Medicolegal Issues

Danielle Scheurer, MD, MSCR, SFHM

It’s 1982, and in middle-school gyms across the country, among punch bowls and parental scrutiny, young girls and boys are slow-dancing with outstretched arms to a breathtaking song by the band Chicago. The song tells of the agonizing difficulty of apology, how despite the want and need to apologize, it is just too arduous.

Fast-forward 30 years, and it is hard to believe that cheesy No. 1 Billboard hit espoused the feelings that continue to haunt healthcare providers across the country: It’s hard for me to say I’m sorry.

Others Say It

If you look at the world around us, you see apology everywhere. Customer service representatives and customer-minded industries routinely let those words flow off their tongues with ease and grace.

While I was driving down the interstate last week, the number of traffic lanes shrunk from three to two to one. Anticipating widespread aggravation from weary travelers, the state transportation department deployed several large road signs every few miles; they read “WE APOLOGIZE FOR THE INCONVENIENCE … BEAR WITH US WHILE WE MAKE YOUR ROADS SMOOTHER AND SAFER.” Those simple messages made me feel like the congestion was not a senseless waste of time, that the state’s Department of Transportation was actually being strategic and thoughtful in their rationing of lanes during rush hour in the middle of the week.

Phone-based, customer-service departments figured out the simple apology a long time ago. While holding the line for a Lands’ End customer-service representative a few weeks ago, I heard, “We apologize for the delay. Your business is important to us. Please hold the line while we address callers ahead of you.” It validated for me that those phone representatives are not just sitting around eating lunch, completely ignoring my call, and that maybe there are others who procrastinated buying back-to-school backpacks until September—and just happened to call right before me.

I even got an apology at the dry cleaner. Amidst my last batch of clothes, my astute dry cleaner apparently found a very stubborn stain, which resisted all of their usual concoctions. It was on the back of a shirt and I probably would not have even noticed it was there. But nonetheless, they sent an apology tag, with a picture of a distraught butler who seemed to have struggled with that stain for hours.

Why Not Us?

So why is “sorry” so hard in healthcare? When things happen to patients, things that are inconvenient or downright dangerous, we have great difficulty in simply saying: “Hey, I am really sorry this happened to you,” or “I am so sorry you are still here. You must be really frustrated by our inefficiencies.”

I have the distinct pleasure of overseeing my hospital’s risk-management department for a few months. This means I get to see and hear what does and doesn’t happen to patients, which, at times, is misaligned with what should or shouldn’t happen to patients. When unanticipated events occur, the group launches into an investigation of what happened, why it happened, and the risk that it could happen again. After the initial dust settles and the facts are relayed from the care team to the risk-management team, the risk team always asks of those involved: “So what does the patient and their family know?” And we get a range of answers—some polished, some fumbled, some baffled.

The next question is: “Well, what should they know?” And that is always an easy question to answer. They should know the truth. Not just some of the truth, or half the truth, or a partial truth. Not what the care team thinks the patient “can handle.” They should just get the truth. To the best of the team’s ability, they should tell the patient:

• What (they think) happened;
• Why (they think) it happened;
• What it means for the patient; and
• What they are going to do to make it not happen again.

And then the patient (and family members) deserve an apology—sincere, compassionate, genuine. The apology should be the easy part, as most providers do not always know what happened, why it happened, or what they are going to do to prevent it from happening, but they usually truly do feel sorry that it happened at all.

“Sorry”=Positive Results

Patients are unanimous in their desire to be informed if a medical error has occurred; focus groups have found that patients believe such information would enhance their trust in their physicians and would reassure them that they were receiving complete information. And they want an apology.¹

But interestingly, many physicians believe that full disclosure with apology is not warranted or appropriate, and that the apology could erode patient trust, might scare the patient, and might increase the risk of legal liability.¹

There is little evidence that disclosure is harmful or detrimental, and there is some evidence that it is beneficial to the medical industry (i.e. reduces claims and litigation costs). A study published in 2010 from the University of Michigan Health System found a disclosure-with-compensation program was associated with a 36% reduction in new claims, a 65% reduction in lawsuits, and a 59% reduction in total liability cost.²

I have witnessed this phenomenon from both sides. My mother, who has Alzheimer’s and lives in an assisted-living facility, recently was given twice the dose of her medications one morning. She was “given” her night medications by being placed in her room, which she has no recollection of (the staff are supposed to watch her take her medications). The next morning, she saw the medications and took them, then took another dose when the nurse came by to give her morning medications. It was not realized until she’d already taken the medications and the staff noticed the medicine cup from the night before. My mom said she felt a little weak and dizzy for a few hours, but nothing significant, and she fully recovered. Interestingly, my mom mentioned it in passing, but no one called to let us know a medication error had occurred. Although she was not harmed, it made us, her family, lose a little trust in the facility because we found out about it indirectly, without any acknowledgement or apology.

On the other side of the equation, I have witnessed countless numbers of patient events in which providers feel worried and uncomfortable about the effects of disclosure with apology on themselves and their patients.

The bottom line is, disclosure with apology is needed and appreciated by patients, and it is absolutely the right thing to do. So download that cheesy Chicago song to your iPod and practice saying (or singing) “I’m sorry.” If the butler with chemicals can do it, so can we.

Dr. Scheurer is a hospitalist and chief quality officer at the Medical University of South Carolina in Charleston. She is physician editor of The Hospitalist. Email her at [email protected].

References

1. Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, Levinson W. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA. 2003;289(8):1001-1007.
2. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. 2010;153(4):213-221.

Danielle Scheurer, MD, MSCR, SFHM

It’s 1982, and in middle-school gyms across the country, among punch bowls and parental scrutiny, young girls and boys are slow-dancing with outstretched arms to a breathtaking song by the band Chicago. The song tells of the agonizing difficulty of apology, how despite the want and need to apologize, it is just too arduous.

Fast-forward 30 years, and it is hard to believe that cheesy No. 1 Billboard hit espoused the feelings that continue to haunt healthcare providers across the country: It’s hard for me to say I’m sorry.

Others Say It

If you look at the world around us, you see apology everywhere. Customer service representatives and customer-minded industries routinely let those words flow off their tongues with ease and grace.

While I was driving down the interstate last week, the number of traffic lanes shrunk from three to two to one. Anticipating widespread aggravation from weary travelers, the state transportation department deployed several large road signs every few miles; they read “WE APOLOGIZE FOR THE INCONVENIENCE … BEAR WITH US WHILE WE MAKE YOUR ROADS SMOOTHER AND SAFER.” Those simple messages made me feel like the congestion was not a senseless waste of time, that the state’s Department of Transportation was actually being strategic and thoughtful in their rationing of lanes during rush hour in the middle of the week.

Phone-based, customer-service departments figured out the simple apology a long time ago. While holding the line for a Lands’ End customer-service representative a few weeks ago, I heard, “We apologize for the delay. Your business is important to us. Please hold the line while we address callers ahead of you.” It validated for me that those phone representatives are not just sitting around eating lunch, completely ignoring my call, and that maybe there are others who procrastinated buying back-to-school backpacks until September—and just happened to call right before me.

I even got an apology at the dry cleaner. Amidst my last batch of clothes, my astute dry cleaner apparently found a very stubborn stain, which resisted all of their usual concoctions. It was on the back of a shirt and I probably would not have even noticed it was there. But nonetheless, they sent an apology tag, with a picture of a distraught butler who seemed to have struggled with that stain for hours.

Why Not Us?

So why is “sorry” so hard in healthcare? When things happen to patients, things that are inconvenient or downright dangerous, we have great difficulty in simply saying: “Hey, I am really sorry this happened to you,” or “I am so sorry you are still here. You must be really frustrated by our inefficiencies.”

I have the distinct pleasure of overseeing my hospital’s risk-management department for a few months. This means I get to see and hear what does and doesn’t happen to patients, which, at times, is misaligned with what should or shouldn’t happen to patients. When unanticipated events occur, the group launches into an investigation of what happened, why it happened, and the risk that it could happen again. After the initial dust settles and the facts are relayed from the care team to the risk-management team, the risk team always asks of those involved: “So what does the patient and their family know?” And we get a range of answers—some polished, some fumbled, some baffled.

The next question is: “Well, what should they know?” And that is always an easy question to answer. They should know the truth. Not just some of the truth, or half the truth, or a partial truth. Not what the care team thinks the patient “can handle.” They should just get the truth. To the best of the team’s ability, they should tell the patient:

• What (they think) happened;
• Why (they think) it happened;
• What it means for the patient; and
• What they are going to do to make it not happen again.

And then the patient (and family members) deserve an apology—sincere, compassionate, genuine. The apology should be the easy part, as most providers do not always know what happened, why it happened, or what they are going to do to prevent it from happening, but they usually truly do feel sorry that it happened at all.

“Sorry”=Positive Results

Patients are unanimous in their desire to be informed if a medical error has occurred; focus groups have found that patients believe such information would enhance their trust in their physicians and would reassure them that they were receiving complete information. And they want an apology.¹

But interestingly, many physicians believe that full disclosure with apology is not warranted or appropriate, and that the apology could erode patient trust, might scare the patient, and might increase the risk of legal liability.¹

There is little evidence that disclosure is harmful or detrimental, and there is some evidence that it is beneficial to the medical industry (i.e. reduces claims and litigation costs). A study published in 2010 from the University of Michigan Health System found a disclosure-with-compensation program was associated with a 36% reduction in new claims, a 65% reduction in lawsuits, and a 59% reduction in total liability cost.²

I have witnessed this phenomenon from both sides. My mother, who has Alzheimer’s and lives in an assisted-living facility, recently was given twice the dose of her medications one morning. She was “given” her night medications by being placed in her room, which she has no recollection of (the staff are supposed to watch her take her medications). The next morning, she saw the medications and took them, then took another dose when the nurse came by to give her morning medications. It was not realized until she’d already taken the medications and the staff noticed the medicine cup from the night before. My mom said she felt a little weak and dizzy for a few hours, but nothing significant, and she fully recovered. Interestingly, my mom mentioned it in passing, but no one called to let us know a medication error had occurred. Although she was not harmed, it made us, her family, lose a little trust in the facility because we found out about it indirectly, without any acknowledgement or apology.

On the other side of the equation, I have witnessed countless numbers of patient events in which providers feel worried and uncomfortable about the effects of disclosure with apology on themselves and their patients.

The bottom line is, disclosure with apology is needed and appreciated by patients, and it is absolutely the right thing to do. So download that cheesy Chicago song to your iPod and practice saying (or singing) “I’m sorry.” If the butler with chemicals can do it, so can we.

Dr. Scheurer is a hospitalist and chief quality officer at the Medical University of South Carolina in Charleston. She is physician editor of The Hospitalist. Email her at [email protected].

References

1. Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, Levinson W. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA. 2003;289(8):1001-1007.
2. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. 2010;153(4):213-221.

Danielle Scheurer, MD, MSCR, SFHM

It’s 1982, and in middle-school gyms across the country, among punch bowls and parental scrutiny, young girls and boys are slow-dancing with outstretched arms to a breathtaking song by the band Chicago. The song tells of the agonizing difficulty of apology, how despite the want and need to apologize, it is just too arduous.

Fast-forward 30 years, and it is hard to believe that cheesy No. 1 Billboard hit espoused the feelings that continue to haunt healthcare providers across the country: It’s hard for me to say I’m sorry.

Others Say It

If you look at the world around us, you see apology everywhere. Customer service representatives and customer-minded industries routinely let those words flow off their tongues with ease and grace.

While I was driving down the interstate last week, the number of traffic lanes shrunk from three to two to one. Anticipating widespread aggravation from weary travelers, the state transportation department deployed several large road signs every few miles; they read “WE APOLOGIZE FOR THE INCONVENIENCE … BEAR WITH US WHILE WE MAKE YOUR ROADS SMOOTHER AND SAFER.” Those simple messages made me feel like the congestion was not a senseless waste of time, that the state’s Department of Transportation was actually being strategic and thoughtful in their rationing of lanes during rush hour in the middle of the week.

Phone-based, customer-service departments figured out the simple apology a long time ago. While holding the line for a Lands’ End customer-service representative a few weeks ago, I heard, “We apologize for the delay. Your business is important to us. Please hold the line while we address callers ahead of you.” It validated for me that those phone representatives are not just sitting around eating lunch, completely ignoring my call, and that maybe there are others who procrastinated buying back-to-school backpacks until September—and just happened to call right before me.

I even got an apology at the dry cleaner. Amidst my last batch of clothes, my astute dry cleaner apparently found a very stubborn stain, which resisted all of their usual concoctions. It was on the back of a shirt and I probably would not have even noticed it was there. But nonetheless, they sent an apology tag, with a picture of a distraught butler who seemed to have struggled with that stain for hours.

Why Not Us?

So why is “sorry” so hard in healthcare? When things happen to patients, things that are inconvenient or downright dangerous, we have great difficulty in simply saying: “Hey, I am really sorry this happened to you,” or “I am so sorry you are still here. You must be really frustrated by our inefficiencies.”

