Medicolegal Issues

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by an NP. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

OUTCOME
A defense verdict was returned.

Continue for David M. Lang's comments >>

COMMENT
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatica, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia.

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95) but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after he or she leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort.

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statute of limitations, the NP was brought into the case by her own practice, through a procedure known as impleader. An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

IN SUM
Always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to potential changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

REFERENCES
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed January 16, 2015.
2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis? Ann Emerg Med. 2008;52(3):301-303.
3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by an NP. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

OUTCOME
A defense verdict was returned.

Continue for David M. Lang's comments >>

COMMENT
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatica, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia.

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95) but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after he or she leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort.

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statute of limitations, the NP was brought into the case by her own practice, through a procedure known as impleader. An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

IN SUM
Always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to potential changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

REFERENCES
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed January 16, 2015.
2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis? Ann Emerg Med. 2008;52(3):301-303.
3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 17-year-old girl with diminished appetite, abdominal pain, and vomiting presented to a pediatrics clinic in New York, where she was examined by an NP. She was found to have hematuria as well, and the NP diagnosed viral gastroenteritis.

Eight days later, the patient returned to the clinic with worsening pain. The pediatrician who examined her had her transported to a hospital, where a ruptured appendix was diagnosed. The patient underwent immediate surgery, which included resection of portions of her colon and intestines.

Despite a good recovery, the patient claimed that she suffers residual gastrointestinal dysfunction. She further claimed that the NP should have diagnosed appendicitis during her initial visit, which would have allowed for less invasive treatment.

Initially, the plaintiff brought suit against the clinic and several employees, but not the NP. She later moved to add the NP, but that motion was denied due to the statute of limitations. The clinic then impleaded the NP, arguing that it was her negligence in failing to diagnose the appendicitis.

The matter proceeded to trial against the NP and the clinic. The defendants claimed that the plaintiff’s symptoms did not suggest appendicitis at the time of the NP’s examination.

OUTCOME
A defense verdict was returned.

Continue for David M. Lang's comments >>

COMMENT
I used to tell students, “There are only two things in medicine that you need to know well: the common and the dangerous. For everything else, there is time.” I realize now that I sound like that guy from the Dos Equis commercial.

Consider this, however: If we don’t remember the difference between polymyositis and polymyalgia rheumatica, who cares? In such cases, we have time for review—and the patient will be better served by a clinician who has the intellectual curiosity to review conditions that he or she hasn’t seen in a while.

But the diseases that are both common and dangerous require our full proficiency. Basic competence requires us to be well versed in common diseases. And dangerous conditions, even if relatively rare, must be recognized and managed immediately. Entities that are common and dangerous—such as appendicitis—should enter our thoughts often.

In this case, we have a 17-year-old girl presenting to an outpatient clinic setting with abdominal pain, vomiting, and anorexia. Unfortunately, we are not given some important historical information, including duration and location of the pain and the presence or absence of pain migration. Physical exam findings are not described.

The trouble with appendicitis is that there is no single sign or symptom that can effectively diagnose it or exclude it from the differential. When evaluating a patient in a setting in which real-time laboratory testing is not generally ordered, clinicians must distinguish between self-limiting and dangerous abdominal pain. Where does that leave us in this case? Abdominal pain and vomiting are common, and ill patients frequently report anorexia.

Other clinical features associated with appendicitis may be more helpful. For example, pain migration has been described as “the most discriminating feature of the patient’s history,”¹ with a sensitivity and specificity of approximately 80%.² When present, psoas sign is fairly specific (0.95) but not sensitive (0.16).³

When evaluating patients in an outpatient setting, we have a snapshot of a disease process—a still frame of a movie. We are told what happened up to that point (with varying degrees of accuracy). But like the patient, we don’t know what will happen after he or she leaves the office: The still frame is gone, but the movie continues.

It can be helpful to inform patients of the concerning diagnoses in your differential and alert them to patterns of clinical progression that warrant return or immediate emergency department evaluation. Calling the patient to see how he or she is doing can be very useful for clinicians and generally highly valued and appreciated by patients. Here, if gastroenteritis were suspected, a phone call after a few hours of antiemetic and rehydration therapy may have been helpful to determine if the patient’s symptoms had improved. This, of course, would not be conclusive—but at least it would give the clinician additional information and the patient additional comfort.

In this case, the jury was persuaded that the NP provided good treatment and acted within the standard of care. Diagnosing appendicitis can be tricky, even under the best circumstances. The NP’s defense was probably aided by good documentation showing that appendicitis seemed less likely at the time of her evaluation. Ultimately, she performed well enough that her care withstood scrutiny from the plaintiff, the plaintiff’s expert witness, and eventually, her own practice.

This case was interesting from a legal perspective in that the plaintiff originally failed to file suit against the NP—probably resorting to liability under the theory of respondeat superior (generally, employer liability for employee actions). While the plaintiff was unsuccessful in adding the NP later, due to the statute of limitations, the NP was brought into the case by her own practice, through a procedure known as impleader. An impleader action is brought by a co-defendant. Under typical impleader rules, the defendant becomes a “third-party plaintiff” and brings suit against a “third-party defendant” (in this case, the practice and the NP, respectively).

IN SUM
Always keep important diagnoses in mind, and document well. Anticipate a changing clinical course, and instruct patients on how to respond to potential changes. In certain cases, we are well served to pick up the phone, check on the patient, and make the presentation less of a static picture and more of a dynamic movie. —DML

REFERENCES
1. Craig S, Brenner BE. Appendicitis (updated October 26, 2012). Medscape Reference. http://emedicine.medscape.com/article/773895-overview. Accessed January 16, 2015.
2. Yeh B. Evidence-based emergency medicine/rational clinical examination abstract: does this adult patient have appendicitis? Ann Emerg Med. 2008;52(3):301-303.
3. Wagner J, McKinney WP, Carpenter JL. Does this patient have appendicitis? JAMA. 1996;276(19):1589-1594.

A 57-year-old woman sustained an injury to her left shoulder during a fall down stairs. She presented to the emergency department, where a physician ordered x-rays that a radiologist interpreted as depicting a simple fracture.

The patient claimed that the radiologist misread the x-rays and that the emergency medicine (EM) physician failed to realize her pain was out of proportion to a fracture. She said the EM physician should have ordered additional tests and sought a radiologic consult. The patient contended that she had actually dislocated her shoulder and that the delay in treatment caused her condition to worsen, leaving her unable to use her left hand.

In addition to the radiologist and the EM physician, two nurses were named as defendants. The plaintiff maintained that they had failed to notify the physician when her condition deteriorated.

OUTCOME
A $2.75 million settlement was reached. The hospital, the EM physician, and the nurses were responsible for $1.5 million and the radiologist, $1.25 million.

Continue for David M. Lang's comments >>

COMMENT
Although complex regional pain syndrome (CRPS, formerly known as reflex sympathetic dystrophy) is not specifically mentioned in this case synopsis, the size of the settlement suggests that it was likely claimed as the resulting injury. CRPS is frequently a source of litigation.

