be tempted in such a situation. In retrospect, it would probably have been best to have avoided leaving the medication within the patient’s reach in the first place.

With respect to evaluating and treating corneal abrasions, the most commonly used topical ophthalmic anesthetics are proparacaine and tetracaine. When used appropriately and in the hands of trained healthcare workers, these drugs are safe, effective, and exhibit nearly no side effects. However, as this case demonstrates, these drugs can be toxic when abused. The most common toxicities are to the ocular surface and include superficial punctate keratitis, persistent epithelial defects, stromal infiltrates, and corneal edema. More serious injuries can also occur, such as deep corneal infiltrates, ulceration, and eye perforation.¹ The toxic effects associated with these drugs are the reason these medications are never prescribed for home use.

A Pain in the Butt

A 75-year-old man presented to the ED complaining of low back pain radiating to his right buttock and leg. There was no history of trauma or overuse. His medical history was significant for hypertension and benign prostatic hypertrophy. Regarding social history, the patient stated that he had quit smoking 20 years prior and only drank alcohol on occasion. He denied any medication allergies.

On physical examination, the patient’s vital signs were: pulse 98 beats/minute; blood pressure, 132/82 mm Hg; respiratory rate, 18 breaths/minute; and temperature, 99.8°F. The head, eyes, ears, nose, and throat examination, and pulmonary, cardiovascular, and abdominal examinations were all normal. On examination of the lower back, the patient exhibited mild tenderness of the right paraspinal lumbar muscles without midline tenderness. He had normal and equal strength of the lower extremities bilaterally. The patient’s buttocks were not examined during this visit.

The emergency physician (EP) felt the patient’s history and physical examination were consistent with a lumbar radiculopathy, and contacted the patient’s primary care physician (PCP) to communicate his impression. Although the PCP was aware that his patient had recently complained of chills, night sweats, and pain radiating from the hip to the anus, he did not communicate this information to the EP. Unfortunately, the patient also did not relate these complaints to the EP. After the EP’s consultation with the PCP, the patient was prescribed an analgesic, referred to an orthopedic surgeon, and discharged home.

Two days later, the patient returned to the same ED via emergency medical services, this time with altered mental status, fever, and hypotension. He was found to have necrotizing fasciitis of the right buttock. The patient received intravenous fluid resuscitation and broad-spectrum antibiotics, and was taken immediately to the operating room. Unfortunately, he did not survive.

The patient’s estate sued the first EP for failure to visualize and palpate the buttocks area and for failure to diagnose an infection of the right buttocks. The plaintiff further argued that the patient would have survived if he had been properly diagnosed and treated at the initial ED visit. The defense argued the patient received a thorough history and physical examination and that the diagnosis of lumbar radiculopathy was consistent with the patient’s clinical presentation. The defense also argued that the patient never reported any complaints or indication of a buttock infection. The case was settled prior to trial for nearly $600,000.

Discussion

The second important point, examining the area of primary complaint, may sound simple, straightforward, and just plain common sense. However, this can be very challenging in the reality of today’s practice of emergency medicine as EPs are often called upon to perform entire histories and physical examinations on patients in hallway beds. Gone are the days when every patient was undressed and placed in a gown in a private area or room. With the emphasis on maintaining patients with relatively minor complaints “vertical” to improve throughput times, the EP is frequently forced to examine such patients fully clothed. This places the EP at high risk for misdiagnosis or a missed diagnosis. In the same study by Kachalia et al,¹ failure to perform an adequate medical history or physical examination accounted for 42% of all diagnostic errors in the ED. Recognizing the challenge of examining the point of complaint is easy—solving the issue, however, will take all of a hospital’s resources.

Stealing Is Bad for Your Health

A 19-year-old man presented to the ED complaining of left eye pain, foreign body sensation, and tearing. He stated that when he was cleaning his garage approximately 3 hours prior to presentation, a cardboard box had fallen on his head, scattering its contents. Immediately after this occurrence, the patient experienced onset of a foreign body sensation and pain in his left eye. He further noted that he had attempted to irrigate his left eye with tap water, but it did not relieve the pain. After several hours of discomfort, the patient decided to come to the ED. He denied any other injuries or complaints, was in good health, on no medications, and had no known medication allergies. He also denied wearing contacts or corrective lenses.