I have the distinct pleasure of overseeing my hospital’s risk-management department for a few months. This means I get to see and hear what does and doesn’t happen to patients, which, at times, is misaligned with what should or shouldn’t happen to patients. When unanticipated events occur, the group launches into an investigation of what happened, why it happened, and the risk that it could happen again. After the initial dust settles and the facts are relayed from the care team to the risk-management team, the risk team always asks of those involved: “So what does the patient and their family know?” And we get a range of answers—some polished, some fumbled, some baffled.

The next question is: “Well, what should they know?” And that is always an easy question to answer. They should know the truth. Not just some of the truth, or half the truth, or a partial truth. Not what the care team thinks the patient “can handle.” They should just get the truth. To the best of the team’s ability, they should tell the patient:

• What (they think) happened;
• Why (they think) it happened;
• What it means for the patient; and
• What they are going to do to make it not happen again.

And then the patient (and family members) deserve an apology—sincere, compassionate, genuine. The apology should be the easy part, as most providers do not always know what happened, why it happened, or what they are going to do to prevent it from happening, but they usually truly do feel sorry that it happened at all.

“Sorry”=Positive Results

Patients are unanimous in their desire to be informed if a medical error has occurred; focus groups have found that patients believe such information would enhance their trust in their physicians and would reassure them that they were receiving complete information. And they want an apology.¹

But interestingly, many physicians believe that full disclosure with apology is not warranted or appropriate, and that the apology could erode patient trust, might scare the patient, and might increase the risk of legal liability.¹

There is little evidence that disclosure is harmful or detrimental, and there is some evidence that it is beneficial to the medical industry (i.e. reduces claims and litigation costs). A study published in 2010 from the University of Michigan Health System found a disclosure-with-compensation program was associated with a 36% reduction in new claims, a 65% reduction in lawsuits, and a 59% reduction in total liability cost.²

I have witnessed this phenomenon from both sides. My mother, who has Alzheimer’s and lives in an assisted-living facility, recently was given twice the dose of her medications one morning. She was “given” her night medications by being placed in her room, which she has no recollection of (the staff are supposed to watch her take her medications). The next morning, she saw the medications and took them, then took another dose when the nurse came by to give her morning medications. It was not realized until she’d already taken the medications and the staff noticed the medicine cup from the night before. My mom said she felt a little weak and dizzy for a few hours, but nothing significant, and she fully recovered. Interestingly, my mom mentioned it in passing, but no one called to let us know a medication error had occurred. Although she was not harmed, it made us, her family, lose a little trust in the facility because we found out about it indirectly, without any acknowledgement or apology.

On the other side of the equation, I have witnessed countless numbers of patient events in which providers feel worried and uncomfortable about the effects of disclosure with apology on themselves and their patients.

The bottom line is, disclosure with apology is needed and appreciated by patients, and it is absolutely the right thing to do. So download that cheesy Chicago song to your iPod and practice saying (or singing) “I’m sorry.” If the butler with chemicals can do it, so can we.

Dr. Scheurer is a hospitalist and chief quality officer at the Medical University of South Carolina in Charleston. She is physician editor of The Hospitalist. Email her at [email protected].

References

1. Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, Levinson W. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA. 2003;289(8):1001-1007.
2. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. 2010;153(4):213-221.

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Infant’s brain damage blamed on delayed delivery

DURING DELIVERY, THE MOTHER’S PERINATOLOGIST recognized a severe shoulder dystocia. The perinatologist abandoned vaginal delivery and ordered an emergency cesarean delivery. The mother was transferred to an operating room (OR) with the baby’s head out between her legs. In the OR, the perinatologist pushed the baby’s head back into the uterus and performed a cesarean extraction. Nineteen minutes elapsed from when the vaginal delivery was abandoned and the baby was delivered.

The child was unresponsive at birth with no spontaneous movement or respiration. She was intubated and transferred to the NICU, where she was resuscitated. MRI confirmed that the child had hypoxic ischemia and severe, permanent brain damage from acute birth asphyxia. The child is blind, deaf, hypertensive, and has diffuse spasticity. She has a tracheostomy, a gastrostomy tube, and requires 24-hour care.

PARENTS’ CLAIM The perinatologist was negligent for abandoning vaginal delivery when delivery was progressing appropriately and there was no fetal distress. If the perinatologist had rotated the baby’s shoulder to the oblique position and/or used suprapubic pressure, the shoulder would have become disimpacted and the baby would have been safely delivered within seconds. Delay in delivery allowed for 19 minutes of umbilical cord compression, resulting in brain damage.

PHYSICIAN’S DEFENSE Cesarean delivery was appropriate; the baby did not suffer cord compression. Injury to the brain occurred days before delivery, based on prenatal ultrasonography.

VERDICT A $5.5 million California settlement was reached.

Failure to diagnose breast cancer: death

A 38-YEAR-OLD WOMAN went to her primary care physician (PCP) 3 years after giving birth. She reported breast pain, nipple discharge, and a dime-sized lump. The woman was still breastfeeding. An exam by the nurse practitioner (NP) was limited because the patient had breast implants. The NP suspected a galactocele and advised the patient to stop breastfeeding and apply ice packs. When the patient returned in 2 weeks, only the lump remained. The PCP determined that she had mastitis.

Five months later, she returned with additional lumps in both breasts, and was referred to a gynecologist. Ultrasonography (US) was ordered, but the patient never followed up. A year later, the patient was found to have metastatic breast cancer and died after 3 years of treatment.

ESTATE’S CLAIM The PCP and NP were negligent for not referring her for a breast biopsy when a lump was first detected.

DEFENDANTS’ DEFENSE Proper care was given. An earlier diagnosis would not have changed the outcome.

VERDICT A $750,000 Massachusetts settlement was reached.

What caused this child’s autism?

AFTER 33 HOURS OF LABOR, a baby was delivered vaginally by an ObGyn, nurse, and midwife. The child was diagnosed with autism several years later. His development is delayed, and he suffers cognitive impairment.

PARENTS’ CLAIM The child’s autism is due to a prolonged hypoxic event during labor. Fetal heart-rate monitoring demonstrated fetal distress, with a bradycardia. A cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE The child has genetic autism unrelated to the birth process.

VERDICT A $1.35 million New York settlement was reached.

Was oxytocin the culprit?

DURING AN EXTENDED LABOR, the ObGyn continued to give the mother oxytocin, although there were signs of fetal distress. The child was born with brain damage, cannot walk, talk, or see, and requires 24-hour care.

PATIENT’S CLAIM The use of oxytocin was inappropriate given the signs of fetal distress. Oxytocin caused a lack of oxygen to the child, resulting in brain damage. A cesarean delivery should have been performed when fetal distress was identified.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $12 million Illinois settlement was reached: $11 million from the hospital and $1 million from the ObGyn.

Bowel perforation, sepsis after ovary removal

DURING LEFT OOPHORECTOMY, the ObGyn encountered adhesions. Five days later, the 41-year-old patient reported severe pain. A second procedure revealed sepsis and perforation of the large bowel. A colostomy was performed. The patient underwent additional corrective operations.

PATIENT’S CLAIM The ObGyn was negligent for causing tissue damage to the colon that perforated and escalated into sepsis. A surgeon should have been consulted when the ObGyn found the adhesions, so the bowel could be properly inspected before the abdomen was closed. The physician was also negligent for not recognizing symptoms of sepsis earlier.

PHYSICIAN’S DEFENSE Bowel injury is a known complication of oophorectomy. The patient appeared to be making a fairly good recovery until infection became evident; she was immediately treated.

VERDICT A $6.3 million New Jersey verdict was returned, including $300,000 for the husband’s loss of consortium.

Traumatic delivery causes seizures

DURING CESAREAN DELIVERY, the ObGyn rotated the baby from a transverse to a cephalic lie, and used a vacuum extractor to deliver the head through the hysterotomy incision.

When the child was 25 hours old, he suffered a seizure that lasted 6 minutes. Focal seizure activity involving the left side of his body and a skull fracture were identified. He was transferred to another hospital, where radiologic studies indicated a middle right cerebral artery infarct. The child developed an ongoing seizure disorder, speech and language delays, and mild, left-sided weakness.

PARENTS’ CLAIM The baby’s head was not properly delivered through the cesarean incision nor should the ObGyn have used vacuum extraction. The combination of the rotation and use of vacuum caused trauma to the infant’s head. In addition, the baby was placed in the well-baby nursery, which was inappropriate because he was born through thick meconium, resuscitated by a neonatal nurse, and had a depressed skull fracture.

PHYSICIAN’S DEFENSE Delivery was not traumatic; all treatment was appropriate.

VERDICT A $4.6 million New York settlement was reached with the hospital and ObGyn’s insurer.

Mother gets severe headache during birth

A 35-YEAR-OLD WOMAN began having a severe headache during delivery that continued after birth. She was discharged from the hospital and collapsed at home a day later. She was returned to the ED, where she was left in a hallway for 6 hours. She lost consciousness while in the hallway. Imaging and neurologic evaluation determined that she suffered a hypoxic brain injury from intracranial bleeding. She has slow response time, difficulty with all aspects of everyday life, and requires full-time attendant care.

PATIENT’S CLAIM Although she complained of a headache, no testing was done prior to her hospital discharge. Treatment was extremely delayed in the ED; an earlier diagnosis could have prevented brain damage.

PHYSICIAN’S DEFENSE Nothing could have prevented the brain damage.

VERDICT A $3.5 million California settlement was mediated.

Shoulder dystocia; brachial plexus injury

WHEN SHOULDER DYSTOCIA was encountered during delivery, the ObGyn applied gentle pressure to deliver the head. He was assisted by an ObGyn resident. The child was born with a brachial plexus injury, causing left-arm paralysis. She underwent surgery that increased her range of motion, but she will need years of physical therapy.

PATIENT’S CLAIM The ObGyn applied excessive traction and the resident improperly applied fundal pressure.

DEFENDANTS’ DEFENSE Only gentle traction was used. The resident did not apply fundal pressure.

VERDICT A New York jury found the ObGyn at fault and awarded the patient $3.5 million. The resident was vindicated.

Was premature baby viable?

AN EXPECTANT MOTHER MISCARRIED AT HOME at 6 months’ gestation, and an ambulance was called. After the EMTs helped the mother to the ambulance, they retrieved the fetus. When the baby was seen moving its head, the EMTs requested assistance from the advanced life support (ALS) team. ALS personnel visually assessed the fetus, determined it was nonviable, and placed the baby in a small container. The mother and baby arrived at the hospital 17 minutes after the ambulance was called.

At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The baby was taken to a special-care nursery for resuscitation and then transferred to another hospital’s NICU. The baby died after 46 days from severe brain damage due to lack of oxygen.

PARENTS’ CLAIM The EMTs and ALS team should have provided better evaluation and treatment for the infant; they were not trained to determine an infant’s viability. Placing the infant inside a plastic bag inside a box with a lid further deprived the baby of oxygen.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $1 million Massachusetts settlement was reached.

Were records altered because of a delayed diagnosis?

A WOMAN FOUND A LUMP in her left breast. A gynecologist ordered mammography. In January 2006, the radiologist requested ultrasonography (US), and reported that it conclusively indicated that the mass was a cyst. The gynecologist told the patient the tests were normal; further action was unnecessary. The patient saw the gynecologist four more times before being referred to a breast surgeon. In June 2006, she underwent surgical resection and chemotherapy for a malignant breast tumor.

PATIENT’S CLAIM The gynecologist was negligent for not referring the patient to a surgeon earlier. The gynecologist altered records: excerpts from the mammogram and US reports had been scanned in with a notation that the gynecologist had told the patient to follow up with a surgeon. When the gynecologist faxed the same reports to the surgeon, the annotations were absent. The gynecologist also changed the December 2005 chart, which referred to an US she never ordered.

PHYSICIAN’S DEFENSE The gynecologist stated that she regularly “merged” two reports into one document in her practice.

VERDICT A $700,000 Pennsylvania verdict was returned.

Excessive force or standard of care?

SHOULDER DYSTOCIA occurred during labor. The child sustained left brachial plexus palsy. At age 6, his left arm is paralyzed and smaller than the right arm. He has trouble performing normal daily tasks.

PATIENT’S CLAIM The ObGyn used excessive force by pulling on the baby’s head to complete the delivery. Standard of care required the ObGyn to take a more gentle approach to achieve delivery.

PHYSICIAN’S DEFENSE Delivery was performed appropriately, and did not deviate from standard of care.

VERDICT A $20.881 million Maryland verdict was returned, including $20 million for pain and suffering. The total award was reduced to $1,531,082 when the pain and suffering award was cut to $650,000 under the state’s statutory cap.

Preterm birth from an asymptomatic UTI?

A BABY WAS BORN AT 31 WEEKS’ gestation. The child has cerebral palsy, spastic quadriplegia, and requires assistance in all aspects of life.