Relatively minor trauma can lead to CRPS; why only certain patients subsequently develop the syndrome, however, is a mystery. What is certain is that CRPS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CRPS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because while liability may be uncertain, the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

In this case, the patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of ­out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her.  —DML

A 57-year-old woman sustained an injury to her left shoulder during a fall down stairs. She presented to the emergency department, where a physician ordered x-rays that a radiologist interpreted as depicting a simple fracture.

The patient claimed that the radiologist misread the x-rays and that the emergency medicine (EM) physician failed to realize her pain was out of proportion to a fracture. She said the EM physician should have ordered additional tests and sought a radiologic consult. The patient contended that she had actually dislocated her shoulder and that the delay in treatment caused her condition to worsen, leaving her unable to use her left hand.

In addition to the radiologist and the EM physician, two nurses were named as defendants. The plaintiff maintained that they had failed to notify the physician when her condition deteriorated.

OUTCOME
A $2.75 million settlement was reached. The hospital, the EM physician, and the nurses were responsible for $1.5 million and the radiologist, $1.25 million.

Continue for David M. Lang's comments >>

COMMENT
Although complex regional pain syndrome (CRPS, formerly known as reflex sympathetic dystrophy) is not specifically mentioned in this case synopsis, the size of the settlement suggests that it was likely claimed as the resulting injury. CRPS is frequently a source of litigation.

Relatively minor trauma can lead to CRPS; why only certain patients subsequently develop the syndrome, however, is a mystery. What is certain is that CRPS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CRPS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because while liability may be uncertain, the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

In this case, the patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of ­out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her.  —DML

A 57-year-old woman sustained an injury to her left shoulder during a fall down stairs. She presented to the emergency department, where a physician ordered x-rays that a radiologist interpreted as depicting a simple fracture.

The patient claimed that the radiologist misread the x-rays and that the emergency medicine (EM) physician failed to realize her pain was out of proportion to a fracture. She said the EM physician should have ordered additional tests and sought a radiologic consult. The patient contended that she had actually dislocated her shoulder and that the delay in treatment caused her condition to worsen, leaving her unable to use her left hand.

In addition to the radiologist and the EM physician, two nurses were named as defendants. The plaintiff maintained that they had failed to notify the physician when her condition deteriorated.

OUTCOME
A $2.75 million settlement was reached. The hospital, the EM physician, and the nurses were responsible for $1.5 million and the radiologist, $1.25 million.

Continue for David M. Lang's comments >>

COMMENT
Although complex regional pain syndrome (CRPS, formerly known as reflex sympathetic dystrophy) is not specifically mentioned in this case synopsis, the size of the settlement suggests that it was likely claimed as the resulting injury. CRPS is frequently a source of litigation.

Relatively minor trauma can lead to CRPS; why only certain patients subsequently develop the syndrome, however, is a mystery. What is certain is that CRPS is recognized as one of the most painful conditions known to humankind. Once it develops, the syndrome can result in constant, debilitating pain, the loss of a limb, and near-total decay of a patient’s quality of life.

Plaintiffs’ attorneys are quick to claim negligence and substantial damages for these patients, with their sad, compelling stories. Because the underlying pathophysiology of CRPS is unclear, liability is often hotly debated, with cases difficult to defend.

Malpractice cases generally involve two elements: liability (the presence and magnitude of the error) and damages (the severity of the injury and impact on life). CRPS cases are often considered “damages” cases, because while liability may be uncertain, the patient’s damages are very clear. An understandingly sympathetic jury panel sees the unfortunate patient’s red, swollen, misshapen limb, hears the story of the patient’s ever-present, exquisite pain, and (based largely on human emotion) infers negligence based on the magnitude of the patient’s suffering.

In this case, the patient sustained a shoulder injury in a fall that was initially treated as a fracture (presumptively proximal) but later determined to be a dislocation. Management of the injury was not described, but we can assume that if a fracture was diagnosed, the shoulder joint was immobilized. The plaintiff did not claim that there were any diminished neurovascular findings at the time of injury. We are not told whether follow-up was arranged for the patient, what the final, full diagnosis was (eg, fracture/anterior dislocation of the proximal humerus), or when/if the shoulder was actively reduced.

Under these circumstances, what could a bedside clinician have done differently? The most prominent element is the report of “pain out of proportion to the diagnosis.” When confronted with pain that seems out of proportion to a limb injury, stop and review the case. Be sure to consider occult or evolving neurovascular injury (eg, compartment syndrome, brachial plexus injury). Seek consultation and a second opinion in cases involving pain that seems intractable and out of proportion.

One quick word about pain and drug-seeking behavior. Many of us are all too familiar with patients who overstate their symptoms to obtain narcotic pain medications. Will you encounter drug seekers who embellish their level of pain to obtain narcotics? You know the answer to that question.

But it is necessary to take an injured patient’s claim of pain as stated. Don’t view yourself as “wrong” or “fooled” if patients misstate their level of pain and you respond accordingly. In many cases, there is no way to differentiate between genuine manifestations of pain and gamesmanship. To attempt to do so is dangerous because it may lead you to dismiss a patient with genuine pain for fear of being “fooled.” Don’t. Few situations will irritate a jury more than a patient with genuine pathology who is wrongly considered a “drug seeker.” Take patients at face value and act appropriately if substance misuse is later discovered.

In this case, recognition of ­out-of-control pain may have resulted in an orthopedic consultation. At minimum, that would demonstrate that the patient’s pain was taken seriously and the clinicians acted with due concern for her.  —DML

Dear Dr. Mossman,

Where I practice, most health care plans won’t pay for certain medications without giving prior authorization (PA). Completing PA forms and making telephone calls take up time that could be better spent treat­ing patients. I’m tempted to set a new policy of not doing PAs. If I do, might I face legal trouble?

Submitted by “Dr. A”

If you provide clinical care, you’ve prob­ably dealt with third-party payers who require prior authorization (PA) before they will pay for certain treatments. Dr. A is not alone in feeling exasperated about the time it takes to complete a PA.¹ After spend­ing several hours each month waiting on hold and wading through stacks of paper­work, you may feel like Dr. A and consider refusing to do any more PAs.

But is Dr. A’s proposed solution a good idea? To address this question and the frus­tration that lies behind it, we’ll take a cue from Italian film director Sergio Leone and discuss:
   • how PAs affect psychiatric care: the good, the bad, and the ugly
   • potential exposure to professional liabil­ity and ethics complaints that might result from refusing or failing to seek PA
   • strategies to reduce the burden of PAs while providing efficient, effective care.