On physical examination, the patient’s left eye was closed, and he appeared to be somewhat uncomfortable. His vital signs were all normal. His visual acuity was 20/20 in the right eye and 20/60 in the left eye, which was due to tearing and blurriness from the injury. To facilitate the examination, the EP placed two drops of proparacaine hydrochloride ophthalmic solution 0.5% in both of the patient’s eyes, which provided immediate and near total relief of the left eye pain. On fluorescein and slit-lamp examination, the EP found a small foreign body at approximately the seven o’clock position on the cornea, as well as a surrounding abrasion. The corneal anterior chamber was normal. The EP removed the foreign body, prescribed a topical ophthalmic antibiotic cream. and instructed the patient to return to the ED in 24 hours for a recheck. The EP also instructed the patient to take ibuprofen for any associated pain.

While waiting to be discharged, the patient took the vial of proparacaine that had been left on the counter in the room. He did so without informing anyone and without permission. After the nurse returned to the room and gave the patient his discharge instructions, he was released home. Neither the nurse nor the physician realized the patient had stolen the topical anesthetic.

The patient sued the EP for leaving the “miracle” pain-relief medication in the room and thereby facilitating his actions. The plaintiff argued that the immediate and complete pain-relief effects of the medication were too tempting for a nonmedical person to resist, and that the drug should not have been made available to him under any circumstance. The EP argued the patient stole the medication and that any resulting injury was completely the result of the patient’s own actions. The suit was eventually dropped.

Discussion

It is unfortunate that this ever became a malpractice case, since it is clear to any layman that the stealing of medications is inappropriate and illegal; moreover, any damages resulting from that action are completely the responsibility of the transgressor. With that said, a significant amount of time, discomfort, and inconvenience could have been avoided had the nurse or physician simply removed the medication from the room. While I certainly do not think this is required from a medical-legal standpoint, it is a good common-sense practice.

Corneal abrasions and corneal foreign bodies are very uncomfortable, and medications such as nonsteroidal anti-inflammatory drugs or acetaminophen only provide partial pain relief. It is easy to see how a young person, lacking any medical knowledge or the concepts of adverse side effects or toxicity, would be tempted in such a situation. In retrospect, it would probably have been best to have avoided leaving the medication within the patient’s reach in the first place.

With respect to evaluating and treating corneal abrasions, the most commonly used topical ophthalmic anesthetics are proparacaine and tetracaine. When used appropriately and in the hands of trained healthcare workers, these drugs are safe, effective, and exhibit nearly no side effects. However, as this case demonstrates, these drugs can be toxic when abused. The most common toxicities are to the ocular surface and include superficial punctate keratitis, persistent epithelial defects, stromal infiltrates, and corneal edema. More serious injuries can also occur, such as deep corneal infiltrates, ulceration, and eye perforation.¹ The toxic effects associated with these drugs are the reason these medications are never prescribed for home use.

Dear Dr. Mossman,

Psychiatrists should not reveal what their patients say except to avert a threat to health or safety or to report abuse. So, how can psy­chiatrists be subpoenaed to provide informa­tion for a trial? If I receive a subpoena, how can I comply without violating patient privacy? If I have to go to court, can I “plead the Fifth”?

Submitted by “Dr. S”

Physicians who are served with a sub­poena feel upset for the reason Dr. S described: Complying with a sub­poena seems to violate the obligation to pro­tect patients’ privacy. But physicians can’t “plead the Fifth” under these circumstances, because the Fifth Amendment to the U.S. Constitution only bars forcing someone to give self-incriminating testimony.¹

If you receive a subpoena for information gleaned during patient care, you should not ignore it. Failing to respond might place you in contempt of court and subject you to a fine or even jail time. Yet simply comply­ing could have legal and professional impli­cations, too.

