WhiteCoat

Excuses

ekg-jiggle

I recently got into a rather … shall we say “colorful” … discussion with another doctor about lawsuits. I’m involved in another one. This one is even more screwy than the one I wrote about before. But this lawsuit isn’t finished yet. I expect that it will be over with in the next few months, but I’ll have to wait and see about that.

The discussion centered around medical records, which were one of the issues in my lawsuit.

The other doctor believed that what people write in the chart plays a big part in whether a doctor is successfully sued. In other words, the doctor believed that medical providers largely have the ability to document themselves out of a lawsuit.

I, on the other hand, asserted that charting generally does more harm than good. Sure, a well documented chart may make a doctor look more thorough and conscientious, but in the end if a diagnosis is missed, experts and jurors will work backwards from the diagnosis to determine all of the things that a doctor should have done to arrive at the diagnosis. If it’s a difficult diagnosis, documentation *may* save you. But if it is a disease where a patient manifested a couple of symptoms – even if those symptoms were nonspecific – documentation won’t do much. Electronic charting also provides a LOT more information, so it gives plaintiff attorneys more opportunity to show inconsistencies within a patient’s complaints, review of systems, and physical examination. Create an inconsistency by checking the wrong box or accidentally clicking “yes” instead of “no” and you look like either a careless schlubb who couldn’t be bothered to do an accurate exam or you look like someone who’s documenting an exam you didn’t perform in order to bill more money.

Then I started thinking. You know where that leads.

Suppose that a patient came to the emergency department with chest pain. He has a couple of risk factors for heart disease. His chest pain wasn’t classic cardiac pain, but he had chest pain. His EKG didn’t show any acute changes, but sometimes they don’t when someone has angina. His blood tests were normal, but again, blood tests often are normal when someone has angina. The pain gets better, so the emergency physician sends the patient home with a diagnosis of “chest pain” and instructs the patient to follow up with his doctor. But the patient doesn’t live that long. He dies that night from a heart attack.

Of course there’s going to be a lawsuit because a patient died from a heart attack after going to the emergency department with chest pain. I’m not going to argue whether or not the physician should have been sued. I didn’t give enough information in this example for anyone to make that determination.

My question is this: Given this scenario, is there anything about the chest pain patient’s history or physical exam that the physician could write in the chart to lessen the likelihood that he would be sued? If you were jurors, what types of things would sway your opinion (if anything) and make you decide that the doctor shouldn’t be liable for missing a heart attack in a patient complaining of chest pain? If the medical professionals were acting as expert witnesses, what documentation (if any) would make it more likely for you to conclude that the doctor complied with the standard of care?

I’ll let you know my thoughts once I read some comments.

88 Responses to “Excuses”

  1. R says:

    Cardiology consult called at …

  2. michal says:

    I would document this case just as you documented it in your post. Atypical chest pain in pt with +RF, normal ECG, negative serial troponin, resolution of pain, and that pt agreed to follow up with his PCP (stress test or angiography). There;+s not more you can document. Even patients like these can die of heart attack.
    Good luck with the lawsuit!

    Michal

  3. Too funny says:

    You hit the nail on the head, that is exactly what is going to happen.

  4. Janice says:

    If I were a member of the jury, it would be very important for me to see that the patient mattered to you. Your records would need to show that the standard tests had been done and were negative – or at least inconclusive, as determined by an expert opinion provider. If your charting had shown that you had shared your observations and test results and had given the patient information about chest pain (example angina), it would show me that you had taken his concerns seriously. However, if there was little to no charting, I might assume you were an arrogant, ignorant, A-hole who intimidated the poor dear young father, bread-winner for his family, into thinking that the pain was all in his head, and if he had a mental health history, it might be clear to me that was EXACTLY what you were thinking. You intimidated him, and made him go home to suffer and die. You didn’t protect him, but you are expecting your colleagues to protect you. The experts would need to protect you with FACTS that would prove to me that you did the best you could at the time. Make your charting show that the patient mattered to you, and you will matter to me. I would feel that causing unintentional harm to a patient would cause psychological injury to you, and that would make all the difference to me. Oh – and if there was any indication that you charted AFTER the fact, and that you were trying to protect yourself because you had not protected this young father and his family, I would consider that harm after the harm – intentional harm, and I would hope the judge would give a large sum of money to this family for pain and suffering. While I wouldn’t want you to lose your license, I would want you to learn, and your potential for learning would definitely make a difference.