The good
Recent decades have witnessed huge increases in spending on prescription medication. Psychotropics are no excep­tion; state Medicaid spending for anti-psychotic medication grew from <$1 bil­lion in 1995 to >$5.5 billion in 2005.²

Requiring a PA for expensive drugs is one way that third-party payers try to rein in costs and hold down insurance premi­ums. Imposing financial constraints often is just one aim of a pharmacy benefit man­agement (PBM) program. Insurers also jus­tify PBMs by pointing out that feedback to practitioners whose prescribing falls well outside the norm—in the form of mailed warnings, physician second opinions, or pharmacist consultation—can improve patient safety and encourage appropriate treatment options for enrolled patients.^3,4 Examples of such benefits include reduc­ing overuse of prescription opioids⁵ and antipsychotics among children,³ misuse of buprenorphine,⁶ and adverse effects from potentially inappropriate prescriptions.⁷

The bad
The bad news for doctors: Cost savings for payers come at the expense of pro­viders and their practices, in the form of time spent doing paperwork and talking on the phone to complete PAs or contest PA decisions.⁸ Addressing PA requests costs an estimated $83,000 per physician per year. The total administrative burden for all 835,000 physicians who practice in the United States therefore is 868,000,000 hours, or $69 billion annually.⁹

To make matters worse, PA requirements may increase the overall cost of care. After Georgia Medicaid instituted PA require­ments for second-generation antipsychotics (SGAs), average monthly per member drug costs fell $19.62, but average monthly outpa­tient treatment costs rose $31.59 per mem­ber.10 Pharmacy savings that result from requiring PAs for SGAs can be offset quickly by small increases in the hospitalization rate or emergency department visits.^9,11

The ugly
Many physicians believe that the PA pro­cess undermines patient care by decreasing time devoted to direct patient contact, incen­tivizing suboptimal treatment, and limit­ing medication access.^1,12,13 But do any data support this belief? Do PAs impede treat­ment for vulnerable persons with severe mental illnesses?

The answer, some studies suggest, is “Yes.” A Maine Medicaid PA policy slowed initiation of treatment for bipolar disor­der by reducing the rate of starting non-preferred medications, although the same policy had no impact on patients already receiving treatment.¹⁴ Another study exam­ined the effect of PA processes for inpatient psychiatry treatment and found that patients were less likely to be admitted on weekends, probably because PA review was not avail­able on those days.¹⁵ A third study showed that PA requirements and resulting impedi­ments to getting refills were correlated with medication discontinuation by patients with schizophrenia or bipolar disorder, which can increase the risk of decompensation, work-related problems, and hospitalization.¹⁶

Problems with PAs
Whether they are helpful or counterpro­ductive, PAs are a practice reality. Dr. A’s proposed solution sounds appealing, but it might create ethical and legal problems.

Among the fundamental elements of ethi­cal medical practice is physicians’ obliga­tion to give patients “guidance … as to the optimal course of action” and to “advocate for patients in dealing with third parties when appropriate.”¹⁷ It’s fine for psychia­trists to consider prescribing treatments that patients’ health care coverage favors, but we also have to help patients weigh and evaluate costs, particularly when patients’ circumstances and medical interests militate strongly for options that third-party payers balk at paying for. Patients’ interests—not what’s expedient—are always physicians’ foremost concern.¹⁸

Beyond purely ethical considerations, you might face legal consequences if you refuse or fail to seek PAs for what you think is the proper medication. As Table 1 shows, one key factor is whether you are under contract with the patient’s insurance carrier; if you are, failure to seek a PA when appropriate may constitute a breach of the contract (Donna Vanderpool, written communication, October 5, 2014).

If the prescribed medication does not meet the standard of care and your patient suffers some harm, a licensing board complaint and investigation are possible. You also face exposure to a medical malpractice action. Although we do not know of any instances in which such an action has succeeded, 2 recent court decisions suggest that harm to a patient stemmed from failing to seek PA for a medication could constitute grounds for a lawsuit.^19,20 Efforts to contain medical costs have been around for decades, and courts have held that physicians, third-party pay­ers, and utilization review intermediaries are bound by “the standard of reasonable com­munity practice”²¹ and should not let cost limitations “corrupt medical judgment.”²² Physicians who do not appeal limitations at odds with their medical judgment might bear responsibility for any injuries that occur.^18,22


Managing PA requests
Given the inevitability of encountering PA requests and your ethical and professional obligations to help patients, what can you do (Table 2^9,23,27)?

Some practitioners charge patients for time spent completing PAs.²³ Although phy­sicians should “complete without charge the appropriate ‘simplified’ insurance claim form as a part of service to the patient;” they also may consider “a charge for more complex or multiple forms … in conformity with local custom.”²⁴ Legally, physicians’ contracts with insurance panels may pre­clude charging such fees, but if a patient is being seen out of network, the physician does not have a contractual obligation and may charge.⁹ If your practice setting lets you choose which insurances you accept, the impact and burden of seeking PAs is a factor to consider when deciding whether to par­ticipate in a particular panel.²³

In an interesting twist, an Ohio physi­cian successfully sued a medical insur­ance administrator for the cost of his time responding to PA inquiries.²⁵ Reasoning that the insurance administrator “should expect to pay for the reasonable value of” the doctor’s time because the PAs “were solely intended for the benefit of the insur­ance administrator” or parties whom the administrator served, the judge awarded the doctor $187.50 plus 8% interest.

Considerations that are more practi­cal relate to how to triage and address the volume of PA requests. Some large medi­cal practices centralize PAs and try to set up pre-approved plans of care or blanket approvals for frequently encountered con­ditions. Centralization also allows one key administrative assistant to develop skills in processing PA requests and to build rela­tionships with payers.²⁶

The administrative assistant also can compile lists of preferred alternative medica­tions, PA forms, and payer Web sites. Using and submitting requests through payer Web sites can speed up PA processing, which saves time and money.²⁷ As electronic health records improve, they may incorporate patients’ formularies and provide automatic alerts for required PAs.²³

Patients should be involved, too. They can help to obtain relevant formulary infor­mation and to weigh alternative therapies. You can help them understand your role in the PA process, the reasoning behind your treatment recommendations, and the delays in picking up prescribed medications that waiting for PA approval can create.

It’s easy to get angry about PAs
Your best response, however, is to practice prudent and—within reason— cost-effective medicine. When generic or insurer-preferred medications are clini­cally appropriate and meet treatment guidelines, trying them first is sensible and defensible. If your patient fails the initial low-cost treatment, or if a low-cost choice isn’t appropriate, document this clearly and seek approval for a costlier treatment.⁹
 

BOTTOM LINE
Physicians have ethical and legal obligations to advocate for their patients’ needs and best interests. This sometimes includes completing prior authorization requests. Find strategies that minimize hassle and make sense in your practice, and seek efficient ways to document the medical necessity of requested tests, procedures, or therapies.
 

Acknowledgment
Drs. Marett and Mossman thanks Donna Vanderpool, MBA, JD, and Annette Reynolds, MD, for their helpful input in preparing this article.

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

Dear Dr. Mossman,

Where I practice, most health care plans won’t pay for certain medications without giving prior authorization (PA). Completing PA forms and making telephone calls take up time that could be better spent treat­ing patients. I’m tempted to set a new policy of not doing PAs. If I do, might I face legal trouble?