PARENTS’ CLAIM Chorioamnionitis from a urinary tract infection (UTI) caused preterm birth. Urinalysis performed 7 weeks earlier indicated an infection, but the second-year resident caring for the mother failed to treat the UTI. The resident should have obtained a confirming urine culture, prescribed antibiotics, and monitored the mother more closely. The resident was poorly supervised.

DEFENDANTS’ DEFENSE Chorioamnionitis developed just before birth and could not be detected or prevented. A UTI cannot remain asymptomatic for 7 weeks and still cause premature birth. The mother was at increased risk of premature delivery because she had given birth to an anencephalic infant a year earlier. She began prenatal care in the middle of her pregnancy and ignored a referral to a high-risk maternal fetal specialist.

VERDICT A New York defense verdict was returned.

Infant’s brain damage blamed on delayed delivery

DURING DELIVERY, THE MOTHER’S PERINATOLOGIST recognized a severe shoulder dystocia. The perinatologist abandoned vaginal delivery and ordered an emergency cesarean delivery. The mother was transferred to an operating room (OR) with the baby’s head out between her legs. In the OR, the perinatologist pushed the baby’s head back into the uterus and performed a cesarean extraction. Nineteen minutes elapsed from when the vaginal delivery was abandoned and the baby was delivered.

The child was unresponsive at birth with no spontaneous movement or respiration. She was intubated and transferred to the NICU, where she was resuscitated. MRI confirmed that the child had hypoxic ischemia and severe, permanent brain damage from acute birth asphyxia. The child is blind, deaf, hypertensive, and has diffuse spasticity. She has a tracheostomy, a gastrostomy tube, and requires 24-hour care.

PARENTS’ CLAIM The perinatologist was negligent for abandoning vaginal delivery when delivery was progressing appropriately and there was no fetal distress. If the perinatologist had rotated the baby’s shoulder to the oblique position and/or used suprapubic pressure, the shoulder would have become disimpacted and the baby would have been safely delivered within seconds. Delay in delivery allowed for 19 minutes of umbilical cord compression, resulting in brain damage.

PHYSICIAN’S DEFENSE Cesarean delivery was appropriate; the baby did not suffer cord compression. Injury to the brain occurred days before delivery, based on prenatal ultrasonography.

VERDICT A $5.5 million California settlement was reached.

Failure to diagnose breast cancer: death

A 38-YEAR-OLD WOMAN went to her primary care physician (PCP) 3 years after giving birth. She reported breast pain, nipple discharge, and a dime-sized lump. The woman was still breastfeeding. An exam by the nurse practitioner (NP) was limited because the patient had breast implants. The NP suspected a galactocele and advised the patient to stop breastfeeding and apply ice packs. When the patient returned in 2 weeks, only the lump remained. The PCP determined that she had mastitis.

Five months later, she returned with additional lumps in both breasts, and was referred to a gynecologist. Ultrasonography (US) was ordered, but the patient never followed up. A year later, the patient was found to have metastatic breast cancer and died after 3 years of treatment.

ESTATE’S CLAIM The PCP and NP were negligent for not referring her for a breast biopsy when a lump was first detected.

DEFENDANTS’ DEFENSE Proper care was given. An earlier diagnosis would not have changed the outcome.

VERDICT A $750,000 Massachusetts settlement was reached.

What caused this child’s autism?

AFTER 33 HOURS OF LABOR, a baby was delivered vaginally by an ObGyn, nurse, and midwife. The child was diagnosed with autism several years later. His development is delayed, and he suffers cognitive impairment.

PARENTS’ CLAIM The child’s autism is due to a prolonged hypoxic event during labor. Fetal heart-rate monitoring demonstrated fetal distress, with a bradycardia. A cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE The child has genetic autism unrelated to the birth process.

VERDICT A $1.35 million New York settlement was reached.

Was oxytocin the culprit?

DURING AN EXTENDED LABOR, the ObGyn continued to give the mother oxytocin, although there were signs of fetal distress. The child was born with brain damage, cannot walk, talk, or see, and requires 24-hour care.

PATIENT’S CLAIM The use of oxytocin was inappropriate given the signs of fetal distress. Oxytocin caused a lack of oxygen to the child, resulting in brain damage. A cesarean delivery should have been performed when fetal distress was identified.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $12 million Illinois settlement was reached: $11 million from the hospital and $1 million from the ObGyn.

Bowel perforation, sepsis after ovary removal

DURING LEFT OOPHORECTOMY, the ObGyn encountered adhesions. Five days later, the 41-year-old patient reported severe pain. A second procedure revealed sepsis and perforation of the large bowel. A colostomy was performed. The patient underwent additional corrective operations.

PATIENT’S CLAIM The ObGyn was negligent for causing tissue damage to the colon that perforated and escalated into sepsis. A surgeon should have been consulted when the ObGyn found the adhesions, so the bowel could be properly inspected before the abdomen was closed. The physician was also negligent for not recognizing symptoms of sepsis earlier.

PHYSICIAN’S DEFENSE Bowel injury is a known complication of oophorectomy. The patient appeared to be making a fairly good recovery until infection became evident; she was immediately treated.

VERDICT A $6.3 million New Jersey verdict was returned, including $300,000 for the husband’s loss of consortium.

Traumatic delivery causes seizures

DURING CESAREAN DELIVERY, the ObGyn rotated the baby from a transverse to a cephalic lie, and used a vacuum extractor to deliver the head through the hysterotomy incision.

When the child was 25 hours old, he suffered a seizure that lasted 6 minutes. Focal seizure activity involving the left side of his body and a skull fracture were identified. He was transferred to another hospital, where radiologic studies indicated a middle right cerebral artery infarct. The child developed an ongoing seizure disorder, speech and language delays, and mild, left-sided weakness.

PARENTS’ CLAIM The baby’s head was not properly delivered through the cesarean incision nor should the ObGyn have used vacuum extraction. The combination of the rotation and use of vacuum caused trauma to the infant’s head. In addition, the baby was placed in the well-baby nursery, which was inappropriate because he was born through thick meconium, resuscitated by a neonatal nurse, and had a depressed skull fracture.

PHYSICIAN’S DEFENSE Delivery was not traumatic; all treatment was appropriate.

VERDICT A $4.6 million New York settlement was reached with the hospital and ObGyn’s insurer.

Mother gets severe headache during birth

A 35-YEAR-OLD WOMAN began having a severe headache during delivery that continued after birth. She was discharged from the hospital and collapsed at home a day later. She was returned to the ED, where she was left in a hallway for 6 hours. She lost consciousness while in the hallway. Imaging and neurologic evaluation determined that she suffered a hypoxic brain injury from intracranial bleeding. She has slow response time, difficulty with all aspects of everyday life, and requires full-time attendant care.

PATIENT’S CLAIM Although she complained of a headache, no testing was done prior to her hospital discharge. Treatment was extremely delayed in the ED; an earlier diagnosis could have prevented brain damage.

PHYSICIAN’S DEFENSE Nothing could have prevented the brain damage.

VERDICT A $3.5 million California settlement was mediated.

Shoulder dystocia; brachial plexus injury

WHEN SHOULDER DYSTOCIA was encountered during delivery, the ObGyn applied gentle pressure to deliver the head. He was assisted by an ObGyn resident. The child was born with a brachial plexus injury, causing left-arm paralysis. She underwent surgery that increased her range of motion, but she will need years of physical therapy.

PATIENT’S CLAIM The ObGyn applied excessive traction and the resident improperly applied fundal pressure.

DEFENDANTS’ DEFENSE Only gentle traction was used. The resident did not apply fundal pressure.

VERDICT A New York jury found the ObGyn at fault and awarded the patient $3.5 million. The resident was vindicated.

Was premature baby viable?

AN EXPECTANT MOTHER MISCARRIED AT HOME at 6 months’ gestation, and an ambulance was called. After the EMTs helped the mother to the ambulance, they retrieved the fetus. When the baby was seen moving its head, the EMTs requested assistance from the advanced life support (ALS) team. ALS personnel visually assessed the fetus, determined it was nonviable, and placed the baby in a small container. The mother and baby arrived at the hospital 17 minutes after the ambulance was called.

At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The baby was taken to a special-care nursery for resuscitation and then transferred to another hospital’s NICU. The baby died after 46 days from severe brain damage due to lack of oxygen.

PARENTS’ CLAIM The EMTs and ALS team should have provided better evaluation and treatment for the infant; they were not trained to determine an infant’s viability. Placing the infant inside a plastic bag inside a box with a lid further deprived the baby of oxygen.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $1 million Massachusetts settlement was reached.

Were records altered because of a delayed diagnosis?

A WOMAN FOUND A LUMP in her left breast. A gynecologist ordered mammography. In January 2006, the radiologist requested ultrasonography (US), and reported that it conclusively indicated that the mass was a cyst. The gynecologist told the patient the tests were normal; further action was unnecessary. The patient saw the gynecologist four more times before being referred to a breast surgeon. In June 2006, she underwent surgical resection and chemotherapy for a malignant breast tumor.

PATIENT’S CLAIM The gynecologist was negligent for not referring the patient to a surgeon earlier. The gynecologist altered records: excerpts from the mammogram and US reports had been scanned in with a notation that the gynecologist had told the patient to follow up with a surgeon. When the gynecologist faxed the same reports to the surgeon, the annotations were absent. The gynecologist also changed the December 2005 chart, which referred to an US she never ordered.

PHYSICIAN’S DEFENSE The gynecologist stated that she regularly “merged” two reports into one document in her practice.

VERDICT A $700,000 Pennsylvania verdict was returned.

Excessive force or standard of care?

SHOULDER DYSTOCIA occurred during labor. The child sustained left brachial plexus palsy. At age 6, his left arm is paralyzed and smaller than the right arm. He has trouble performing normal daily tasks.

PATIENT’S CLAIM The ObGyn used excessive force by pulling on the baby’s head to complete the delivery. Standard of care required the ObGyn to take a more gentle approach to achieve delivery.

PHYSICIAN’S DEFENSE Delivery was performed appropriately, and did not deviate from standard of care.

VERDICT A $20.881 million Maryland verdict was returned, including $20 million for pain and suffering. The total award was reduced to $1,531,082 when the pain and suffering award was cut to $650,000 under the state’s statutory cap.

Preterm birth from an asymptomatic UTI?

A BABY WAS BORN AT 31 WEEKS’ gestation. The child has cerebral palsy, spastic quadriplegia, and requires assistance in all aspects of life.

PARENTS’ CLAIM Chorioamnionitis from a urinary tract infection (UTI) caused preterm birth. Urinalysis performed 7 weeks earlier indicated an infection, but the second-year resident caring for the mother failed to treat the UTI. The resident should have obtained a confirming urine culture, prescribed antibiotics, and monitored the mother more closely. The resident was poorly supervised.

DEFENDANTS’ DEFENSE Chorioamnionitis developed just before birth and could not be detected or prevented. A UTI cannot remain asymptomatic for 7 weeks and still cause premature birth. The mother was at increased risk of premature delivery because she had given birth to an anencephalic infant a year earlier. She began prenatal care in the middle of her pregnancy and ignored a referral to a high-risk maternal fetal specialist.

VERDICT A New York defense verdict was returned.

Infant’s brain damage blamed on delayed delivery

DURING DELIVERY, THE MOTHER’S PERINATOLOGIST recognized a severe shoulder dystocia. The perinatologist abandoned vaginal delivery and ordered an emergency cesarean delivery. The mother was transferred to an operating room (OR) with the baby’s head out between her legs. In the OR, the perinatologist pushed the baby’s head back into the uterus and performed a cesarean extraction. Nineteen minutes elapsed from when the vaginal delivery was abandoned and the baby was delivered.

The child was unresponsive at birth with no spontaneous movement or respiration. She was intubated and transferred to the NICU, where she was resuscitated. MRI confirmed that the child had hypoxic ischemia and severe, permanent brain damage from acute birth asphyxia. The child is blind, deaf, hypertensive, and has diffuse spasticity. She has a tracheostomy, a gastrostomy tube, and requires 24-hour care.

PARENTS’ CLAIM The perinatologist was negligent for abandoning vaginal delivery when delivery was progressing appropriately and there was no fetal distress. If the perinatologist had rotated the baby’s shoulder to the oblique position and/or used suprapubic pressure, the shoulder would have become disimpacted and the baby would have been safely delivered within seconds. Delay in delivery allowed for 19 minutes of umbilical cord compression, resulting in brain damage.

PHYSICIAN’S DEFENSE Cesarean delivery was appropriate; the baby did not suffer cord compression. Injury to the brain occurred days before delivery, based on prenatal ultrasonography.

VERDICT A $5.5 million California settlement was reached.

Failure to diagnose breast cancer: death

A 38-YEAR-OLD WOMAN went to her primary care physician (PCP) 3 years after giving birth. She reported breast pain, nipple discharge, and a dime-sized lump. The woman was still breastfeeding. An exam by the nurse practitioner (NP) was limited because the patient had breast implants. The NP suspected a galactocele and advised the patient to stop breastfeeding and apply ice packs. When the patient returned in 2 weeks, only the lump remained. The PCP determined that she had mastitis.