    • TH says:

      For Janice,

      How can I write into the chart ‘I cared about the patient, his family, his friends, and his job?’ and not sound like a self-serving prig?

      If I document the same way for every single patient, as is my usual and customary practice, then alll the rest of that is something that you as a jury member or plaintiff’s attorney can read into the chart, but it is not actually there.

      We ALL chart after the fact: I frequently don’t get my notes done for a couple hours after my shift is complete.

      And if I modify the chart after an unforseen event, it is timed and dated automatically by the EHR: there is no way to modify that in our system.

      I do understand what you are saying and implying, but despite common thought, no ED provider I know wants any of their patients to die unexpectedly. Cancer? Sometimes it is a grace note, but something entirely preventable like an MI: never.

      • Janice says:

        Consider communication as vital as vital signs, verbally, non-verbally and in writing:

        …Because your job isn’t difficult enough… :)

        Chart his symptoms (so the jury knows you were aware of them and took them seriously)

        Location, intensity, quality, radiating, precipitating factors (that’s all I can think of)

        Chart relevant history

        Chart you discussed risk factors with pt.

        Discussed test results

        Provided information to pt. (a pamphlet is always nice.)

        Appropriate follow-up – plan:

        (Ensure that pt and his wife know you are concerned)

      • Janice says:

        Sorry, I do have a little touch of OCD when I am feeling passionate about something. :)

        http://www.psychologytoday.com/articles/200208/the-power-apology

        Forgive yourself for not being perfect in your charting, and know that you are jut human, just awesome, and God loves you.

    • WhiteCoat says:

      Janice,
      First, thanks for all your input.
      I don’t mean to put you on the spot, but I’m going to echo a couple of TH’s comments.
      What specific words would you want to see written in the chart to reflect some of these things, though?
      You would want to see that “standard” tests had been done. That happens routinely. Would it help to specifically write that “all standard tests have been done” or would it look self-serving. The problem with writing things like this is that if there is a bad outcome, some expert somewhere will testify that all the standard tests WEREN’T done, and if only one other “standard” test had been done, the patient wouldn’t have died.
      If a patient has a mental health history and chest pain, what specific words should a doctor write in a chart to make you think that the doctor took the complaint seriously and wasn’t trying to convince the patient that the symptoms were all in the patient’s head? Should those same words be written in the chart any time that a patient with mental health issues comes to the ED?
      What facts would an expert need to show you that the doctor did the best that he could? Suppose a test might show existence of heart disease but is normal in a significant proportion of patients who have heart disease. If the plaintiff’s expert says that the test should have been done and the defendant’s expert says that it wasn’t a “standard” test done in the emergency department, what specific words could a doctor write in a chart to make you believe his expert more than the patient’s expert?
      And TH is right – charting after a patient has left the department is a common practice. Has been happening since the beginning of medicine charting. Is that something that should be held against a doctor?
      Again, none of these questions are asked in a confrontational manner. I’m really trying to get to the heart of an issue: are there any specific words that a doctor can write in a chart that would make a difference if a diagnosis is missed and a patient suffers a bad outcome?