Often, a psychiatrist who receives a sub­poena should seek an attorney’s advice on how to best respond. But understanding what subpoenas are and how they work might let you feel less anxious as you go through the process of responding. With this goal in mind, this article covers:
   • what a subpoena is and isn’t
   • 2 types of privacy obligations
   • legal options
   • avoiding potential embarrassment (Box).²

What is a subpoena?
All citizens have a legal obligation to fur­nish courts with the information needed to decide legal issues.³ Statutes and legal rules dictate how such material comes to court.

Issuing a subpoena (from the Latin sub poena, “under penalty”) is one way of obtaining information needed for a legal proceeding. A subpoena ad testificandum directs the recipient to appear at a legal pro­ceeding and provide testimony. A subpoena duces tecum (“you shall bring with you”) directs the recipient to produce specific records or to appear at a legal proceeding with the records.

Usually, subpoenas are issued by attor­neys or court clerks, not by judges. As such, they are not court orders. If you receive a subpoena, you should make a timely response of some sort. But, ultimately, you might not have to release the information. Although physicians have to follow the same rules as other citizens, courts recog­nize that doctors also have professional obligations to their patients.

Confidentiality: Your reason to hesitate
Receiving a subpoena doesn’t change your obligation to protect your patient’s con­fidentiality. From the law’s standpoint, patient confidentiality is a function of the rules that govern use of information in legal proceedings.

The Privacy Rule⁴ that arose from the Health Insurance Portability and Accountability Act (HIPAA) of 1996⁵ pro­vides guidance on acceptable responses to subpoenas by “covered entities,” which includes most physicians’ practices. HIPAA permits disclosure of the minimum amount of personal information needed to fulfill the demands of a subpoena. The Table^6,7 explains HIPAA’s rules about specific responses to subpoenas, depending on their source.
 

Many states have patient privacy laws that are stricter than HIPAA rules. If you practice in one of those states, you have to follow the more stringent rule.⁸ For example, Ohio law does not let subpoenaed provid­ers tender medical records for use in a grand jury proceeding without a release signed by the patient, although HIPAA would allow this (Table).^6,7 Out of concern that “giving law enforcement unbridled access to medi­cal records could discourage patients from seeking medical treatment,” Ohio protects patient records more than HIPAA does.⁹ New York State’s privilege rules also are stricter than HIPAA¹⁰ and contain specific provisions about releasing certain types of information (eg, HIV status¹¹). State courts expect physicians to follow their laws about patient privacy and to consult attorneys to make sure that releasing information is done properly.¹²

Releasing information improperly could become grounds for legal action against you, even if you released the information in response to a subpoena. Legal action could take the form of a lawsuit for breach of con­fidentiality, a HIPAA-based complaint, a complaint to the state medical board, or all 3 of these.

Must you turn over information?
Before you testify or turn over documents, you need to verify that the legal and ethi­cal requirements for the disclosure are met—as you would for any release of patient information. You can do this by obtaining your patient’s formal, writ­ten consent for the disclosure. Before you accept the patient’s agreement, however, you might—and in most cases should— consider discussing how the disclosure could affect the patient’s well-being or your treatment relationship.

If the patient will not agree to the disclo­sure, the patient or the patient’s attorney can seek to have the subpoena modified or quashed (declared void). One tactic for doing this is by asserting doctor–patient privilege, a legal doctrine codified in most state’s laws. The privilege recognizes that, because privacy is important in medical care, stopping clinical information from automatically coming in court serves an important social purpose.¹³

The doctor–patient privilege belongs to the litigant—here, your patient—not to you, so your patient has to raise the objection to releasing information.¹⁴ Also, the privilege is not absolute. If having the clinical information is necessary, the judge may issue a court order denying the patient’s motion to quash. Unless the judge later modifies or vacates the order, you risk being found in contempt of court if you still refuse to turn over documents demanded by the subpoena.

Fact witness or expert witness?
If the subpoena demands your testimony, the issuing party might want you to serve as a fact witness or expert witness. Persons with relevant personal knowledge to a legal proceeding can serve as fact witnesses, and testify about things they did or perceived.¹⁵ For example, a psychiatrist serving as a fact witness could recount having heard or seen a patient talking aloud as if arguing with someone when no real interlocutor was present.