Five months later, she returned with additional lumps in both breasts, and was referred to a gynecologist. Ultrasonography (US) was ordered, but the patient never followed up. A year later, the patient was found to have metastatic breast cancer and died after 3 years of treatment.

ESTATE’S CLAIM The PCP and NP were negligent for not referring her for a breast biopsy when a lump was first detected.

DEFENDANTS’ DEFENSE Proper care was given. An earlier diagnosis would not have changed the outcome.

VERDICT A $750,000 Massachusetts settlement was reached.

What caused this child’s autism?

AFTER 33 HOURS OF LABOR, a baby was delivered vaginally by an ObGyn, nurse, and midwife. The child was diagnosed with autism several years later. His development is delayed, and he suffers cognitive impairment.

PARENTS’ CLAIM The child’s autism is due to a prolonged hypoxic event during labor. Fetal heart-rate monitoring demonstrated fetal distress, with a bradycardia. A cesarean delivery should have been performed.

PHYSICIAN’S DEFENSE The child has genetic autism unrelated to the birth process.

VERDICT A $1.35 million New York settlement was reached.

Was oxytocin the culprit?

DURING AN EXTENDED LABOR, the ObGyn continued to give the mother oxytocin, although there were signs of fetal distress. The child was born with brain damage, cannot walk, talk, or see, and requires 24-hour care.

PATIENT’S CLAIM The use of oxytocin was inappropriate given the signs of fetal distress. Oxytocin caused a lack of oxygen to the child, resulting in brain damage. A cesarean delivery should have been performed when fetal distress was identified.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $12 million Illinois settlement was reached: $11 million from the hospital and $1 million from the ObGyn.

Bowel perforation, sepsis after ovary removal

DURING LEFT OOPHORECTOMY, the ObGyn encountered adhesions. Five days later, the 41-year-old patient reported severe pain. A second procedure revealed sepsis and perforation of the large bowel. A colostomy was performed. The patient underwent additional corrective operations.

PATIENT’S CLAIM The ObGyn was negligent for causing tissue damage to the colon that perforated and escalated into sepsis. A surgeon should have been consulted when the ObGyn found the adhesions, so the bowel could be properly inspected before the abdomen was closed. The physician was also negligent for not recognizing symptoms of sepsis earlier.

PHYSICIAN’S DEFENSE Bowel injury is a known complication of oophorectomy. The patient appeared to be making a fairly good recovery until infection became evident; she was immediately treated.

VERDICT A $6.3 million New Jersey verdict was returned, including $300,000 for the husband’s loss of consortium.

Traumatic delivery causes seizures

DURING CESAREAN DELIVERY, the ObGyn rotated the baby from a transverse to a cephalic lie, and used a vacuum extractor to deliver the head through the hysterotomy incision.

When the child was 25 hours old, he suffered a seizure that lasted 6 minutes. Focal seizure activity involving the left side of his body and a skull fracture were identified. He was transferred to another hospital, where radiologic studies indicated a middle right cerebral artery infarct. The child developed an ongoing seizure disorder, speech and language delays, and mild, left-sided weakness.

PARENTS’ CLAIM The baby’s head was not properly delivered through the cesarean incision nor should the ObGyn have used vacuum extraction. The combination of the rotation and use of vacuum caused trauma to the infant’s head. In addition, the baby was placed in the well-baby nursery, which was inappropriate because he was born through thick meconium, resuscitated by a neonatal nurse, and had a depressed skull fracture.

PHYSICIAN’S DEFENSE Delivery was not traumatic; all treatment was appropriate.

VERDICT A $4.6 million New York settlement was reached with the hospital and ObGyn’s insurer.

Mother gets severe headache during birth

A 35-YEAR-OLD WOMAN began having a severe headache during delivery that continued after birth. She was discharged from the hospital and collapsed at home a day later. She was returned to the ED, where she was left in a hallway for 6 hours. She lost consciousness while in the hallway. Imaging and neurologic evaluation determined that she suffered a hypoxic brain injury from intracranial bleeding. She has slow response time, difficulty with all aspects of everyday life, and requires full-time attendant care.

PATIENT’S CLAIM Although she complained of a headache, no testing was done prior to her hospital discharge. Treatment was extremely delayed in the ED; an earlier diagnosis could have prevented brain damage.

PHYSICIAN’S DEFENSE Nothing could have prevented the brain damage.

VERDICT A $3.5 million California settlement was mediated.

Shoulder dystocia; brachial plexus injury

WHEN SHOULDER DYSTOCIA was encountered during delivery, the ObGyn applied gentle pressure to deliver the head. He was assisted by an ObGyn resident. The child was born with a brachial plexus injury, causing left-arm paralysis. She underwent surgery that increased her range of motion, but she will need years of physical therapy.

PATIENT’S CLAIM The ObGyn applied excessive traction and the resident improperly applied fundal pressure.

DEFENDANTS’ DEFENSE Only gentle traction was used. The resident did not apply fundal pressure.

VERDICT A New York jury found the ObGyn at fault and awarded the patient $3.5 million. The resident was vindicated.

Was premature baby viable?

AN EXPECTANT MOTHER MISCARRIED AT HOME at 6 months’ gestation, and an ambulance was called. After the EMTs helped the mother to the ambulance, they retrieved the fetus. When the baby was seen moving its head, the EMTs requested assistance from the advanced life support (ALS) team. ALS personnel visually assessed the fetus, determined it was nonviable, and placed the baby in a small container. The mother and baby arrived at the hospital 17 minutes after the ambulance was called.

At the hospital, a nurse noticed that the fetus was warm and had a heartbeat. The baby was taken to a special-care nursery for resuscitation and then transferred to another hospital’s NICU. The baby died after 46 days from severe brain damage due to lack of oxygen.

PARENTS’ CLAIM The EMTs and ALS team should have provided better evaluation and treatment for the infant; they were not trained to determine an infant’s viability. Placing the infant inside a plastic bag inside a box with a lid further deprived the baby of oxygen.

DEFENDANTS’ DEFENSE The case was settled before trial.

VERDICT A $1 million Massachusetts settlement was reached.

Were records altered because of a delayed diagnosis?

A WOMAN FOUND A LUMP in her left breast. A gynecologist ordered mammography. In January 2006, the radiologist requested ultrasonography (US), and reported that it conclusively indicated that the mass was a cyst. The gynecologist told the patient the tests were normal; further action was unnecessary. The patient saw the gynecologist four more times before being referred to a breast surgeon. In June 2006, she underwent surgical resection and chemotherapy for a malignant breast tumor.

PATIENT’S CLAIM The gynecologist was negligent for not referring the patient to a surgeon earlier. The gynecologist altered records: excerpts from the mammogram and US reports had been scanned in with a notation that the gynecologist had told the patient to follow up with a surgeon. When the gynecologist faxed the same reports to the surgeon, the annotations were absent. The gynecologist also changed the December 2005 chart, which referred to an US she never ordered.

PHYSICIAN’S DEFENSE The gynecologist stated that she regularly “merged” two reports into one document in her practice.

VERDICT A $700,000 Pennsylvania verdict was returned.

Excessive force or standard of care?

SHOULDER DYSTOCIA occurred during labor. The child sustained left brachial plexus palsy. At age 6, his left arm is paralyzed and smaller than the right arm. He has trouble performing normal daily tasks.

PATIENT’S CLAIM The ObGyn used excessive force by pulling on the baby’s head to complete the delivery. Standard of care required the ObGyn to take a more gentle approach to achieve delivery.

PHYSICIAN’S DEFENSE Delivery was performed appropriately, and did not deviate from standard of care.

VERDICT A $20.881 million Maryland verdict was returned, including $20 million for pain and suffering. The total award was reduced to $1,531,082 when the pain and suffering award was cut to $650,000 under the state’s statutory cap.

Preterm birth from an asymptomatic UTI?

A BABY WAS BORN AT 31 WEEKS’ gestation. The child has cerebral palsy, spastic quadriplegia, and requires assistance in all aspects of life.

PARENTS’ CLAIM Chorioamnionitis from a urinary tract infection (UTI) caused preterm birth. Urinalysis performed 7 weeks earlier indicated an infection, but the second-year resident caring for the mother failed to treat the UTI. The resident should have obtained a confirming urine culture, prescribed antibiotics, and monitored the mother more closely. The resident was poorly supervised.

DEFENDANTS’ DEFENSE Chorioamnionitis developed just before birth and could not be detected or prevented. A UTI cannot remain asymptomatic for 7 weeks and still cause premature birth. The mother was at increased risk of premature delivery because she had given birth to an anencephalic infant a year earlier. She began prenatal care in the middle of her pregnancy and ignored a referral to a high-risk maternal fetal specialist.

VERDICT A New York defense verdict was returned.

Susan D. Hutchins, MD, has been named medical director of hospitalist services at Memorial Hermann The Woodlands Hospital in The Woodlands, Texas. Dr. Hutchins’ new responsibilities include managing nine hospitalists, two nurse practitioners, and one registered nurse as part of Memorial Hermann’s inpatient hospitalist program.

Lewis L. Low, MD, FCCM, FACP, has been promoted to senior vice president and chief medical officer of Legacy Health System in the Portland, Ore., and Vancouver, Wash., areas. Dr. Low has been commended by his colleagues for his supervision of several of Legacy’s hospitalist programs within the Portland metropolitan area.

Business Moves

Helena Regional Medical Center in Helena, Ark., began offering hospitalist services in September. Hospitalists will staff the 155-bed facility 24 hours a day in order to further the hospital’s mission of “Quality Care, Right Here.”

Inpatient Physicians of Southwest Florida (ISSF), a newly formed hospitalist group, has begun offering HM services in the Lee Memorial Health System’s Fort Myers, Fla.-area hospitals. ISSF is a collaborative between Brentwood, Tenn.-based Cogent HMG and the Hospitalist Group of Southwest Florida.

The Mauldin, S.C.-based OB Hospitalist Group has expanded its services to include the Owensboro Medical Health System’s 477-bed flagship facility in Owensboro, Ky., which serves northwestern Kentucky and southwestern Indiana.

—Michael O’Neal

Susan D. Hutchins, MD, has been named medical director of hospitalist services at Memorial Hermann The Woodlands Hospital in The Woodlands, Texas. Dr. Hutchins’ new responsibilities include managing nine hospitalists, two nurse practitioners, and one registered nurse as part of Memorial Hermann’s inpatient hospitalist program.

Lewis L. Low, MD, FCCM, FACP, has been promoted to senior vice president and chief medical officer of Legacy Health System in the Portland, Ore., and Vancouver, Wash., areas. Dr. Low has been commended by his colleagues for his supervision of several of Legacy’s hospitalist programs within the Portland metropolitan area.

Business Moves

Helena Regional Medical Center in Helena, Ark., began offering hospitalist services in September. Hospitalists will staff the 155-bed facility 24 hours a day in order to further the hospital’s mission of “Quality Care, Right Here.”

Inpatient Physicians of Southwest Florida (ISSF), a newly formed hospitalist group, has begun offering HM services in the Lee Memorial Health System’s Fort Myers, Fla.-area hospitals. ISSF is a collaborative between Brentwood, Tenn.-based Cogent HMG and the Hospitalist Group of Southwest Florida.

The Mauldin, S.C.-based OB Hospitalist Group has expanded its services to include the Owensboro Medical Health System’s 477-bed flagship facility in Owensboro, Ky., which serves northwestern Kentucky and southwestern Indiana.

—Michael O’Neal

Susan D. Hutchins, MD, has been named medical director of hospitalist services at Memorial Hermann The Woodlands Hospital in The Woodlands, Texas. Dr. Hutchins’ new responsibilities include managing nine hospitalists, two nurse practitioners, and one registered nurse as part of Memorial Hermann’s inpatient hospitalist program.

Lewis L. Low, MD, FCCM, FACP, has been promoted to senior vice president and chief medical officer of Legacy Health System in the Portland, Ore., and Vancouver, Wash., areas. Dr. Low has been commended by his colleagues for his supervision of several of Legacy’s hospitalist programs within the Portland metropolitan area.

Business Moves

Helena Regional Medical Center in Helena, Ark., began offering hospitalist services in September. Hospitalists will staff the 155-bed facility 24 hours a day in order to further the hospital’s mission of “Quality Care, Right Here.”

Inpatient Physicians of Southwest Florida (ISSF), a newly formed hospitalist group, has begun offering HM services in the Lee Memorial Health System’s Fort Myers, Fla.-area hospitals. ISSF is a collaborative between Brentwood, Tenn.-based Cogent HMG and the Hospitalist Group of Southwest Florida.

The Mauldin, S.C.-based OB Hospitalist Group has expanded its services to include the Owensboro Medical Health System’s 477-bed flagship facility in Owensboro, Ky., which serves northwestern Kentucky and southwestern Indiana.