Submitted by “Dr. A”

If you provide clinical care, you’ve prob­ably dealt with third-party payers who require prior authorization (PA) before they will pay for certain treatments. Dr. A is not alone in feeling exasperated about the time it takes to complete a PA.¹ After spend­ing several hours each month waiting on hold and wading through stacks of paper­work, you may feel like Dr. A and consider refusing to do any more PAs.

But is Dr. A’s proposed solution a good idea? To address this question and the frus­tration that lies behind it, we’ll take a cue from Italian film director Sergio Leone and discuss:
   • how PAs affect psychiatric care: the good, the bad, and the ugly
   • potential exposure to professional liabil­ity and ethics complaints that might result from refusing or failing to seek PA
   • strategies to reduce the burden of PAs while providing efficient, effective care.

The good
Recent decades have witnessed huge increases in spending on prescription medication. Psychotropics are no excep­tion; state Medicaid spending for anti-psychotic medication grew from <$1 bil­lion in 1995 to >$5.5 billion in 2005.²

Requiring a PA for expensive drugs is one way that third-party payers try to rein in costs and hold down insurance premi­ums. Imposing financial constraints often is just one aim of a pharmacy benefit man­agement (PBM) program. Insurers also jus­tify PBMs by pointing out that feedback to practitioners whose prescribing falls well outside the norm—in the form of mailed warnings, physician second opinions, or pharmacist consultation—can improve patient safety and encourage appropriate treatment options for enrolled patients.^3,4 Examples of such benefits include reduc­ing overuse of prescription opioids⁵ and antipsychotics among children,³ misuse of buprenorphine,⁶ and adverse effects from potentially inappropriate prescriptions.⁷

The bad
The bad news for doctors: Cost savings for payers come at the expense of pro­viders and their practices, in the form of time spent doing paperwork and talking on the phone to complete PAs or contest PA decisions.⁸ Addressing PA requests costs an estimated $83,000 per physician per year. The total administrative burden for all 835,000 physicians who practice in the United States therefore is 868,000,000 hours, or $69 billion annually.⁹

To make matters worse, PA requirements may increase the overall cost of care. After Georgia Medicaid instituted PA require­ments for second-generation antipsychotics (SGAs), average monthly per member drug costs fell $19.62, but average monthly outpa­tient treatment costs rose $31.59 per mem­ber.10 Pharmacy savings that result from requiring PAs for SGAs can be offset quickly by small increases in the hospitalization rate or emergency department visits.^9,11

The ugly
Many physicians believe that the PA pro­cess undermines patient care by decreasing time devoted to direct patient contact, incen­tivizing suboptimal treatment, and limit­ing medication access.^1,12,13 But do any data support this belief? Do PAs impede treat­ment for vulnerable persons with severe mental illnesses?

The answer, some studies suggest, is “Yes.” A Maine Medicaid PA policy slowed initiation of treatment for bipolar disor­der by reducing the rate of starting non-preferred medications, although the same policy had no impact on patients already receiving treatment.¹⁴ Another study exam­ined the effect of PA processes for inpatient psychiatry treatment and found that patients were less likely to be admitted on weekends, probably because PA review was not avail­able on those days.¹⁵ A third study showed that PA requirements and resulting impedi­ments to getting refills were correlated with medication discontinuation by patients with schizophrenia or bipolar disorder, which can increase the risk of decompensation, work-related problems, and hospitalization.¹⁶

Problems with PAs
Whether they are helpful or counterpro­ductive, PAs are a practice reality. Dr. A’s proposed solution sounds appealing, but it might create ethical and legal problems.

Among the fundamental elements of ethi­cal medical practice is physicians’ obliga­tion to give patients “guidance … as to the optimal course of action” and to “advocate for patients in dealing with third parties when appropriate.”¹⁷ It’s fine for psychia­trists to consider prescribing treatments that patients’ health care coverage favors, but we also have to help patients weigh and evaluate costs, particularly when patients’ circumstances and medical interests militate strongly for options that third-party payers balk at paying for. Patients’ interests—not what’s expedient—are always physicians’ foremost concern.¹⁸

Beyond purely ethical considerations, you might face legal consequences if you refuse or fail to seek PAs for what you think is the proper medication. As Table 1 shows, one key factor is whether you are under contract with the patient’s insurance carrier; if you are, failure to seek a PA when appropriate may constitute a breach of the contract (Donna Vanderpool, written communication, October 5, 2014).

If the prescribed medication does not meet the standard of care and your patient suffers some harm, a licensing board complaint and investigation are possible. You also face exposure to a medical malpractice action. Although we do not know of any instances in which such an action has succeeded, 2 recent court decisions suggest that harm to a patient stemmed from failing to seek PA for a medication could constitute grounds for a lawsuit.^19,20 Efforts to contain medical costs have been around for decades, and courts have held that physicians, third-party pay­ers, and utilization review intermediaries are bound by “the standard of reasonable com­munity practice”²¹ and should not let cost limitations “corrupt medical judgment.”²² Physicians who do not appeal limitations at odds with their medical judgment might bear responsibility for any injuries that occur.^18,22


Managing PA requests
Given the inevitability of encountering PA requests and your ethical and professional obligations to help patients, what can you do (Table 2^9,23,27)?

Some practitioners charge patients for time spent completing PAs.²³ Although phy­sicians should “complete without charge the appropriate ‘simplified’ insurance claim form as a part of service to the patient;” they also may consider “a charge for more complex or multiple forms … in conformity with local custom.”²⁴ Legally, physicians’ contracts with insurance panels may pre­clude charging such fees, but if a patient is being seen out of network, the physician does not have a contractual obligation and may charge.⁹ If your practice setting lets you choose which insurances you accept, the impact and burden of seeking PAs is a factor to consider when deciding whether to par­ticipate in a particular panel.²³

In an interesting twist, an Ohio physi­cian successfully sued a medical insur­ance administrator for the cost of his time responding to PA inquiries.²⁵ Reasoning that the insurance administrator “should expect to pay for the reasonable value of” the doctor’s time because the PAs “were solely intended for the benefit of the insur­ance administrator” or parties whom the administrator served, the judge awarded the doctor $187.50 plus 8% interest.

Considerations that are more practi­cal relate to how to triage and address the volume of PA requests. Some large medi­cal practices centralize PAs and try to set up pre-approved plans of care or blanket approvals for frequently encountered con­ditions. Centralization also allows one key administrative assistant to develop skills in processing PA requests and to build rela­tionships with payers.²⁶

The administrative assistant also can compile lists of preferred alternative medica­tions, PA forms, and payer Web sites. Using and submitting requests through payer Web sites can speed up PA processing, which saves time and money.²⁷ As electronic health records improve, they may incorporate patients’ formularies and provide automatic alerts for required PAs.²³

Patients should be involved, too. They can help to obtain relevant formulary infor­mation and to weigh alternative therapies. You can help them understand your role in the PA process, the reasoning behind your treatment recommendations, and the delays in picking up prescribed medications that waiting for PA approval can create.