A witness whom the court deems an “expert” by virtue of special knowledge, skill, experience, training, or education may offer opinions based on specific sets of facts. Courts hear such testimony when the expert’s specialized knowledge will help the jury understand the evidence or reach a verdict in a case.¹⁶ To return to the example above: a psychiatric expert witness might tell jurors that the patient’s “arguing” was evidence that she was hallucinating and suffered from schizophrenia.

If you receive a subpoena to testify about someone you have treated, you should notify the issuing party that you will pro­vide fact testimony if required to do so. You cannot be compelled to serve as an expert witness, however. In many situations, attempting to provide objective expert testi­mony about one’s own patient could create unresolvable conflicts between the obliga­tion to tell the truth and your obligation to serve your patient’s interests.¹⁷

If the subpoena requests deposition tes­timony about a patient, you probably will be able to schedule the deposition at a time that is convenient for you and the attor­neys involved. Yet you should not agree to be deposed unless (a) you have received the patient’s authorization, (b) a court has ordered you to testify despite the patient’s objection, or (c) your attorney (whom you have consulted about the situation) has advised you that providing testimony is appropriate.

If you are called as a fact witness for a trial, the attorney or court that has subpoe­naed you often will try to schedule things to minimize the time taken away from your other duties. Once in court, you can ask the judge (on the record) whether you must answer if you are asked questions about a patient who has not previously autho­rized you to release treatment information. A judge’s explicit command to respond absolves you of any further ethical obliga­tion to withhold confidential information about the patient’s care.

Bottom Line
If you receive a subpoena for records or testimony, obtaining the patient’s written authorization should allow you to release the information without violating confidentiality obligations. If your patient won’t agree to the release, if turning over information might adversely affect the patient, or if you’re not sure what to do, seek advice from an attorney who knows about medical privacy rules. That way, you can be sure you are meeting all legal and professional standards that apply.

Disclosure  
The author reports no financial relationship with any company whose products are mentioned in this article or with any manufacturers of competing products.

Dear Dr. Mossman,

Psychiatrists should not reveal what their patients say except to avert a threat to health or safety or to report abuse. So, how can psy­chiatrists be subpoenaed to provide informa­tion for a trial? If I receive a subpoena, how can I comply without violating patient privacy? If I have to go to court, can I “plead the Fifth”?

Submitted by “Dr. S”

Physicians who are served with a sub­poena feel upset for the reason Dr. S described: Complying with a sub­poena seems to violate the obligation to pro­tect patients’ privacy. But physicians can’t “plead the Fifth” under these circumstances, because the Fifth Amendment to the U.S. Constitution only bars forcing someone to give self-incriminating testimony.¹

If you receive a subpoena for information gleaned during patient care, you should not ignore it. Failing to respond might place you in contempt of court and subject you to a fine or even jail time. Yet simply comply­ing could have legal and professional impli­cations, too.

Often, a psychiatrist who receives a sub­poena should seek an attorney’s advice on how to best respond. But understanding what subpoenas are and how they work might let you feel less anxious as you go through the process of responding. With this goal in mind, this article covers:
   • what a subpoena is and isn’t
   • 2 types of privacy obligations
   • legal options
   • avoiding potential embarrassment (Box).²

What is a subpoena?
All citizens have a legal obligation to fur­nish courts with the information needed to decide legal issues.³ Statutes and legal rules dictate how such material comes to court.

Issuing a subpoena (from the Latin sub poena, “under penalty”) is one way of obtaining information needed for a legal proceeding. A subpoena ad testificandum directs the recipient to appear at a legal pro­ceeding and provide testimony. A subpoena duces tecum (“you shall bring with you”) directs the recipient to produce specific records or to appear at a legal proceeding with the records.

Usually, subpoenas are issued by attor­neys or court clerks, not by judges. As such, they are not court orders. If you receive a subpoena, you should make a timely response of some sort. But, ultimately, you might not have to release the information. Although physicians have to follow the same rules as other citizens, courts recog­nize that doctors also have professional obligations to their patients.