      • Janice says:

        You’re welcome whitecoat. I would not want to see the words “all the standard tests have been done” – especially if there was any chance they were not done, or done but not reported. I would like the doctor chart what tests were done, and write the results of each of those tests. And, if there were questions later, I would hope the doctor’s lawyer would not “lose” the x-ray, or angiogram, or whatever – so the medical expert opinion providers for the doctor and the plaintiff could review the original test and provide their opinion.
        The specific words I would want to see are that you discussed the test results and provided information to the patient and that there was a follow-up plan – and, as I stated, I think an easily retrievable standard form for angina care in the E.R. might be something to protect both the doctor and the patient. The form could serve just the same purpose as an O.R. check-list – helping to improve care by ensuring nothing is missed in the hectic E.R.
        If the patient had a mental health history, and pertinent information appeared to be missing, the widow could think her husband got substandard care because he was perceived to be simply over-reacting. She could think the appropriate tests were not done, or – that the doctor did them and didn’t even bother to look at the results!
        I would want the expert to show me that he took my husband’s concerns seriously, and I don’t think it should be that difficult to communicate that through the charting.
        I’m not expecting perfection from the doctor, but I am expecting a professional level of care – with honesty and integrity as the cornerstone.
        For example: “Test “D” – not done at this time” – would not have to be in the chart – as I could see from the doctor’s medical expert that it would be inconclusive.
        If there were other indications of caring, that would outweigh the fact this test was not done.
        I would like to see the doctor’s thought process on the chart. That would give me peace of mind that he cared. And, if his thought process wasn’t perfect, the fact that his charting attempted to show his thought process and – along with my recollection of his caring, concerned attitude, I would be satisfied – especially if another medical expert viewed the original tests and the complete charting, and was able to explain and defend his care.
        I would know the doctor did the best he could if other doctors would have interpreted his care as something they would have done.
        Charting after the fact, in a busy E.R., would be the standard of care. But charting for defense against litigation without charting the date, should be considered unprofessional.
        But – here’s a real fantasy, if I were the widow:
        Take the chart, date the chart, and write – “I’m sorry” Here is what I have learned:
        State what you have learned from my husband’s death.
        “I forgive myself because I was (write why you were unable to do what you wished you could have done), and I hope you can forgive me too.”
        “I hope that the settlement helps you to move on, and in knowing that I have learned, and/or the system will improve, you can forgive, and begin to heal.”
        Or – “I’m sorry I was unable to save this patient. I forgive myself because (state exactly how you met the standard of care). Thank you for the opportunity to reflect on my care and to see if there was more I should have done. I am relieved to know that I did everything I could, and your husband’s unfortunate outcome was not related to any negligence on my part. I will now be able to heal. I hope that the investigation helps to bring you some peace as well.
        Something like that, while maybe not good for the chart, would be good for a non-adversarial resolution process.

      • Too funny says:

        I’ve gone thru all the comments here and they’re dead on in terms of charting what was done/thought process, what wasn’t. Doesn’t take a lot to say DD (differential diagnoses): Cold, flu, strep. Plan: Take strep cultures. If negative, tell pt that if see symptoms X, Y, Z come back, else force fluids and stay home for 2 days. Come back after 4 days if not better, head to A&E if syncope occurs.

        That sums it all up and doesn’t take but about a min. I would understand that but didn’t get it from some of my former docs and they didn’t want to give you an explanation. So then when you go to other docs (or are referred), these people have no idea what is going on. Then you have to repeat all symptoms/signs. Its then harder for the next doctor.

        Frankly, a 3 to 5 year lawsuit is tough in about all but the worst cases and yes, I would want to see the above. I’ve seen a hospital make changes in a doctor practice, but not before shutting off all my care because I told them what the systemic and doctor problems were. I also proved it, most all written or not documented. I even said I wasn’t looking for a lawsuit but I was looking for major improvements and one of them wasn’t losing care because a doctor had a bee in his bonnet and didn’t know how to handle complications or work with me logically to fix things.

    • Eric says:

      You’ve got to be kidding me! Just because a doctor thinks that something is clear in a succinct format, doesn’t mean that’s at all appropriate. You’re dealing with people’s lives and health here, you have no right to document anything in the quickest and efficient way possible. You’re being paid to give 100 percent to each patient. If you don’t like the circumstances of what your job entails, find another job.

      The patient’s record should be as detailed as possible. I understand that doctors get busy, but that’s no excuse. If you can’t find the time to make the proper notes, get a tape recorder or hire an assistant and do it when you have the time (and make that recording available in court if necessary).