—Michael O’Neal

Physicians often have medical interests other than clinical practice. A restrictive employment agreement could quash those endeavors. Physician employment agreements play an integral role in establishing the legal, financial, and operational structure of the relationship between employer and physician/employee.

One clause of particular interest to many physicians is the clause defining what a physician can and cannot do outside of providing medical services on behalf of their employer—meaning, can the physician engage in such outside activities as moonlighting, volunteering, or serving as an expert witness? Moreover, if income is generated from these outside activities, who does that income belong to—the physician or the employer?

These questions should be clearly answered in the employment agreement. And if the answers in the employment agreement do not mirror the physician’s wishes, then these terms should be negotiated with the employer and memorialized in the employment agreement.

Consult Your Contract

The first question is whether the physician is even permitted under their employment agreement to participate in activities or perform services outside of employment. Some employers prohibit engagement in outside activities and services altogether, while other employers permit certain activities that do not interfere with the physician’s day-to-day responsibilities. Physicians should be aware of requirements that give the employer the right to approve or reject outside activities. If the physician wants to be able to engage in moonlighting, expert witness consultations and testimony, speaking opportunities, volunteer efforts, teaching, research, or publishing, the physician’s desired activities should be specifically identified in the employment agreement as permitted activities.

For example: Dr. A was joining a medical practice and was presented with the group’s template employment agreement. The draft agreement precluded Dr. A from participating in any medically related outside activities. In the past, Dr. A had served as a volunteer doctor for the local marathon, a medical expert witness, and was a frequent paid speaker at conferences. For Dr. A, a prohibition on outside medical activities did not align with his interests. With minimal discussion, the practice permitted Dr. A to identify the outside activities that he could conduct without violating his employment agreement:

If a physician is permitted to engage in outside activities or services, the second question is whether income generated from such activities belongs to the physician or the employer. This often is a topic of negotiation. Physician and employer frequently do not see eye to eye on this issue. Physicians, on the one hand, often view the income generated from permitted outside activities to be separate and apart from his or her services on behalf of the employer, and thus are outside the reach of the practice. This position is strengthened if the activity occurs on the physician’s own time and outside of the employer’s hours of operation. Employers, on the other hand, often view income from outside activities as part of the employment relationship with the physician. Some employers are of the belief that the physician would not have had the opportunity to participate in the outside activity but for the physician’s employment with the particular employer.

Dr. A’s employer felt that it already was conceding by allowing Dr. A to engage in outside activities and insisted that any payment received by him for these services should be remitted to the practice. Dr. A agreed to this and negotiated for the outside activity monies to be included in his collection amounts, which was a factor in calculating Dr. A’s compensation:

The last question is whether outside activities are covered by the physician’s malpractice insurance policy. If the employer provides the policy for the benefit of the physician, the employer—and the malpractice insurance carrier—may exclude activities performed by the physician outside of his or her employment with that employer. This often is an issue for physicians who want to moonlight, as moonlighting for a third party frequently is excluded from coverage. It is important that the physician consult the malpractice insurance carrier to confirm whether certain activities are covered under the policy. It may be the case that a separate policy is required to insure the physician’s outside activities, even those activities that are unpaid.

Contract clauses describing what the physician can and cannot do outside of the employment relationship are of key importance. These clauses should mirror the individual physician’s medically related and extracurricular interests, and the financial benefits of these activities—if any—should be addressed in the employment agreement. Don’t forget to check with the insurance carrier to ensure that the activity is covered by the policy, as even volunteering medical services could expose a physician. It is best to address these issues at the onset of the employer-employee relationship. That way, all parties are on the same page from the beginning.

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

Physicians often have medical interests other than clinical practice. A restrictive employment agreement could quash those endeavors. Physician employment agreements play an integral role in establishing the legal, financial, and operational structure of the relationship between employer and physician/employee.

One clause of particular interest to many physicians is the clause defining what a physician can and cannot do outside of providing medical services on behalf of their employer—meaning, can the physician engage in such outside activities as moonlighting, volunteering, or serving as an expert witness? Moreover, if income is generated from these outside activities, who does that income belong to—the physician or the employer?

These questions should be clearly answered in the employment agreement. And if the answers in the employment agreement do not mirror the physician’s wishes, then these terms should be negotiated with the employer and memorialized in the employment agreement.

Consult Your Contract

The first question is whether the physician is even permitted under their employment agreement to participate in activities or perform services outside of employment. Some employers prohibit engagement in outside activities and services altogether, while other employers permit certain activities that do not interfere with the physician’s day-to-day responsibilities. Physicians should be aware of requirements that give the employer the right to approve or reject outside activities. If the physician wants to be able to engage in moonlighting, expert witness consultations and testimony, speaking opportunities, volunteer efforts, teaching, research, or publishing, the physician’s desired activities should be specifically identified in the employment agreement as permitted activities.

For example: Dr. A was joining a medical practice and was presented with the group’s template employment agreement. The draft agreement precluded Dr. A from participating in any medically related outside activities. In the past, Dr. A had served as a volunteer doctor for the local marathon, a medical expert witness, and was a frequent paid speaker at conferences. For Dr. A, a prohibition on outside medical activities did not align with his interests. With minimal discussion, the practice permitted Dr. A to identify the outside activities that he could conduct without violating his employment agreement:

If a physician is permitted to engage in outside activities or services, the second question is whether income generated from such activities belongs to the physician or the employer. This often is a topic of negotiation. Physician and employer frequently do not see eye to eye on this issue. Physicians, on the one hand, often view the income generated from permitted outside activities to be separate and apart from his or her services on behalf of the employer, and thus are outside the reach of the practice. This position is strengthened if the activity occurs on the physician’s own time and outside of the employer’s hours of operation. Employers, on the other hand, often view income from outside activities as part of the employment relationship with the physician. Some employers are of the belief that the physician would not have had the opportunity to participate in the outside activity but for the physician’s employment with the particular employer.

Dr. A’s employer felt that it already was conceding by allowing Dr. A to engage in outside activities and insisted that any payment received by him for these services should be remitted to the practice. Dr. A agreed to this and negotiated for the outside activity monies to be included in his collection amounts, which was a factor in calculating Dr. A’s compensation:

The last question is whether outside activities are covered by the physician’s malpractice insurance policy. If the employer provides the policy for the benefit of the physician, the employer—and the malpractice insurance carrier—may exclude activities performed by the physician outside of his or her employment with that employer. This often is an issue for physicians who want to moonlight, as moonlighting for a third party frequently is excluded from coverage. It is important that the physician consult the malpractice insurance carrier to confirm whether certain activities are covered under the policy. It may be the case that a separate policy is required to insure the physician’s outside activities, even those activities that are unpaid.

Contract clauses describing what the physician can and cannot do outside of the employment relationship are of key importance. These clauses should mirror the individual physician’s medically related and extracurricular interests, and the financial benefits of these activities—if any—should be addressed in the employment agreement. Don’t forget to check with the insurance carrier to ensure that the activity is covered by the policy, as even volunteering medical services could expose a physician. It is best to address these issues at the onset of the employer-employee relationship. That way, all parties are on the same page from the beginning.

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

Physicians often have medical interests other than clinical practice. A restrictive employment agreement could quash those endeavors. Physician employment agreements play an integral role in establishing the legal, financial, and operational structure of the relationship between employer and physician/employee.

One clause of particular interest to many physicians is the clause defining what a physician can and cannot do outside of providing medical services on behalf of their employer—meaning, can the physician engage in such outside activities as moonlighting, volunteering, or serving as an expert witness? Moreover, if income is generated from these outside activities, who does that income belong to—the physician or the employer?

These questions should be clearly answered in the employment agreement. And if the answers in the employment agreement do not mirror the physician’s wishes, then these terms should be negotiated with the employer and memorialized in the employment agreement.

Consult Your Contract

The first question is whether the physician is even permitted under their employment agreement to participate in activities or perform services outside of employment. Some employers prohibit engagement in outside activities and services altogether, while other employers permit certain activities that do not interfere with the physician’s day-to-day responsibilities. Physicians should be aware of requirements that give the employer the right to approve or reject outside activities. If the physician wants to be able to engage in moonlighting, expert witness consultations and testimony, speaking opportunities, volunteer efforts, teaching, research, or publishing, the physician’s desired activities should be specifically identified in the employment agreement as permitted activities.

For example: Dr. A was joining a medical practice and was presented with the group’s template employment agreement. The draft agreement precluded Dr. A from participating in any medically related outside activities. In the past, Dr. A had served as a volunteer doctor for the local marathon, a medical expert witness, and was a frequent paid speaker at conferences. For Dr. A, a prohibition on outside medical activities did not align with his interests. With minimal discussion, the practice permitted Dr. A to identify the outside activities that he could conduct without violating his employment agreement:

If a physician is permitted to engage in outside activities or services, the second question is whether income generated from such activities belongs to the physician or the employer. This often is a topic of negotiation. Physician and employer frequently do not see eye to eye on this issue. Physicians, on the one hand, often view the income generated from permitted outside activities to be separate and apart from his or her services on behalf of the employer, and thus are outside the reach of the practice. This position is strengthened if the activity occurs on the physician’s own time and outside of the employer’s hours of operation. Employers, on the other hand, often view income from outside activities as part of the employment relationship with the physician. Some employers are of the belief that the physician would not have had the opportunity to participate in the outside activity but for the physician’s employment with the particular employer.

Dr. A’s employer felt that it already was conceding by allowing Dr. A to engage in outside activities and insisted that any payment received by him for these services should be remitted to the practice. Dr. A agreed to this and negotiated for the outside activity monies to be included in his collection amounts, which was a factor in calculating Dr. A’s compensation:

The last question is whether outside activities are covered by the physician’s malpractice insurance policy. If the employer provides the policy for the benefit of the physician, the employer—and the malpractice insurance carrier—may exclude activities performed by the physician outside of his or her employment with that employer. This often is an issue for physicians who want to moonlight, as moonlighting for a third party frequently is excluded from coverage. It is important that the physician consult the malpractice insurance carrier to confirm whether certain activities are covered under the policy. It may be the case that a separate policy is required to insure the physician’s outside activities, even those activities that are unpaid.

Contract clauses describing what the physician can and cannot do outside of the employment relationship are of key importance. These clauses should mirror the individual physician’s medically related and extracurricular interests, and the financial benefits of these activities—if any—should be addressed in the employment agreement. Don’t forget to check with the insurance carrier to ensure that the activity is covered by the policy, as even volunteering medical services could expose a physician. It is best to address these issues at the onset of the employer-employee relationship. That way, all parties are on the same page from the beginning.

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

Faulty equipment blamed for improper diagnosis: $78M

AT 36 WEEKS’ GESTATION, a woman went to the emergency department (ED) with abdominal pain. After ultrasonography (US), a nurse told her the fetus had died in utero, but the mother continued to feel fetal movement. The ED physician requested a second US, but it took 75 minutes for a radiology technician to arrive. This US showed a beating fetal heart with placental abruption. After cesarean delivery, the child was found to have cerebral palsy.

PATIENT’S CLAIM The first US was performed by an inexperienced technician using outdated equipment and the wrong transducer. An experienced technician with newer equipment should have been immediately available. The ED physician did not react when fetal distress was first identified.

DEFENDANTS’ DEFENSE The ED physician was told that the baby had died. Perhaps the child’s heart had started again by the time the second US was performed and a heartbeat found. The hospital denied negligence.

VERDICT A Pennsylvania jury found the ED physician not negligent; the hospital was 100% at fault. A $78.5 million verdict included $1.5 million in emotional distress to the mother, $10 million in pain and suffering for the child, $2million in lost future earnings, and the rest in future medical expenses.

Ligated ureter found after hysterectomy

A 50-YEAR-OLD WOMAN underwent laparoscopically assisted vaginal hysterectomy. She went to the ED with pain 6 days later. Imaging studies indicated a ligated ureter; a nephrostomy tube was placed. She required a nephrostomy bag for 4 months and underwent two repair operations.

PATIENT’S CLAIM The patient’s ureter was ligated and/or constricted during surgery. The gynecologist was negligent in failing to recognize and repair the injury during surgery.

PHYSICIAN’S DEFENSE The ureter was not ligated during surgery; therefore it could not have been discovered. In addition, injury to a ureter is a known risk of the procedure.

VERDICT An Arizona defense verdict was returned.

Myomectomy after cesarean; mother dies

IMMEDIATELY AFTER A WOMAN with preeclampsia had a cesarean delivery, she underwent a myomectomy. The day before discharge, her abdominal incision opened and a clear liquid drained. The day after discharge, she went to the ED with intense abdominal pain. Necrotizing fasciitis was found and debridement surgery performed. She was transferred to another hospital but died of sepsis several days later.

ESTATE’S CLAIM The infection occurred because the myomectomy was performed immediately following cesarean delivery. Prophylactic antibiotics were not prescribed before surgery. The mother was not fully informed as to the risks of concurrent operations. The ObGyns failed to recognize the infection before discharging the patient.