Confidentiality: Your reason to hesitate
Receiving a subpoena doesn’t change your obligation to protect your patient’s con­fidentiality. From the law’s standpoint, patient confidentiality is a function of the rules that govern use of information in legal proceedings.

The Privacy Rule⁴ that arose from the Health Insurance Portability and Accountability Act (HIPAA) of 1996⁵ pro­vides guidance on acceptable responses to subpoenas by “covered entities,” which includes most physicians’ practices. HIPAA permits disclosure of the minimum amount of personal information needed to fulfill the demands of a subpoena. The Table^6,7 explains HIPAA’s rules about specific responses to subpoenas, depending on their source.
 

Many states have patient privacy laws that are stricter than HIPAA rules. If you practice in one of those states, you have to follow the more stringent rule.⁸ For example, Ohio law does not let subpoenaed provid­ers tender medical records for use in a grand jury proceeding without a release signed by the patient, although HIPAA would allow this (Table).^6,7 Out of concern that “giving law enforcement unbridled access to medi­cal records could discourage patients from seeking medical treatment,” Ohio protects patient records more than HIPAA does.⁹ New York State’s privilege rules also are stricter than HIPAA¹⁰ and contain specific provisions about releasing certain types of information (eg, HIV status¹¹). State courts expect physicians to follow their laws about patient privacy and to consult attorneys to make sure that releasing information is done properly.¹²

Releasing information improperly could become grounds for legal action against you, even if you released the information in response to a subpoena. Legal action could take the form of a lawsuit for breach of con­fidentiality, a HIPAA-based complaint, a complaint to the state medical board, or all 3 of these.

Must you turn over information?
Before you testify or turn over documents, you need to verify that the legal and ethi­cal requirements for the disclosure are met—as you would for any release of patient information. You can do this by obtaining your patient’s formal, writ­ten consent for the disclosure. Before you accept the patient’s agreement, however, you might—and in most cases should— consider discussing how the disclosure could affect the patient’s well-being or your treatment relationship.

If the patient will not agree to the disclo­sure, the patient or the patient’s attorney can seek to have the subpoena modified or quashed (declared void). One tactic for doing this is by asserting doctor–patient privilege, a legal doctrine codified in most state’s laws. The privilege recognizes that, because privacy is important in medical care, stopping clinical information from automatically coming in court serves an important social purpose.¹³

The doctor–patient privilege belongs to the litigant—here, your patient—not to you, so your patient has to raise the objection to releasing information.¹⁴ Also, the privilege is not absolute. If having the clinical information is necessary, the judge may issue a court order denying the patient’s motion to quash. Unless the judge later modifies or vacates the order, you risk being found in contempt of court if you still refuse to turn over documents demanded by the subpoena.

Fact witness or expert witness?
If the subpoena demands your testimony, the issuing party might want you to serve as a fact witness or expert witness. Persons with relevant personal knowledge to a legal proceeding can serve as fact witnesses, and testify about things they did or perceived.¹⁵ For example, a psychiatrist serving as a fact witness could recount having heard or seen a patient talking aloud as if arguing with someone when no real interlocutor was present.

A witness whom the court deems an “expert” by virtue of special knowledge, skill, experience, training, or education may offer opinions based on specific sets of facts. Courts hear such testimony when the expert’s specialized knowledge will help the jury understand the evidence or reach a verdict in a case.¹⁶ To return to the example above: a psychiatric expert witness might tell jurors that the patient’s “arguing” was evidence that she was hallucinating and suffered from schizophrenia.

If you receive a subpoena to testify about someone you have treated, you should notify the issuing party that you will pro­vide fact testimony if required to do so. You cannot be compelled to serve as an expert witness, however. In many situations, attempting to provide objective expert testi­mony about one’s own patient could create unresolvable conflicts between the obliga­tion to tell the truth and your obligation to serve your patient’s interests.¹⁷

If the subpoena requests deposition tes­timony about a patient, you probably will be able to schedule the deposition at a time that is convenient for you and the attor­neys involved. Yet you should not agree to be deposed unless (a) you have received the patient’s authorization, (b) a court has ordered you to testify despite the patient’s objection, or (c) your attorney (whom you have consulted about the situation) has advised you that providing testimony is appropriate.