It’s easy to get angry about PAs
Your best response, however, is to practice prudent and—within reason— cost-effective medicine. When generic or insurer-preferred medications are clini­cally appropriate and meet treatment guidelines, trying them first is sensible and defensible. If your patient fails the initial low-cost treatment, or if a low-cost choice isn’t appropriate, document this clearly and seek approval for a costlier treatment.⁹
 

BOTTOM LINE
Physicians have ethical and legal obligations to advocate for their patients’ needs and best interests. This sometimes includes completing prior authorization requests. Find strategies that minimize hassle and make sense in your practice, and seek efficient ways to document the medical necessity of requested tests, procedures, or therapies.
 

Acknowledgment
Drs. Marett and Mossman thanks Donna Vanderpool, MBA, JD, and Annette Reynolds, MD, for their helpful input in preparing this article.

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

Dear Dr. Mossman,

Where I practice, most health care plans won’t pay for certain medications without giving prior authorization (PA). Completing PA forms and making telephone calls take up time that could be better spent treat­ing patients. I’m tempted to set a new policy of not doing PAs. If I do, might I face legal trouble?

Submitted by “Dr. A”

If you provide clinical care, you’ve prob­ably dealt with third-party payers who require prior authorization (PA) before they will pay for certain treatments. Dr. A is not alone in feeling exasperated about the time it takes to complete a PA.¹ After spend­ing several hours each month waiting on hold and wading through stacks of paper­work, you may feel like Dr. A and consider refusing to do any more PAs.

But is Dr. A’s proposed solution a good idea? To address this question and the frus­tration that lies behind it, we’ll take a cue from Italian film director Sergio Leone and discuss:
   • how PAs affect psychiatric care: the good, the bad, and the ugly
   • potential exposure to professional liabil­ity and ethics complaints that might result from refusing or failing to seek PA
   • strategies to reduce the burden of PAs while providing efficient, effective care.

The good
Recent decades have witnessed huge increases in spending on prescription medication. Psychotropics are no excep­tion; state Medicaid spending for anti-psychotic medication grew from <$1 bil­lion in 1995 to >$5.5 billion in 2005.²

Requiring a PA for expensive drugs is one way that third-party payers try to rein in costs and hold down insurance premi­ums. Imposing financial constraints often is just one aim of a pharmacy benefit man­agement (PBM) program. Insurers also jus­tify PBMs by pointing out that feedback to practitioners whose prescribing falls well outside the norm—in the form of mailed warnings, physician second opinions, or pharmacist consultation—can improve patient safety and encourage appropriate treatment options for enrolled patients.^3,4 Examples of such benefits include reduc­ing overuse of prescription opioids⁵ and antipsychotics among children,³ misuse of buprenorphine,⁶ and adverse effects from potentially inappropriate prescriptions.⁷

The bad
The bad news for doctors: Cost savings for payers come at the expense of pro­viders and their practices, in the form of time spent doing paperwork and talking on the phone to complete PAs or contest PA decisions.⁸ Addressing PA requests costs an estimated $83,000 per physician per year. The total administrative burden for all 835,000 physicians who practice in the United States therefore is 868,000,000 hours, or $69 billion annually.⁹

To make matters worse, PA requirements may increase the overall cost of care. After Georgia Medicaid instituted PA require­ments for second-generation antipsychotics (SGAs), average monthly per member drug costs fell $19.62, but average monthly outpa­tient treatment costs rose $31.59 per mem­ber.10 Pharmacy savings that result from requiring PAs for SGAs can be offset quickly by small increases in the hospitalization rate or emergency department visits.^9,11

The ugly
Many physicians believe that the PA pro­cess undermines patient care by decreasing time devoted to direct patient contact, incen­tivizing suboptimal treatment, and limit­ing medication access.^1,12,13 But do any data support this belief? Do PAs impede treat­ment for vulnerable persons with severe mental illnesses?

The answer, some studies suggest, is “Yes.” A Maine Medicaid PA policy slowed initiation of treatment for bipolar disor­der by reducing the rate of starting non-preferred medications, although the same policy had no impact on patients already receiving treatment.¹⁴ Another study exam­ined the effect of PA processes for inpatient psychiatry treatment and found that patients were less likely to be admitted on weekends, probably because PA review was not avail­able on those days.¹⁵ A third study showed that PA requirements and resulting impedi­ments to getting refills were correlated with medication discontinuation by patients with schizophrenia or bipolar disorder, which can increase the risk of decompensation, work-related problems, and hospitalization.¹⁶

Problems with PAs
Whether they are helpful or counterpro­ductive, PAs are a practice reality. Dr. A’s proposed solution sounds appealing, but it might create ethical and legal problems.

Among the fundamental elements of ethi­cal medical practice is physicians’ obliga­tion to give patients “guidance … as to the optimal course of action” and to “advocate for patients in dealing with third parties when appropriate.”¹⁷ It’s fine for psychia­trists to consider prescribing treatments that patients’ health care coverage favors, but we also have to help patients weigh and evaluate costs, particularly when patients’ circumstances and medical interests militate strongly for options that third-party payers balk at paying for. Patients’ interests—not what’s expedient—are always physicians’ foremost concern.¹⁸

Beyond purely ethical considerations, you might face legal consequences if you refuse or fail to seek PAs for what you think is the proper medication. As Table 1 shows, one key factor is whether you are under contract with the patient’s insurance carrier; if you are, failure to seek a PA when appropriate may constitute a breach of the contract (Donna Vanderpool, written communication, October 5, 2014).

If the prescribed medication does not meet the standard of care and your patient suffers some harm, a licensing board complaint and investigation are possible. You also face exposure to a medical malpractice action. Although we do not know of any instances in which such an action has succeeded, 2 recent court decisions suggest that harm to a patient stemmed from failing to seek PA for a medication could constitute grounds for a lawsuit.^19,20 Efforts to contain medical costs have been around for decades, and courts have held that physicians, third-party pay­ers, and utilization review intermediaries are bound by “the standard of reasonable com­munity practice”²¹ and should not let cost limitations “corrupt medical judgment.”²² Physicians who do not appeal limitations at odds with their medical judgment might bear responsibility for any injuries that occur.^18,22


Managing PA requests
Given the inevitability of encountering PA requests and your ethical and professional obligations to help patients, what can you do (Table 2^9,23,27)?

Some practitioners charge patients for time spent completing PAs.²³ Although phy­sicians should “complete without charge the appropriate ‘simplified’ insurance claim form as a part of service to the patient;” they also may consider “a charge for more complex or multiple forms … in conformity with local custom.”²⁴ Legally, physicians’ contracts with insurance panels may pre­clude charging such fees, but if a patient is being seen out of network, the physician does not have a contractual obligation and may charge.⁹ If your practice setting lets you choose which insurances you accept, the impact and burden of seeking PAs is a factor to consider when deciding whether to par­ticipate in a particular panel.²³

In an interesting twist, an Ohio physi­cian successfully sued a medical insur­ance administrator for the cost of his time responding to PA inquiries.²⁵ Reasoning that the insurance administrator “should expect to pay for the reasonable value of” the doctor’s time because the PAs “were solely intended for the benefit of the insur­ance administrator” or parties whom the administrator served, the judge awarded the doctor $187.50 plus 8% interest.