PHYSICIANS’ DEFENSE The patient was fully informed of the risks of surgery; it was reasonable to perform myomectomy immediately following cesarean delivery. There were no signs or symptoms of infection before discharge. Cesarean incisions open about 30% of the time—not a cause for concern. Prophylactic antibiotics for cesarean procedures are not standard of care. The patient’s infection was caused by a rapidly spreading, rare bacterium.

VERDICT A Michigan defense verdict was returned.

TOLAC to cesarean: baby has cerebral palsy

A WOMAN WANTED A TRIAL OF LABOR after a previous cesarean delivery (TOLAC). During labor, fetal distress was noted, and a cesarean delivery was performed. Uterine rupture had occurred. The baby has spastic cerebral palsy with significantly impaired neuromotor and cognitive abilities.

PARENTS’ CLAIM The hospital staff and physicians overlooked earlier fetal distress. A timelier delivery would have prevented the child’s injuries.

DEFENDANTs’ DEFENSE The hospital reached a confidential settlement. The ObGyns claimed fetal tracings were not suggestive of uterine rupture; they met the standard of care.

VERDICT A Texas defense verdict was returned.

Problems escalate after amniocentesis

WHEN GESTATIONAL DIABETES WAS DIAGNOSED at 33 weeks’ gestation, a family practitioner (FP) referred the mother to an ObGyn practice. Two ObGyns performed amniocentesis to check fetal lung maturity. After the procedure, fetal distress was noted, and the ObGyns instructed the FP to induce labor.

The baby suffered brain damage, had seizures, and has cerebral palsy. She was born without kidney function. By age 10, she had 2 kidney transplant operations and functions at a pre-kindergarten level.

PATIENT’S CLAIM The mother was not fully informed of the risks of and alternatives to amniocentesis. Although complications arose before amniocentesis, the test proceeded. The ObGyns were negligent in not performing cesarean delivery when fetal distress was detected.

DEFENDANTS’ DEFENSE The FP and hospital settled prior to trial. The ObGyns claimed that their care was an appropriate alternative to the actions the patient claimed should have been taken.

VERDICT Costs for the child’s care had reached $1.4 million before trial. A $9 million Virginia verdict was returned that included $7 million for the child and $2 million for the mother, but the settlement was reduced by the state cap.

Did HT cause breast cancer?

A 52-YEAR-OLD WOMAN was prescribed conjugated estrogens/medroxyprogesterone acetate (Prempro, Wyeth, Inc.) for hormone therapy by her gynecologist.

After taking the drug for 5 years, the patient developed invasive breast cancer. She underwent a lumpectomy, chemotherapy, and three reconstructive surgeries.

PATIENT’S CLAIM The manufacturer failed to warn of a woman’s risk of developing breast cancer while taking the product.

DEFENDANT’S DEFENSE Prempro alone does not cause cancer. The drug is just one of many contributing factors that may or may not increase the risk of developing breast cancer.

VERDICT A $3.75 million Connecticut verdict was returned for the patient plus $250,000 to her husband for loss of consortium.

Failure to diagnose preeclampsia—twice

AT 28 WEEKS’ GESTATION, a woman with a history of hypertension went to an ED with headache, nausea, vomiting, cramping, and ringing in her ears. After waiting 4 hours before being seen, her BP was 150/108 mm Hg and normal fetal heart tones were heard. The ED physician diagnosed otitis media and discharged her.

Later that evening, the patient returned to the ED with similar symptoms. A urine specimen showed significant proteinuria and the fetal heart rate was 158 bpm. A second ED physician diagnosed a urinary tract infection, prescribed antibiotics and pain medication, and sent her home.

A few hours later, she returned to the ED by ambulance suffering from eclamptic seizures. Her BP was 174/121 mm Hg, and no fetal heart tones were heard. She delivered a stillborn child by cesarean delivery.

PATIENT’S CLAIM The ED physicians were negligent in failing to diagnose preeclampsia at the first two visits.

PHYSICIANS’ DEFENSE The first ED physician settled for $45,000 while serving a prison sentence after conviction on two sex-abuse felonies related to his treatment of female patients at the same ED. The second ED physician denied negligence.

VERDICT A $50,000 Alabama verdict was returned for compensatory damages for the mother and $600,000 punitive damages for the stillborn child.

Inflated Foley catheter injures mother

DURING A LONG AND DIFFICULT LABOR, an ObGyn used forceps to complete delivery of a 31-year-old woman’s first child. The baby was healthy, but the mother has suffered urinary incontinence since delivery. Despite several repair operations, the condition remains.

PATIENT’S CLAIM The ObGyn was negligent in failing to remove a fully inflated Foley catheter before beginning delivery, leading to a urethral sphincter injury.

PHYSICIAN’S DEFENSE The decision regarding removal of the catheter was a matter of hospital policy. The ObGyn blamed improper catheter placement on the nurses.

VERDICT A Kentucky defense verdict was returned.

Faulty equipment blamed for improper diagnosis: $78M

AT 36 WEEKS’ GESTATION, a woman went to the emergency department (ED) with abdominal pain. After ultrasonography (US), a nurse told her the fetus had died in utero, but the mother continued to feel fetal movement. The ED physician requested a second US, but it took 75 minutes for a radiology technician to arrive. This US showed a beating fetal heart with placental abruption. After cesarean delivery, the child was found to have cerebral palsy.

PATIENT’S CLAIM The first US was performed by an inexperienced technician using outdated equipment and the wrong transducer. An experienced technician with newer equipment should have been immediately available. The ED physician did not react when fetal distress was first identified.

DEFENDANTS’ DEFENSE The ED physician was told that the baby had died. Perhaps the child’s heart had started again by the time the second US was performed and a heartbeat found. The hospital denied negligence.

VERDICT A Pennsylvania jury found the ED physician not negligent; the hospital was 100% at fault. A $78.5 million verdict included $1.5 million in emotional distress to the mother, $10 million in pain and suffering for the child, $2million in lost future earnings, and the rest in future medical expenses.

Ligated ureter found after hysterectomy

A 50-YEAR-OLD WOMAN underwent laparoscopically assisted vaginal hysterectomy. She went to the ED with pain 6 days later. Imaging studies indicated a ligated ureter; a nephrostomy tube was placed. She required a nephrostomy bag for 4 months and underwent two repair operations.

PATIENT’S CLAIM The patient’s ureter was ligated and/or constricted during surgery. The gynecologist was negligent in failing to recognize and repair the injury during surgery.

PHYSICIAN’S DEFENSE The ureter was not ligated during surgery; therefore it could not have been discovered. In addition, injury to a ureter is a known risk of the procedure.

VERDICT An Arizona defense verdict was returned.

Myomectomy after cesarean; mother dies

IMMEDIATELY AFTER A WOMAN with preeclampsia had a cesarean delivery, she underwent a myomectomy. The day before discharge, her abdominal incision opened and a clear liquid drained. The day after discharge, she went to the ED with intense abdominal pain. Necrotizing fasciitis was found and debridement surgery performed. She was transferred to another hospital but died of sepsis several days later.

ESTATE’S CLAIM The infection occurred because the myomectomy was performed immediately following cesarean delivery. Prophylactic antibiotics were not prescribed before surgery. The mother was not fully informed as to the risks of concurrent operations. The ObGyns failed to recognize the infection before discharging the patient.

PHYSICIANS’ DEFENSE The patient was fully informed of the risks of surgery; it was reasonable to perform myomectomy immediately following cesarean delivery. There were no signs or symptoms of infection before discharge. Cesarean incisions open about 30% of the time—not a cause for concern. Prophylactic antibiotics for cesarean procedures are not standard of care. The patient’s infection was caused by a rapidly spreading, rare bacterium.

VERDICT A Michigan defense verdict was returned.

TOLAC to cesarean: baby has cerebral palsy

A WOMAN WANTED A TRIAL OF LABOR after a previous cesarean delivery (TOLAC). During labor, fetal distress was noted, and a cesarean delivery was performed. Uterine rupture had occurred. The baby has spastic cerebral palsy with significantly impaired neuromotor and cognitive abilities.

PARENTS’ CLAIM The hospital staff and physicians overlooked earlier fetal distress. A timelier delivery would have prevented the child’s injuries.

DEFENDANTs’ DEFENSE The hospital reached a confidential settlement. The ObGyns claimed fetal tracings were not suggestive of uterine rupture; they met the standard of care.

VERDICT A Texas defense verdict was returned.

Problems escalate after amniocentesis

WHEN GESTATIONAL DIABETES WAS DIAGNOSED at 33 weeks’ gestation, a family practitioner (FP) referred the mother to an ObGyn practice. Two ObGyns performed amniocentesis to check fetal lung maturity. After the procedure, fetal distress was noted, and the ObGyns instructed the FP to induce labor.

The baby suffered brain damage, had seizures, and has cerebral palsy. She was born without kidney function. By age 10, she had 2 kidney transplant operations and functions at a pre-kindergarten level.

PATIENT’S CLAIM The mother was not fully informed of the risks of and alternatives to amniocentesis. Although complications arose before amniocentesis, the test proceeded. The ObGyns were negligent in not performing cesarean delivery when fetal distress was detected.

DEFENDANTS’ DEFENSE The FP and hospital settled prior to trial. The ObGyns claimed that their care was an appropriate alternative to the actions the patient claimed should have been taken.

VERDICT Costs for the child’s care had reached $1.4 million before trial. A $9 million Virginia verdict was returned that included $7 million for the child and $2 million for the mother, but the settlement was reduced by the state cap.

Did HT cause breast cancer?

A 52-YEAR-OLD WOMAN was prescribed conjugated estrogens/medroxyprogesterone acetate (Prempro, Wyeth, Inc.) for hormone therapy by her gynecologist.

After taking the drug for 5 years, the patient developed invasive breast cancer. She underwent a lumpectomy, chemotherapy, and three reconstructive surgeries.

PATIENT’S CLAIM The manufacturer failed to warn of a woman’s risk of developing breast cancer while taking the product.

DEFENDANT’S DEFENSE Prempro alone does not cause cancer. The drug is just one of many contributing factors that may or may not increase the risk of developing breast cancer.

VERDICT A $3.75 million Connecticut verdict was returned for the patient plus $250,000 to her husband for loss of consortium.

Failure to diagnose preeclampsia—twice

AT 28 WEEKS’ GESTATION, a woman with a history of hypertension went to an ED with headache, nausea, vomiting, cramping, and ringing in her ears. After waiting 4 hours before being seen, her BP was 150/108 mm Hg and normal fetal heart tones were heard. The ED physician diagnosed otitis media and discharged her.

Later that evening, the patient returned to the ED with similar symptoms. A urine specimen showed significant proteinuria and the fetal heart rate was 158 bpm. A second ED physician diagnosed a urinary tract infection, prescribed antibiotics and pain medication, and sent her home.

A few hours later, she returned to the ED by ambulance suffering from eclamptic seizures. Her BP was 174/121 mm Hg, and no fetal heart tones were heard. She delivered a stillborn child by cesarean delivery.

PATIENT’S CLAIM The ED physicians were negligent in failing to diagnose preeclampsia at the first two visits.

PHYSICIANS’ DEFENSE The first ED physician settled for $45,000 while serving a prison sentence after conviction on two sex-abuse felonies related to his treatment of female patients at the same ED. The second ED physician denied negligence.

VERDICT A $50,000 Alabama verdict was returned for compensatory damages for the mother and $600,000 punitive damages for the stillborn child.

Inflated Foley catheter injures mother

DURING A LONG AND DIFFICULT LABOR, an ObGyn used forceps to complete delivery of a 31-year-old woman’s first child. The baby was healthy, but the mother has suffered urinary incontinence since delivery. Despite several repair operations, the condition remains.

PATIENT’S CLAIM The ObGyn was negligent in failing to remove a fully inflated Foley catheter before beginning delivery, leading to a urethral sphincter injury.

PHYSICIAN’S DEFENSE The decision regarding removal of the catheter was a matter of hospital policy. The ObGyn blamed improper catheter placement on the nurses.

VERDICT A Kentucky defense verdict was returned.

Faulty equipment blamed for improper diagnosis: $78M

AT 36 WEEKS’ GESTATION, a woman went to the emergency department (ED) with abdominal pain. After ultrasonography (US), a nurse told her the fetus had died in utero, but the mother continued to feel fetal movement. The ED physician requested a second US, but it took 75 minutes for a radiology technician to arrive. This US showed a beating fetal heart with placental abruption. After cesarean delivery, the child was found to have cerebral palsy.

PATIENT’S CLAIM The first US was performed by an inexperienced technician using outdated equipment and the wrong transducer. An experienced technician with newer equipment should have been immediately available. The ED physician did not react when fetal distress was first identified.

DEFENDANTS’ DEFENSE The ED physician was told that the baby had died. Perhaps the child’s heart had started again by the time the second US was performed and a heartbeat found. The hospital denied negligence.