If you are called as a fact witness for a trial, the attorney or court that has subpoe­naed you often will try to schedule things to minimize the time taken away from your other duties. Once in court, you can ask the judge (on the record) whether you must answer if you are asked questions about a patient who has not previously autho­rized you to release treatment information. A judge’s explicit command to respond absolves you of any further ethical obliga­tion to withhold confidential information about the patient’s care.

Bottom Line
If you receive a subpoena for records or testimony, obtaining the patient’s written authorization should allow you to release the information without violating confidentiality obligations. If your patient won’t agree to the release, if turning over information might adversely affect the patient, or if you’re not sure what to do, seek advice from an attorney who knows about medical privacy rules. That way, you can be sure you are meeting all legal and professional standards that apply.

Disclosure  
The author reports no financial relationship with any company whose products are mentioned in this article or with any manufacturers of competing products.

Dear Dr. Mossman,

Psychiatrists should not reveal what their patients say except to avert a threat to health or safety or to report abuse. So, how can psy­chiatrists be subpoenaed to provide informa­tion for a trial? If I receive a subpoena, how can I comply without violating patient privacy? If I have to go to court, can I “plead the Fifth”?

Submitted by “Dr. S”

Physicians who are served with a sub­poena feel upset for the reason Dr. S described: Complying with a sub­poena seems to violate the obligation to pro­tect patients’ privacy. But physicians can’t “plead the Fifth” under these circumstances, because the Fifth Amendment to the U.S. Constitution only bars forcing someone to give self-incriminating testimony.¹

If you receive a subpoena for information gleaned during patient care, you should not ignore it. Failing to respond might place you in contempt of court and subject you to a fine or even jail time. Yet simply comply­ing could have legal and professional impli­cations, too.

Often, a psychiatrist who receives a sub­poena should seek an attorney’s advice on how to best respond. But understanding what subpoenas are and how they work might let you feel less anxious as you go through the process of responding. With this goal in mind, this article covers:
   • what a subpoena is and isn’t
   • 2 types of privacy obligations
   • legal options
   • avoiding potential embarrassment (Box).²

What is a subpoena?
All citizens have a legal obligation to fur­nish courts with the information needed to decide legal issues.³ Statutes and legal rules dictate how such material comes to court.

Issuing a subpoena (from the Latin sub poena, “under penalty”) is one way of obtaining information needed for a legal proceeding. A subpoena ad testificandum directs the recipient to appear at a legal pro­ceeding and provide testimony. A subpoena duces tecum (“you shall bring with you”) directs the recipient to produce specific records or to appear at a legal proceeding with the records.

Usually, subpoenas are issued by attor­neys or court clerks, not by judges. As such, they are not court orders. If you receive a subpoena, you should make a timely response of some sort. But, ultimately, you might not have to release the information. Although physicians have to follow the same rules as other citizens, courts recog­nize that doctors also have professional obligations to their patients.

Confidentiality: Your reason to hesitate
Receiving a subpoena doesn’t change your obligation to protect your patient’s con­fidentiality. From the law’s standpoint, patient confidentiality is a function of the rules that govern use of information in legal proceedings.

The Privacy Rule⁴ that arose from the Health Insurance Portability and Accountability Act (HIPAA) of 1996⁵ pro­vides guidance on acceptable responses to subpoenas by “covered entities,” which includes most physicians’ practices. HIPAA permits disclosure of the minimum amount of personal information needed to fulfill the demands of a subpoena. The Table^6,7 explains HIPAA’s rules about specific responses to subpoenas, depending on their source.
 