      I want to know that you ran every test you deemed necessary, the results of those test and why you chose not to run any further tests that are available. I want to know that you consulted other experts before letting that patient walk out the door to his death. I want to know that you released him because you were sure beyond a reasonable doubt that he was going to be fine, not because you didn’t have time to do more tests or write in his record.

      My disabled sister died 2 years ago from medical negligence. I have her medical record; over 700 pages long for a 2-day stay. Most of it is just garbage from the computer program logging stuff. The hand-written doctor notes are a joke. Not only are most of them illegible. what was there was very scant. No doctor ever did a physical of my sister once we reached the hospital and she ended up dying from a strangulated bowel that was never officially diagnosed in the record and because they gave her a mixture of Dilaudid and Gastrografin (for a CT Scan) that she ended up aspirating causing pulmonary edema and sending her into cardiac arrest.

      They also had not written in her record, PLAINLY, that I told them she was NOT a DNR, so when she was in cardiac arrest, they were standing around doing nothing! They eventually called a code blue when they realized they were wrong, and brought her back 17 minutes later, but it was too late, she was nearly brain dead.

      Had they done an examination, they would have noticed that she had severe scoliosis amongst other issues and that both Dilaudid and Gastrografin were contraindicated for her condition.

      The hen-scratching in the report does not show that any doctor showed any amount of care for my sister, and did not take the time to make proper notations. You don’t have to say the words “I care” to show that you do, any more than a person’s actions in a relationship have to show that they love their mate.

      And if any doctor doesn’t know this and practice this kind of care, then they shouldn’t be holding the lives of others in their hands.

      • Janice says:

        I’m very sorry for your loss. I hope you are mistaken about the code blue, but if not, I hope learning was done. While patients cannot expect perfection, we should be able to expect, on a balance of probabilities, that the doctors and nurses cared, and if mistakes were made, that careless errors would not be repeated.

      • Eric says:

        That’s what’s so awful, Janice, I don’t think they learned a thing. The hospital apologizes for my loss, but certainly not for a single thing they did wrong, including signing our admission paperwork for us (we never saw any admission paperwork). Another nurse wrote on a form for a procedure that she called and got my permission when she did not (I have my phone records to prove it). When my sister was lying there in cardiac arrest, when one nurse questioned her laying there in cardiac arrest, the other nurse who had been monitoring her said very flippantly, “Well, she’s a DNR.” They turned to me and asked if that was true and I shouted, “No! She’s not a DNR!” The doctor that prescribed the lethal cocktail of medications (and no physical examination) was very rude and such a know-it-all, and to this day insists that he did nothing wrong. Several of the nurses confided in me that none of them like him and he’s very mean to the nursing staff.

        What I didn’t mention is that our mother also died in this hospital from hospital acquired sepsis in 2003 just three months after actor John Ritter died there. Just recently I met actress Alicia Cole who contracted the flesh eating disease there and nearly died. According to Consumer Reports, they have an overall score of 56/100 (that’s failing in my book) and higher than average national rating for infections.

        This stuff is happening all the time all over the world. In the US, there are upwards of 440,000 deaths from medical error, and that’s just the people that actually die. It doesn’t count the ones who are just left seriously injured for life.

        Then you’ve got all these states with tort reform caps preventing victims of medical negligence and error from securing a lawyer and taking the people that harmed or killed them to court! We’re trying to raise our cap here in California, but the medical and insurance industries are fighting us with lies and close to $60 million. The law was instituted in 1975 by an insurance company who created a medical malpractice insurance scare, simply because they needed extra money to cover their losses in the stock market!

        Now in its wake, hundreds of thousands of victims have not been able to get to court because of it. http://www.packact.org http://www.38istoolate.com/cali-andrist is my sister.

      • Janice says:

        I believe that learning is essential to patient safety. Your sister’s life provided meaning to your life, but now your life needs to find new meaning. In an adversarial system, learning is going to take a back seat to protecting reputations and financial security. Both doctors and patients need to make learning and patient safety the priority. Lawsuits are not the answer. We need alternatives. What do you think of this? https://www.uofmhealth.org/michigan-model-medical-malpractice-and-patient-safety-umhs

      • Matt says:

        Eric,

        In the last month the Florida Supreme Court, which has 4.5 Republican appointees (one was a dual appointee) out of 7, removed Florida’s caps as unconstitutional.