Considerations that are more practi­cal relate to how to triage and address the volume of PA requests. Some large medi­cal practices centralize PAs and try to set up pre-approved plans of care or blanket approvals for frequently encountered con­ditions. Centralization also allows one key administrative assistant to develop skills in processing PA requests and to build rela­tionships with payers.²⁶

The administrative assistant also can compile lists of preferred alternative medica­tions, PA forms, and payer Web sites. Using and submitting requests through payer Web sites can speed up PA processing, which saves time and money.²⁷ As electronic health records improve, they may incorporate patients’ formularies and provide automatic alerts for required PAs.²³

Patients should be involved, too. They can help to obtain relevant formulary infor­mation and to weigh alternative therapies. You can help them understand your role in the PA process, the reasoning behind your treatment recommendations, and the delays in picking up prescribed medications that waiting for PA approval can create.

It’s easy to get angry about PAs
Your best response, however, is to practice prudent and—within reason— cost-effective medicine. When generic or insurer-preferred medications are clini­cally appropriate and meet treatment guidelines, trying them first is sensible and defensible. If your patient fails the initial low-cost treatment, or if a low-cost choice isn’t appropriate, document this clearly and seek approval for a costlier treatment.⁹
 

BOTTOM LINE
Physicians have ethical and legal obligations to advocate for their patients’ needs and best interests. This sometimes includes completing prior authorization requests. Find strategies that minimize hassle and make sense in your practice, and seek efficient ways to document the medical necessity of requested tests, procedures, or therapies.
 

Acknowledgment
Drs. Marett and Mossman thanks Donna Vanderpool, MBA, JD, and Annette Reynolds, MD, for their helpful input in preparing this article.

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

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, she was taken to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the sign­out, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.
During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

Continue for the outcome and commentary >>

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal adverse effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which naloxone is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times and, importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is an otherwise defensible case that becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, she was taken to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the sign­out, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.
During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

Continue for the outcome and commentary >>

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal adverse effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which naloxone is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times and, importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is an otherwise defensible case that becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

A 17-year-old girl underwent a routine tonsillectomy without complications at a surgical center. Following the procedure, she was taken to the recovery room and administered fentanyl for pain. 

The recovery room nurse assigned to monitor the patient spent 20 minutes treating another patient and then went on break, signing out to a second recovery room nurse. On receiving the sign­out, the second recovery room nurse discovered that the patient was in respiratory distress and began resuscitation efforts. The patient was resuscitated but died 15 days later.

The plaintiff claimed that the girl was left unmonitored by nurses assigned to the unit and that the monitoring equipment was not used, not set properly, or muted.
During her deposition, the second recovery room nurse admitted under oath that the first recovery room nurse falsified the patient’s chart; the first nurse claimed that she had assessed the patient during an important time period when she had not.  

Continue for the outcome and commentary >>

OUTCOME
The case was settled for $6 million: $1 million against the surgical center’s primary policy and $5 million against its excess policy.

COMMENT
Cases such as this one are unfortunate and avoidable—and tragically, too common. On any medical malpractice lawyer’s desk is a teetering stack of potential cases; much of that stack involves narcotics. This case raises two important areas to discuss: the dangers of parenteral narcotics and the perils of falsifying medical records.

First, when parenteral narcotics are given, proper monitoring safeguards must be in place. Malpractice cases frequently involve a scenario in which patients are given parenteral narcotics and left alone, out of sight, and unmonitored. This simply can’t be done. Close supervision and monitoring—with both equipment and eyes—are required to safeguard your patients and avoid malpractice risk. 

Other malpractice scenarios involve the ambulatory patient who is given parenteral narcotics in a clinic setting and discharged after a 10-minute “observation” period—a period during which peak drug effect is probably not realized. The patient is unsafely discharged before that peak is reached and suffers potentially fatal adverse effects. Even when direct fatal effects are not realized, the patient is discharged with impaired motor coordination and cognitive judgment, placing the patient at risk in his/her surroundings.

If a clinician commits to giving parenteral narcotics, he or she commits to providing “real-time” monitoring until the narcotic effects have safely diminished and the patient’s condition is thoroughly documented in the record. Generally speaking, the patient must be reasonably clear of the effects of narcotics before discharge. (Remember the special case of naloxone, administered for opiate excesses, in which naloxone is metabolized before the opiate; the patient can relapse into a coma/apnea if the naloxone fully metabolizes before the opiate.)

Here, this young woman was probably opiate naïve. While the amount she was given was certain, her response to the drug was not. She was left alone for at least 20 minutes and did not have a functioning SaO₂ monitor. Close monitoring of this patient was required but not provided.

As a result of this case, the surgical center changed several policies: Nurses must be on a one-to-one ratio with patients who have received narcotics during anesthesia. Furthermore, nurses must have line-of-sight to see patients at all times and, importantly, may not mute monitors (eg, oximetry monitors). 

The second salient point of this case is never, ever alter or falsify patient records! It will be discovered, and your credibility will be irretrievably damaged. Plaintiff lawyers live for this, and yet clinicians continue to do it. Don’t.

When altered medical records are discovered, the plaintiff’s theory of the case will be “cover up,” and jurors will be invited to punish the clinician for it. The jurors will do so. 

Also problematic is an otherwise defensible case that becomes much more difficult to defend because a clinician has altered the records. Remember, the plaintiff must prove all aspects of negligence, including causation and damages. In some cases, the clinician knows an obvious mistake was made but does not know that the eventual damages may be minimal or attributable to another cause. By altering the medical record, the clinician may enhance the damages value of a case by introducing a punitive element. Altering records may result in a lawsuit being filed when it otherwise wouldn’t have, or maintained when it would have been dropped before trial. In sum, don’t create a case against yourself by altering the medical records. 

Here, the falsification of records came to light during the deposition of the second nurse—who, being under oath, probably had little choice but to testify that the first nurse falsified the records. No doubt, this falsification made a bad case worse and gave the plaintiff leverage in securing more favorable settlement terms. 

You can’t make it right by rewriting history, but you can make it right by showing concern for the patient in your actions following a problem. You can also make it right by troubleshooting problems in a closed-door, formal peer review conference. Peer review conferences are designed for full and frank communication between clinicians and staff to solve problems, and as such they are protected from plaintiff disclosure.

This is an unfortunate case and a tragic loss of life. As clinicians, we must respect the potential life-ending power of parenteral narcotics. —DML

If you are a physician considering employment with a hospital or private practice in which hospital medical staff privileges will be needed or you are currently employed by a hospital or private practice and have medical staff privileges, it is imperative that you understand your rights as an employee and as a member of the hospital’s medical staff, along with the interplay between those two roles.

Employment Agreement and Hospital Medical Staff Bylaws

As an employee of a hospital or private practice, you will have an employment agreement that governs the terms of your employment. In addition, if you are on the hospital’s medical staff, you will also be subject to the hospital’s medical staff bylaws, which govern the terms of your staff membership and clinical privileges.