Many states have patient privacy laws that are stricter than HIPAA rules. If you practice in one of those states, you have to follow the more stringent rule.⁸ For example, Ohio law does not let subpoenaed provid­ers tender medical records for use in a grand jury proceeding without a release signed by the patient, although HIPAA would allow this (Table).^6,7 Out of concern that “giving law enforcement unbridled access to medi­cal records could discourage patients from seeking medical treatment,” Ohio protects patient records more than HIPAA does.⁹ New York State’s privilege rules also are stricter than HIPAA¹⁰ and contain specific provisions about releasing certain types of information (eg, HIV status¹¹). State courts expect physicians to follow their laws about patient privacy and to consult attorneys to make sure that releasing information is done properly.¹²

Releasing information improperly could become grounds for legal action against you, even if you released the information in response to a subpoena. Legal action could take the form of a lawsuit for breach of con­fidentiality, a HIPAA-based complaint, a complaint to the state medical board, or all 3 of these.

Must you turn over information?
Before you testify or turn over documents, you need to verify that the legal and ethi­cal requirements for the disclosure are met—as you would for any release of patient information. You can do this by obtaining your patient’s formal, writ­ten consent for the disclosure. Before you accept the patient’s agreement, however, you might—and in most cases should— consider discussing how the disclosure could affect the patient’s well-being or your treatment relationship.

If the patient will not agree to the disclo­sure, the patient or the patient’s attorney can seek to have the subpoena modified or quashed (declared void). One tactic for doing this is by asserting doctor–patient privilege, a legal doctrine codified in most state’s laws. The privilege recognizes that, because privacy is important in medical care, stopping clinical information from automatically coming in court serves an important social purpose.¹³

The doctor–patient privilege belongs to the litigant—here, your patient—not to you, so your patient has to raise the objection to releasing information.¹⁴ Also, the privilege is not absolute. If having the clinical information is necessary, the judge may issue a court order denying the patient’s motion to quash. Unless the judge later modifies or vacates the order, you risk being found in contempt of court if you still refuse to turn over documents demanded by the subpoena.

Fact witness or expert witness?
If the subpoena demands your testimony, the issuing party might want you to serve as a fact witness or expert witness. Persons with relevant personal knowledge to a legal proceeding can serve as fact witnesses, and testify about things they did or perceived.¹⁵ For example, a psychiatrist serving as a fact witness could recount having heard or seen a patient talking aloud as if arguing with someone when no real interlocutor was present.

A witness whom the court deems an “expert” by virtue of special knowledge, skill, experience, training, or education may offer opinions based on specific sets of facts. Courts hear such testimony when the expert’s specialized knowledge will help the jury understand the evidence or reach a verdict in a case.¹⁶ To return to the example above: a psychiatric expert witness might tell jurors that the patient’s “arguing” was evidence that she was hallucinating and suffered from schizophrenia.

If you receive a subpoena to testify about someone you have treated, you should notify the issuing party that you will pro­vide fact testimony if required to do so. You cannot be compelled to serve as an expert witness, however. In many situations, attempting to provide objective expert testi­mony about one’s own patient could create unresolvable conflicts between the obliga­tion to tell the truth and your obligation to serve your patient’s interests.¹⁷

If the subpoena requests deposition tes­timony about a patient, you probably will be able to schedule the deposition at a time that is convenient for you and the attor­neys involved. Yet you should not agree to be deposed unless (a) you have received the patient’s authorization, (b) a court has ordered you to testify despite the patient’s objection, or (c) your attorney (whom you have consulted about the situation) has advised you that providing testimony is appropriate.

If you are called as a fact witness for a trial, the attorney or court that has subpoe­naed you often will try to schedule things to minimize the time taken away from your other duties. Once in court, you can ask the judge (on the record) whether you must answer if you are asked questions about a patient who has not previously autho­rized you to release treatment information. A judge’s explicit command to respond absolves you of any further ethical obliga­tion to withhold confidential information about the patient’s care.

Bottom Line
If you receive a subpoena for records or testimony, obtaining the patient’s written authorization should allow you to release the information without violating confidentiality obligations. If your patient won’t agree to the release, if turning over information might adversely affect the patient, or if you’re not sure what to do, seek advice from an attorney who knows about medical privacy rules. That way, you can be sure you are meeting all legal and professional standards that apply.

Disclosure  
The author reports no financial relationship with any company whose products are mentioned in this article or with any manufacturers of competing products.