VERDICT A Pennsylvania jury found the ED physician not negligent; the hospital was 100% at fault. A $78.5 million verdict included $1.5 million in emotional distress to the mother, $10 million in pain and suffering for the child, $2million in lost future earnings, and the rest in future medical expenses.

Ligated ureter found after hysterectomy

A 50-YEAR-OLD WOMAN underwent laparoscopically assisted vaginal hysterectomy. She went to the ED with pain 6 days later. Imaging studies indicated a ligated ureter; a nephrostomy tube was placed. She required a nephrostomy bag for 4 months and underwent two repair operations.

PATIENT’S CLAIM The patient’s ureter was ligated and/or constricted during surgery. The gynecologist was negligent in failing to recognize and repair the injury during surgery.

PHYSICIAN’S DEFENSE The ureter was not ligated during surgery; therefore it could not have been discovered. In addition, injury to a ureter is a known risk of the procedure.

VERDICT An Arizona defense verdict was returned.

Myomectomy after cesarean; mother dies

IMMEDIATELY AFTER A WOMAN with preeclampsia had a cesarean delivery, she underwent a myomectomy. The day before discharge, her abdominal incision opened and a clear liquid drained. The day after discharge, she went to the ED with intense abdominal pain. Necrotizing fasciitis was found and debridement surgery performed. She was transferred to another hospital but died of sepsis several days later.

ESTATE’S CLAIM The infection occurred because the myomectomy was performed immediately following cesarean delivery. Prophylactic antibiotics were not prescribed before surgery. The mother was not fully informed as to the risks of concurrent operations. The ObGyns failed to recognize the infection before discharging the patient.

PHYSICIANS’ DEFENSE The patient was fully informed of the risks of surgery; it was reasonable to perform myomectomy immediately following cesarean delivery. There were no signs or symptoms of infection before discharge. Cesarean incisions open about 30% of the time—not a cause for concern. Prophylactic antibiotics for cesarean procedures are not standard of care. The patient’s infection was caused by a rapidly spreading, rare bacterium.

VERDICT A Michigan defense verdict was returned.

TOLAC to cesarean: baby has cerebral palsy

A WOMAN WANTED A TRIAL OF LABOR after a previous cesarean delivery (TOLAC). During labor, fetal distress was noted, and a cesarean delivery was performed. Uterine rupture had occurred. The baby has spastic cerebral palsy with significantly impaired neuromotor and cognitive abilities.

PARENTS’ CLAIM The hospital staff and physicians overlooked earlier fetal distress. A timelier delivery would have prevented the child’s injuries.

DEFENDANTs’ DEFENSE The hospital reached a confidential settlement. The ObGyns claimed fetal tracings were not suggestive of uterine rupture; they met the standard of care.

VERDICT A Texas defense verdict was returned.

Problems escalate after amniocentesis

WHEN GESTATIONAL DIABETES WAS DIAGNOSED at 33 weeks’ gestation, a family practitioner (FP) referred the mother to an ObGyn practice. Two ObGyns performed amniocentesis to check fetal lung maturity. After the procedure, fetal distress was noted, and the ObGyns instructed the FP to induce labor.

The baby suffered brain damage, had seizures, and has cerebral palsy. She was born without kidney function. By age 10, she had 2 kidney transplant operations and functions at a pre-kindergarten level.

PATIENT’S CLAIM The mother was not fully informed of the risks of and alternatives to amniocentesis. Although complications arose before amniocentesis, the test proceeded. The ObGyns were negligent in not performing cesarean delivery when fetal distress was detected.

DEFENDANTS’ DEFENSE The FP and hospital settled prior to trial. The ObGyns claimed that their care was an appropriate alternative to the actions the patient claimed should have been taken.

VERDICT Costs for the child’s care had reached $1.4 million before trial. A $9 million Virginia verdict was returned that included $7 million for the child and $2 million for the mother, but the settlement was reduced by the state cap.

Did HT cause breast cancer?

A 52-YEAR-OLD WOMAN was prescribed conjugated estrogens/medroxyprogesterone acetate (Prempro, Wyeth, Inc.) for hormone therapy by her gynecologist.

After taking the drug for 5 years, the patient developed invasive breast cancer. She underwent a lumpectomy, chemotherapy, and three reconstructive surgeries.

PATIENT’S CLAIM The manufacturer failed to warn of a woman’s risk of developing breast cancer while taking the product.

DEFENDANT’S DEFENSE Prempro alone does not cause cancer. The drug is just one of many contributing factors that may or may not increase the risk of developing breast cancer.

VERDICT A $3.75 million Connecticut verdict was returned for the patient plus $250,000 to her husband for loss of consortium.

Failure to diagnose preeclampsia—twice

AT 28 WEEKS’ GESTATION, a woman with a history of hypertension went to an ED with headache, nausea, vomiting, cramping, and ringing in her ears. After waiting 4 hours before being seen, her BP was 150/108 mm Hg and normal fetal heart tones were heard. The ED physician diagnosed otitis media and discharged her.

Later that evening, the patient returned to the ED with similar symptoms. A urine specimen showed significant proteinuria and the fetal heart rate was 158 bpm. A second ED physician diagnosed a urinary tract infection, prescribed antibiotics and pain medication, and sent her home.

A few hours later, she returned to the ED by ambulance suffering from eclamptic seizures. Her BP was 174/121 mm Hg, and no fetal heart tones were heard. She delivered a stillborn child by cesarean delivery.

PATIENT’S CLAIM The ED physicians were negligent in failing to diagnose preeclampsia at the first two visits.

PHYSICIANS’ DEFENSE The first ED physician settled for $45,000 while serving a prison sentence after conviction on two sex-abuse felonies related to his treatment of female patients at the same ED. The second ED physician denied negligence.

VERDICT A $50,000 Alabama verdict was returned for compensatory damages for the mother and $600,000 punitive damages for the stillborn child.

Inflated Foley catheter injures mother

DURING A LONG AND DIFFICULT LABOR, an ObGyn used forceps to complete delivery of a 31-year-old woman’s first child. The baby was healthy, but the mother has suffered urinary incontinence since delivery. Despite several repair operations, the condition remains.

PATIENT’S CLAIM The ObGyn was negligent in failing to remove a fully inflated Foley catheter before beginning delivery, leading to a urethral sphincter injury.

PHYSICIAN’S DEFENSE The decision regarding removal of the catheter was a matter of hospital policy. The ObGyn blamed improper catheter placement on the nurses.

VERDICT A Kentucky defense verdict was returned.

Discuss this article at www.facebook.com/CurrentPsychiatry

Dear Dr. Mossman:
My patient stopped antipsychotic medication, experienced a recurrence of paranoid schizophrenia, and now is involuntarily hospitalized. During her admission assessment, she said she had a “psychiatric advance directive.” I obtained the document, which says she refuses psychopharmacologic treatment under any circumstances. Without medication, she might take years to recover. How should I proceed?
Submitted by “Dr. Y”

Most psychiatrists who regularly practice hospital-based care know their state’s legal procedures for forcing psychotic, civilly committed patients to take medication to relieve their acute symptoms. In most jurisdictions, courts will order medication over a patient’s objection after finding that the patient lacks competence to refuse antipsychotic therapy and that the proposed treatment is in the patient’s best interest.¹

But if a patient has a psychiatric advance directive (PAD) that opposes psychotropic medication, things may become complicated. To decide what to do if a patient’s PAD precludes administering a treatment you think is necessary, you should understand:

• what PADs do
• what courts have said about PADs
• what your state’s laws say about PADs
• where and when to seek legal advice.

What are advance directives?

An advance directive (or “declaration”) for health care (ADHC) is a legal document executed by a competent individual that states preferences regarding medical treatment should that individual become incapable of making or expressing decisions.^2-4 An ADHC may be a “living will” that lays out instructions for specific health care situations or a “durable power of attorney” (DPOA) that designates a proxy decision maker, or it may include elements of both. In 1990, the U.S. Congress passed the Patient Self-Determination Act,⁵ which required health care institutions that receive Medicare or Medicaid to ask patients whether they have ADHCs and to give patients information about state laws governing ADHCs.

Modeled after medical advance directives, PADs let competent individuals declare their wishes should they need psychiatric treatment during a period of decision-making incapacity.^3,4 At least 25 states have advance directive statutes specific to psychiatry.⁶ Depending on the state, PADs may allow individuals to assert their preferences regarding psychotropic medication, electroconvulsive therapy (ECT), alternatives to hospitalization, location and length of voluntary hospitalization, the treating psychiatrist, seclusion and restraint, emergency medications, and visitors.

Prevalence and praise

The prevalence of PADs is unknown. A 2006 survey of 1,011 psychiatric outpatients in California, Florida, Illinois, Massachusetts, and North Carolina by Swanson et al⁷ found only 4% to 13% of patients previously executed a PAD. However, most participants said that if given the opportunity and assistance, they would create a PAD.⁷

Psychiatric advocacy groups have lauded the development of PADs. For example, the National Alliance on Mental Illness’ position is that “PADs should be considered as a way to empower consumers to take a more active role in their treatment, and as a way to avoid conflicts over treatment and medication issues.”⁸ Proponents suggest that PADs:

• promote autonomy
• foster communication between patients and treatment providers
• increase compliance with medication
• reduce involuntary treatment and judicial involvement.^4,8

Mental Health America launched My Plan, My Life: My Psychiatric Advance Directive in September 2011 to increase public awareness of the availability of PADs.⁹ Therefore, it is safe to assume that most psychiatrists will encounter patients with PADs.

What if a PAD blocks treatment?

What happens when an adult such as Dr. Y’s patient has a PAD that precludes effective treatment? A similar situation led to Hargrave v Vermont.¹⁰

Nancy Hargrave, a Vermont woman with schizophrenia and a history of psychiatric hospitalizations, executed a DPOA—Vermont does not have a separate statute for PADs—in which she explicitly refused “any and all anti-psychotic, neuroleptic, psychotropic, or psychoactive medications,” and ECT.¹⁰

In anticipation of situations like this, Vermont’s legislature passed Act 114, a 1998 state law that required caregivers to abide by the DPOAs of civilly committed individuals and mentally ill prisoners for 45 days.¹⁰ After this time, a court may override the advance directive and allow involuntary medication administration if a patient “ha[d] not experienced a significant clinical improvement in his or her mental state, and remain[ed] incompetent.”¹⁰

In 1999, Hargrave sued the state of Vermont and other parties in federal court, alleging that Act 114 constituted discrimination under Title II of the Americans with Disabilities Act¹¹ because Act 114 excluded her from participating in the “services, programs, or activities of a public entity,” namely, the use of her DPOA under Vermont state law.¹⁰ The federal district court sided with Hargrave, concluding that “Act 114 was facially discriminatory against mentally disabled individuals.” One year later, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s ruling.

Surprisingly, no other court has adjudicated this issue. However, in Second Circuit states—Vermont, New York, and Connecticut—DPOAs of mentally ill patients cannot be abrogated. This is an unsettling notion for many psychiatrists, because, as Paul Appelbaum, MD, explains, “Advance directives may now constitute an ironclad bulwark against future involuntary treatment with medication—except in emergencies—even for incompetent, committed patients and even when the alternative is long-term institutional care.”¹² Other scholars have pointed out that giving physicians an avenue to override or disregard patients’ directives would negate their intended purpose, which is to have one’s competently expressed wishes followed when one’s decision-making capacity is compromised.^6,13

Doctors’ duties

How you should respond to an involuntary patient’s PAD depends on which state you practice in. A physician’s obligation to comply with a patient’s PAD depends on state law, and most states with PAD laws provide some latitude or options if physicians believe they should not comply with a patient’s wishes.^6,13Table 1^14-18 cites examples of statutory language regarding a physician’s duty to comply with a PAD.

A survey of 164 psychiatrists in North Carolina provides some insight into psychiatrists’ perceptions of PADs.¹⁹ After reading a hypothetical scenario about a mentally ill individual whose PAD expressed refusal of hospitalization or treatment with antipsychotics, 47% of the psychiatrists chose to override the PAD. The authors found that “PAD override was more likely among psychiatrists who worked in hospital emergency departments; those who were concerned about patients’ violence risk and lack of insight; and those who were legally defensive.”

In addition to addressing conflicts between patients’ PADs and doctors’ views about proper treatment, some state laws also contain clauses that spell out the limits of physician liability in cases of physician compliance or noncompliance with PADs. Excerpts from 2 such laws appear in Table 2.^16-17

Table 1

Examples of state laws on compliance with psychiatric advance directives

Table 2

Excerpts from state laws on PAD-related liability

Related Resources

• National Resource Center on Psychiatric Advance Directives. www.nrc-pad.org.
• Duke University Program on Psychiatric Advance Directives. http://pad.duhs.duke.edu.
• Hung EK, McNiel DE, Binder RL. Covert medication in psychiatric emergencies: is it ever ethically permissible? J Am Acad Psychiatry Law. 2012;40(2):239-245.