At the onset of an employment relationship, many physicians focus on the terms of their employment agreements, often ignoring the terms of the medical staff bylaws. This could lead to unexpected surprises, usually toward the end of the employment relationship, because both documents need to be read in conjunction with each other.

Beware of conflicting terms in your employment agreement on the one hand and the medical staff bylaws on the other. Although an employment agreement may include seemingly beneficial terms, hidden language often has the effect of negating its terms by qualifying the employment agreement with language contained in the bylaws. Examples include:

—“In the event of a conflict between the terms of the Physician’s Employment Agreement and the Medical Staff Bylaws, the Medical Staff Bylaws shall control.”

—“Subject to the Medical Staff Bylaws, Physician may …”

—“Except as otherwise stated in the Medical Staff Bylaws, Physician may …”

—“Except as permitted by the Medical Staff Bylaws, Physician may not …”

Termination of Medical Staff Privileges: Impact on Employment Agreement

Whether you are employed by a hospital or a private practice, your employment is likely at risk if your hospital medical staff privileges are suspended, revoked, or restricted. Even if your medical staff privileges are later reinstated, the initial suspension may trigger termination of your employment agreement.

Therefore, it is important to understand your due process rights, outlined in the hospital’s medical staff bylaws, as to how your privileges can be suspended, revoked, or restricted, as well as the procedure the hospital must undergo to make such a decision.

Medical staff bylaws also include a procedure for due process, including fair hearings and appeal mechanisms for medical staff decisions, such as privilege suspension, revocation, and restrictions.

Termination of Employment: Impact on Medical Staff Privileges

For hospital employees and most hospital-based physicians, termination of your employment agreement, whether for cause or without cause, may be automatic grounds for termination of your staff privileges. In such a case, your due process rights under the medical staff bylaws as they relate to your staff privileges are waived, and you will not be afforded the fair hearing and appeal procedure typically available to office-based physicians on the hospital’s medical staff.

Also, your employment agreement may contractually require you to resign from the hospital’s medical staff upon termination of the employment relationship. For example:

“Physician covenants and agrees that upon termination of Physician’s employment with Employer (whether for cause or without cause), Physician will resign from the medical staff of Hospital X, thereby relinquishing any right to due process pursuant to the medical staff bylaws.”

Some employment agreements may go even further and prohibit you from re-applying for medical staff privileges at that hospital for a stated period of time. For example:

“Physician further agrees that Physician shall not re-apply for medical staff privileges at Hospital X within two (2) years following the later of the termination of Physician’s employment or the effective date of termination of such medical staff privileges at Hospital X.”

Don’t forget about the hospital’s medical staff bylaws when entertaining an employment relationship with a hospital or private practice. The hospital’s medical staff bylaws should be reviewed in conjunction with the employment agreement.

Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].

If you are a physician considering employment with a hospital or private practice in which hospital medical staff privileges will be needed or you are currently employed by a hospital or private practice and have medical staff privileges, it is imperative that you understand your rights as an employee and as a member of the hospital’s medical staff, along with the interplay between those two roles.

Employment Agreement and Hospital Medical Staff Bylaws

As an employee of a hospital or private practice, you will have an employment agreement that governs the terms of your employment. In addition, if you are on the hospital’s medical staff, you will also be subject to the hospital’s medical staff bylaws, which govern the terms of your staff membership and clinical privileges.

At the onset of an employment relationship, many physicians focus on the terms of their employment agreements, often ignoring the terms of the medical staff bylaws. This could lead to unexpected surprises, usually toward the end of the employment relationship, because both documents need to be read in conjunction with each other.

Beware of conflicting terms in your employment agreement on the one hand and the medical staff bylaws on the other. Although an employment agreement may include seemingly beneficial terms, hidden language often has the effect of negating its terms by qualifying the employment agreement with language contained in the bylaws. Examples include:

—“In the event of a conflict between the terms of the Physician’s Employment Agreement and the Medical Staff Bylaws, the Medical Staff Bylaws shall control.”

—“Subject to the Medical Staff Bylaws, Physician may …”

—“Except as otherwise stated in the Medical Staff Bylaws, Physician may …”

—“Except as permitted by the Medical Staff Bylaws, Physician may not …”

Termination of Medical Staff Privileges: Impact on Employment Agreement

Whether you are employed by a hospital or a private practice, your employment is likely at risk if your hospital medical staff privileges are suspended, revoked, or restricted. Even if your medical staff privileges are later reinstated, the initial suspension may trigger termination of your employment agreement.

Therefore, it is important to understand your due process rights, outlined in the hospital’s medical staff bylaws, as to how your privileges can be suspended, revoked, or restricted, as well as the procedure the hospital must undergo to make such a decision.

Medical staff bylaws also include a procedure for due process, including fair hearings and appeal mechanisms for medical staff decisions, such as privilege suspension, revocation, and restrictions.

Termination of Employment: Impact on Medical Staff Privileges

For hospital employees and most hospital-based physicians, termination of your employment agreement, whether for cause or without cause, may be automatic grounds for termination of your staff privileges. In such a case, your due process rights under the medical staff bylaws as they relate to your staff privileges are waived, and you will not be afforded the fair hearing and appeal procedure typically available to office-based physicians on the hospital’s medical staff.

Also, your employment agreement may contractually require you to resign from the hospital’s medical staff upon termination of the employment relationship. For example:

“Physician covenants and agrees that upon termination of Physician’s employment with Employer (whether for cause or without cause), Physician will resign from the medical staff of Hospital X, thereby relinquishing any right to due process pursuant to the medical staff bylaws.”

Some employment agreements may go even further and prohibit you from re-applying for medical staff privileges at that hospital for a stated period of time. For example:

“Physician further agrees that Physician shall not re-apply for medical staff privileges at Hospital X within two (2) years following the later of the termination of Physician’s employment or the effective date of termination of such medical staff privileges at Hospital X.”

Don’t forget about the hospital’s medical staff bylaws when entertaining an employment relationship with a hospital or private practice. The hospital’s medical staff bylaws should be reviewed in conjunction with the employment agreement.

Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].

If you are a physician considering employment with a hospital or private practice in which hospital medical staff privileges will be needed or you are currently employed by a hospital or private practice and have medical staff privileges, it is imperative that you understand your rights as an employee and as a member of the hospital’s medical staff, along with the interplay between those two roles.

Employment Agreement and Hospital Medical Staff Bylaws

As an employee of a hospital or private practice, you will have an employment agreement that governs the terms of your employment. In addition, if you are on the hospital’s medical staff, you will also be subject to the hospital’s medical staff bylaws, which govern the terms of your staff membership and clinical privileges.

At the onset of an employment relationship, many physicians focus on the terms of their employment agreements, often ignoring the terms of the medical staff bylaws. This could lead to unexpected surprises, usually toward the end of the employment relationship, because both documents need to be read in conjunction with each other.

Beware of conflicting terms in your employment agreement on the one hand and the medical staff bylaws on the other. Although an employment agreement may include seemingly beneficial terms, hidden language often has the effect of negating its terms by qualifying the employment agreement with language contained in the bylaws. Examples include:

—“In the event of a conflict between the terms of the Physician’s Employment Agreement and the Medical Staff Bylaws, the Medical Staff Bylaws shall control.”