Disclosure

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

Discuss this article at www.facebook.com/CurrentPsychiatry

Dear Dr. Mossman:
My patient stopped antipsychotic medication, experienced a recurrence of paranoid schizophrenia, and now is involuntarily hospitalized. During her admission assessment, she said she had a “psychiatric advance directive.” I obtained the document, which says she refuses psychopharmacologic treatment under any circumstances. Without medication, she might take years to recover. How should I proceed?
Submitted by “Dr. Y”

Most psychiatrists who regularly practice hospital-based care know their state’s legal procedures for forcing psychotic, civilly committed patients to take medication to relieve their acute symptoms. In most jurisdictions, courts will order medication over a patient’s objection after finding that the patient lacks competence to refuse antipsychotic therapy and that the proposed treatment is in the patient’s best interest.¹

But if a patient has a psychiatric advance directive (PAD) that opposes psychotropic medication, things may become complicated. To decide what to do if a patient’s PAD precludes administering a treatment you think is necessary, you should understand:

• what PADs do
• what courts have said about PADs
• what your state’s laws say about PADs
• where and when to seek legal advice.

What are advance directives?

An advance directive (or “declaration”) for health care (ADHC) is a legal document executed by a competent individual that states preferences regarding medical treatment should that individual become incapable of making or expressing decisions.^2-4 An ADHC may be a “living will” that lays out instructions for specific health care situations or a “durable power of attorney” (DPOA) that designates a proxy decision maker, or it may include elements of both. In 1990, the U.S. Congress passed the Patient Self-Determination Act,⁵ which required health care institutions that receive Medicare or Medicaid to ask patients whether they have ADHCs and to give patients information about state laws governing ADHCs.

Modeled after medical advance directives, PADs let competent individuals declare their wishes should they need psychiatric treatment during a period of decision-making incapacity.^3,4 At least 25 states have advance directive statutes specific to psychiatry.⁶ Depending on the state, PADs may allow individuals to assert their preferences regarding psychotropic medication, electroconvulsive therapy (ECT), alternatives to hospitalization, location and length of voluntary hospitalization, the treating psychiatrist, seclusion and restraint, emergency medications, and visitors.

Prevalence and praise

The prevalence of PADs is unknown. A 2006 survey of 1,011 psychiatric outpatients in California, Florida, Illinois, Massachusetts, and North Carolina by Swanson et al⁷ found only 4% to 13% of patients previously executed a PAD. However, most participants said that if given the opportunity and assistance, they would create a PAD.⁷

Psychiatric advocacy groups have lauded the development of PADs. For example, the National Alliance on Mental Illness’ position is that “PADs should be considered as a way to empower consumers to take a more active role in their treatment, and as a way to avoid conflicts over treatment and medication issues.”⁸ Proponents suggest that PADs:

• promote autonomy
• foster communication between patients and treatment providers
• increase compliance with medication
• reduce involuntary treatment and judicial involvement.^4,8

Mental Health America launched My Plan, My Life: My Psychiatric Advance Directive in September 2011 to increase public awareness of the availability of PADs.⁹ Therefore, it is safe to assume that most psychiatrists will encounter patients with PADs.

What if a PAD blocks treatment?

What happens when an adult such as Dr. Y’s patient has a PAD that precludes effective treatment? A similar situation led to Hargrave v Vermont.¹⁰

Nancy Hargrave, a Vermont woman with schizophrenia and a history of psychiatric hospitalizations, executed a DPOA—Vermont does not have a separate statute for PADs—in which she explicitly refused “any and all anti-psychotic, neuroleptic, psychotropic, or psychoactive medications,” and ECT.¹⁰

In anticipation of situations like this, Vermont’s legislature passed Act 114, a 1998 state law that required caregivers to abide by the DPOAs of civilly committed individuals and mentally ill prisoners for 45 days.¹⁰ After this time, a court may override the advance directive and allow involuntary medication administration if a patient “ha[d] not experienced a significant clinical improvement in his or her mental state, and remain[ed] incompetent.”¹⁰

In 1999, Hargrave sued the state of Vermont and other parties in federal court, alleging that Act 114 constituted discrimination under Title II of the Americans with Disabilities Act¹¹ because Act 114 excluded her from participating in the “services, programs, or activities of a public entity,” namely, the use of her DPOA under Vermont state law.¹⁰ The federal district court sided with Hargrave, concluding that “Act 114 was facially discriminatory against mentally disabled individuals.” One year later, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s ruling.

Surprisingly, no other court has adjudicated this issue. However, in Second Circuit states—Vermont, New York, and Connecticut—DPOAs of mentally ill patients cannot be abrogated. This is an unsettling notion for many psychiatrists, because, as Paul Appelbaum, MD, explains, “Advance directives may now constitute an ironclad bulwark against future involuntary treatment with medication—except in emergencies—even for incompetent, committed patients and even when the alternative is long-term institutional care.”¹² Other scholars have pointed out that giving physicians an avenue to override or disregard patients’ directives would negate their intended purpose, which is to have one’s competently expressed wishes followed when one’s decision-making capacity is compromised.^6,13

Doctors’ duties

How you should respond to an involuntary patient’s PAD depends on which state you practice in. A physician’s obligation to comply with a patient’s PAD depends on state law, and most states with PAD laws provide some latitude or options if physicians believe they should not comply with a patient’s wishes.^6,13Table 1^14-18 cites examples of statutory language regarding a physician’s duty to comply with a PAD.

A survey of 164 psychiatrists in North Carolina provides some insight into psychiatrists’ perceptions of PADs.¹⁹ After reading a hypothetical scenario about a mentally ill individual whose PAD expressed refusal of hospitalization or treatment with antipsychotics, 47% of the psychiatrists chose to override the PAD. The authors found that “PAD override was more likely among psychiatrists who worked in hospital emergency departments; those who were concerned about patients’ violence risk and lack of insight; and those who were legally defensive.”

In addition to addressing conflicts between patients’ PADs and doctors’ views about proper treatment, some state laws also contain clauses that spell out the limits of physician liability in cases of physician compliance or noncompliance with PADs. Excerpts from 2 such laws appear in Table 2.^16-17

Table 1

Examples of state laws on compliance with psychiatric advance directives

Table 2

Excerpts from state laws on PAD-related liability

Related Resources

• National Resource Center on Psychiatric Advance Directives. www.nrc-pad.org.
• Duke University Program on Psychiatric Advance Directives. http://pad.duhs.duke.edu.
• Hung EK, McNiel DE, Binder RL. Covert medication in psychiatric emergencies: is it ever ethically permissible? J Am Acad Psychiatry Law. 2012;40(2):239-245.

Disclosure

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

Discuss this article at www.facebook.com/CurrentPsychiatry

Dear Dr. Mossman:
My patient stopped antipsychotic medication, experienced a recurrence of paranoid schizophrenia, and now is involuntarily hospitalized. During her admission assessment, she said she had a “psychiatric advance directive.” I obtained the document, which says she refuses psychopharmacologic treatment under any circumstances. Without medication, she might take years to recover. How should I proceed?
Submitted by “Dr. Y”

Most psychiatrists who regularly practice hospital-based care know their state’s legal procedures for forcing psychotic, civilly committed patients to take medication to relieve their acute symptoms. In most jurisdictions, courts will order medication over a patient’s objection after finding that the patient lacks competence to refuse antipsychotic therapy and that the proposed treatment is in the patient’s best interest.¹

But if a patient has a psychiatric advance directive (PAD) that opposes psychotropic medication, things may become complicated. To decide what to do if a patient’s PAD precludes administering a treatment you think is necessary, you should understand:

• what PADs do
• what courts have said about PADs
• what your state’s laws say about PADs
• where and when to seek legal advice.

What are advance directives?

An advance directive (or “declaration”) for health care (ADHC) is a legal document executed by a competent individual that states preferences regarding medical treatment should that individual become incapable of making or expressing decisions.^2-4 An ADHC may be a “living will” that lays out instructions for specific health care situations or a “durable power of attorney” (DPOA) that designates a proxy decision maker, or it may include elements of both. In 1990, the U.S. Congress passed the Patient Self-Determination Act,⁵ which required health care institutions that receive Medicare or Medicaid to ask patients whether they have ADHCs and to give patients information about state laws governing ADHCs.

Modeled after medical advance directives, PADs let competent individuals declare their wishes should they need psychiatric treatment during a period of decision-making incapacity.^3,4 At least 25 states have advance directive statutes specific to psychiatry.⁶ Depending on the state, PADs may allow individuals to assert their preferences regarding psychotropic medication, electroconvulsive therapy (ECT), alternatives to hospitalization, location and length of voluntary hospitalization, the treating psychiatrist, seclusion and restraint, emergency medications, and visitors.

Prevalence and praise

The prevalence of PADs is unknown. A 2006 survey of 1,011 psychiatric outpatients in California, Florida, Illinois, Massachusetts, and North Carolina by Swanson et al⁷ found only 4% to 13% of patients previously executed a PAD. However, most participants said that if given the opportunity and assistance, they would create a PAD.⁷

Psychiatric advocacy groups have lauded the development of PADs. For example, the National Alliance on Mental Illness’ position is that “PADs should be considered as a way to empower consumers to take a more active role in their treatment, and as a way to avoid conflicts over treatment and medication issues.”⁸ Proponents suggest that PADs:

• promote autonomy
• foster communication between patients and treatment providers
• increase compliance with medication
• reduce involuntary treatment and judicial involvement.^4,8

Mental Health America launched My Plan, My Life: My Psychiatric Advance Directive in September 2011 to increase public awareness of the availability of PADs.⁹ Therefore, it is safe to assume that most psychiatrists will encounter patients with PADs.

What if a PAD blocks treatment?

What happens when an adult such as Dr. Y’s patient has a PAD that precludes effective treatment? A similar situation led to Hargrave v Vermont.¹⁰

Nancy Hargrave, a Vermont woman with schizophrenia and a history of psychiatric hospitalizations, executed a DPOA—Vermont does not have a separate statute for PADs—in which she explicitly refused “any and all anti-psychotic, neuroleptic, psychotropic, or psychoactive medications,” and ECT.¹⁰

In anticipation of situations like this, Vermont’s legislature passed Act 114, a 1998 state law that required caregivers to abide by the DPOAs of civilly committed individuals and mentally ill prisoners for 45 days.¹⁰ After this time, a court may override the advance directive and allow involuntary medication administration if a patient “ha[d] not experienced a significant clinical improvement in his or her mental state, and remain[ed] incompetent.”¹⁰

In 1999, Hargrave sued the state of Vermont and other parties in federal court, alleging that Act 114 constituted discrimination under Title II of the Americans with Disabilities Act¹¹ because Act 114 excluded her from participating in the “services, programs, or activities of a public entity,” namely, the use of her DPOA under Vermont state law.¹⁰ The federal district court sided with Hargrave, concluding that “Act 114 was facially discriminatory against mentally disabled individuals.” One year later, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s ruling.

Surprisingly, no other court has adjudicated this issue. However, in Second Circuit states—Vermont, New York, and Connecticut—DPOAs of mentally ill patients cannot be abrogated. This is an unsettling notion for many psychiatrists, because, as Paul Appelbaum, MD, explains, “Advance directives may now constitute an ironclad bulwark against future involuntary treatment with medication—except in emergencies—even for incompetent, committed patients and even when the alternative is long-term institutional care.”¹² Other scholars have pointed out that giving physicians an avenue to override or disregard patients’ directives would negate their intended purpose, which is to have one’s competently expressed wishes followed when one’s decision-making capacity is compromised.^6,13

Doctors’ duties

How you should respond to an involuntary patient’s PAD depends on which state you practice in. A physician’s obligation to comply with a patient’s PAD depends on state law, and most states with PAD laws provide some latitude or options if physicians believe they should not comply with a patient’s wishes.^6,13Table 1^14-18 cites examples of statutory language regarding a physician’s duty to comply with a PAD.

A survey of 164 psychiatrists in North Carolina provides some insight into psychiatrists’ perceptions of PADs.¹⁹ After reading a hypothetical scenario about a mentally ill individual whose PAD expressed refusal of hospitalization or treatment with antipsychotics, 47% of the psychiatrists chose to override the PAD. The authors found that “PAD override was more likely among psychiatrists who worked in hospital emergency departments; those who were concerned about patients’ violence risk and lack of insight; and those who were legally defensive.”

In addition to addressing conflicts between patients’ PADs and doctors’ views about proper treatment, some state laws also contain clauses that spell out the limits of physician liability in cases of physician compliance or noncompliance with PADs. Excerpts from 2 such laws appear in Table 2.^16-17

Table 1

Examples of state laws on compliance with psychiatric advance directives

Table 2

Excerpts from state laws on PAD-related liability

Related Resources

• National Resource Center on Psychiatric Advance Directives. www.nrc-pad.org.
• Duke University Program on Psychiatric Advance Directives. http://pad.duhs.duke.edu.
• Hung EK, McNiel DE, Binder RL. Covert medication in psychiatric emergencies: is it ever ethically permissible? J Am Acad Psychiatry Law. 2012;40(2):239-245.

Disclosure

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