—“Subject to the Medical Staff Bylaws, Physician may …”

—“Except as otherwise stated in the Medical Staff Bylaws, Physician may …”

—“Except as permitted by the Medical Staff Bylaws, Physician may not …”

Termination of Medical Staff Privileges: Impact on Employment Agreement

Whether you are employed by a hospital or a private practice, your employment is likely at risk if your hospital medical staff privileges are suspended, revoked, or restricted. Even if your medical staff privileges are later reinstated, the initial suspension may trigger termination of your employment agreement.

Therefore, it is important to understand your due process rights, outlined in the hospital’s medical staff bylaws, as to how your privileges can be suspended, revoked, or restricted, as well as the procedure the hospital must undergo to make such a decision.

Medical staff bylaws also include a procedure for due process, including fair hearings and appeal mechanisms for medical staff decisions, such as privilege suspension, revocation, and restrictions.

Termination of Employment: Impact on Medical Staff Privileges

For hospital employees and most hospital-based physicians, termination of your employment agreement, whether for cause or without cause, may be automatic grounds for termination of your staff privileges. In such a case, your due process rights under the medical staff bylaws as they relate to your staff privileges are waived, and you will not be afforded the fair hearing and appeal procedure typically available to office-based physicians on the hospital’s medical staff.

Also, your employment agreement may contractually require you to resign from the hospital’s medical staff upon termination of the employment relationship. For example:

“Physician covenants and agrees that upon termination of Physician’s employment with Employer (whether for cause or without cause), Physician will resign from the medical staff of Hospital X, thereby relinquishing any right to due process pursuant to the medical staff bylaws.”

Some employment agreements may go even further and prohibit you from re-applying for medical staff privileges at that hospital for a stated period of time. For example:

“Physician further agrees that Physician shall not re-apply for medical staff privileges at Hospital X within two (2) years following the later of the termination of Physician’s employment or the effective date of termination of such medical staff privileges at Hospital X.”

Don’t forget about the hospital’s medical staff bylaws when entertaining an employment relationship with a hospital or private practice. The hospital’s medical staff bylaws should be reviewed in conjunction with the employment agreement.

Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].

In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.

But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.

The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.

The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.

Continue for the outcome and David Lang's comments >>

OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.

COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.

When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.

We think of studies as automated—and some are. But many more involve human decision making and interpretation.

Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.

The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.

Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.   

Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.  

Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ­ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it ­provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly ­address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.  

Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?  

The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.

Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.

Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages.  —DML

In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.

But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.

The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.

The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.

Continue for the outcome and David Lang's comments >>

OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.

COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.

When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.

We think of studies as automated—and some are. But many more involve human decision making and interpretation.

Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.

The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.

Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.   

Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.  

Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ­ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it ­provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly ­address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.  

Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?  

The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.

Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.

Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages.  —DML

In February 2007, a 65-year-old man consulted an internist. A blood test showed an infection. Antibiotics were administered successfully, and the patient was declared free of infection. He was noted to have a heart murmur, however, prompting the internist to refer him to a cardiologist, Dr K., for an echocardiogram.

But the internist’s nurse practitioner provided the wrong clinical indication for the referral. As a result, Dr K., unaware of what to look for, read the echocardiogram as negative. The internist and NP did not realize the mistake, because they never requested a copy of the results.

The internist later sent the patient to an infectious disease (ID) specialist, Dr G., to rule out endocarditis. Dr G.’s opinion was that there was no infection.

The patient’s condition deteriorated, however, and he was admitted to a hospital in early May 2007. Two day later, he was diagnosed with endocarditis. He subsequently underwent open-heart surgery and received antibiotics. He died later that month.

Continue for the outcome and David Lang's comments >>

OUTCOME
A $1.2 million settlement was reached, with Dr K. paying $500,000, the internist and NP paying another $500,000, and Dr G. responsible for $200,000.

COMMENT
Here, the causal problem was a communication breakdown between the primary care provider and the cardiologist.

When ordering a test, the indication may be as important as the choice of modality. Be mindful to include the indication and patient history wherever relevant—particularly when you as the referring clinician do not directly speak to the specialist. This holds true for all diagnostic studies, but particularly for laboratory analysis and imaging studies, when the clinician and the appropriate department do not communicate verbally.

We think of studies as automated—and some are. But many more involve human decision making and interpretation.

Imaging always involves the selection of modality, which may not be chosen correctly if the technician does not know or understand what the clinician is looking for.

The same is true with laboratory analysis: While a complete blood count and electrolyte measurements are automated, other tests aren’t. When a lab technician performs a manual differential or reviews a stool specimen for ova and parasites, a human is selecting a technique and interpreting the results. When a pathologist analyzes a specimen, a human process of evaluation and interpretation is rendered based on an understanding of the issue.

Don’t order tests in a vacuum. Give your human interpreters—technicians, pathologists, radiologists—as much information about the clinical case as you reasonably can. Any unusual cases involving zebra hunting are ripe candidates for misunderstanding and require a phone call.   

Clearly communicating the patient history and indication also may be helpful when the clinician has ordered an incorrect or suboptimal study. If you order a standard forearm radiograph, you will get imaging of the bones. However, if you are looking for soft-tissue foreign bodies, a soft-tissue technique is better. When the indication is communicated, it gives the technician a chance to call the unknowing clinician to discuss the better option. Keeping diagnostic staff in the dark helps no one.  

Finally, when you are the evaluator, protect yourself and the patient. When asked to review a study, in your report echo back the indication for the study and what you’ve been asked to address. This ­ensures the ordering clinician knows how the study was undertaken and what you were looking for, and it ­provides an opportunity to restudy if needed. Make sure to discuss limitations in the test modality and what follow-up or repeat studies would be required to properly ­address the indication. Make sure the report is forwarded to the ordering clinician. If the indication is unclear or the wrong test was chosen—call the ordering clinician.  

Here, the internist’s NP ordered an echocardiogram to evaluate a heart murmur. We don’t know what the stated indication for the echocardiogram was, but it was not endocarditis. The cardiologist interpreted the echocardiogram as normal. Would he have detected valvular vegetations if he knew the ordering clinician was concerned about endocarditis?  

The jury was persuaded that the cardiologist’s negative interpretation of the echocardiogram breached the standard of care—even given the fact he was given the wrong indication for the study. The jury also faulted the primary care clinicians, likely in part for providing the wrong indication and in part for failing to review the report.

Interestingly, the ID specialist was held least culpable (in payment terms), despite being explicitly requested to rule out endocarditis—and failing to do so. This is probably due to a short interval between the ID physician’s evaluation and the patient’s final admission. Even given the massive breach of the standard of care in failure to diagnose endocarditis, a short delay would have a relatively modest causal role in the patient’s deterioration.

Thus, even though the ID physician arguably made the biggest mistake, it may have had the least impact on the patient’s overall condition—leaving the ID physician less legally culpable in terms of damages.  —DML