        It also took the step of eviscerating the claims of the insurers in the last “crisis” which prompted the caps.

        http://www.latimes.com/business/hiltzik/la-fi-mh-sanity-on-malpractice-20140319,0,3831097.story#axzz2yalXU68Z

        http://www.floridasupremecourt.org/decisions/2014/sc11-1148.pdf

      • Eric says:

        Janice: We don’t need just one answer to a problem, lawsuits are ONE answer. I believe that holding someone accountable for their actions (or inactions) works. Our legal system works because it holds negligent people accountable and not only makes punishes them for when they do something wrong, it makes them think twice about how they behave in the future.

        Having said that, I’m certain there must be other ways to accomplish patient safety. There was so much going wrong internally at the hospital where my sister died, it’s laughable, and not in a funny way.

        I’m not a fan of the “sorry” system. I believe that if doctors and hospitals know that saying their sorry is protected from being held against them, they’ll just say it to appease people. I think it is a rare moment that a negligent doctor says they are sorry and actually means it and wants to accept responsibility for their actions.

        We teach our children to be honest and admit when they’ve done something wrong, yet negligent doctors (and so many others) hide their mistakes and get away with it.

        Sure, they have a lot to lose by admitting their mistakes, but who wants to go on practicing knowing they’ve harmed someone for life or killed them and got away with it? Is that really a doctor that you want practicing on you in the future?

        I think any doctor where it’s proven that they’ve been negligent and tried to get away with it, should be barred from ever practicing medicine again. They can never be trusted. I’m a notary public. Do you think that if I were caught forging signatures on documents they’d ever let me notarize another document? Yet, they let doctors keep making mistakes over and over and over.

        Matt: Unfortunately the Florida Supreme Court didn’t go far enough, but it’s certainly a step in the right direction. As it stands now, they only removed the cap in death cases. People that are harmed for life still have a cap.

        Michael Hiltzig of the LA Times did another story on California’s cap, and interviewed me: http://www.latimes.com/business/la-fi-hiltzik-20130710,0,1753167.column#axzz2yauGdb6u

      • Hmmmm says:

        This would help, quite frankly, in getting doctors to take responsibility for their actions and give them skin in the game. The fact remains that too many times, doctors don’t learn from their mistakes. I’ve seen several that want to take it out on you when you’ve tried to work with them. I’ve certainly that done with mine who were problems.

        Now I have no compunction about saying here are the facts, here is how this doctor acted. There needs to be a board on the internet where people can start putting out their information like this so docs shape up because of public opinion. Its not going to happen thru medical boards or lawyers that don’t want to take cases because the money isn’t there.

      • WhiteCoat says:

        I appreciate your commentary, but you’re views are plainly skewed by the unfortunate loss of your sister.

        We “have no right to document anything in the quickest and efficient way possible”?
        Who gave you keys to the kingdom to dictate how every medical professional in the country completes their medical documentation? It’s getting off topic, but your suggestion that we should be “slow and inefficient” is unsubstantiated, counterintuitive, and simply inane.

        “I want to know that you ran every test you deemed necessary, the results of those test and why you chose not to run any further tests that are available.”
        This is also inane. So you’d be happy if a doctor slowly and inefficiently wrote in a chart “I ran every test I deemed necessary”? And let’s see, to write out the reason why I didn’t order every other test available would take me about a week to accomplish. But in a roomfull of emergency patients, one patient a week (or about 50 patients a year) is a reasonable clip for an emergency department that sees 45,000 patients per year. Your wait time won’t be less than 30 minutes, it will be less than 30 days. Oops. I’ll be negligent for that, too.
        How ridiculous would it be for me to write out why I didn’t order a colonoscopy, toenail scrapings, and prostate biopsies on a patient complaining of a headache? Yet that’s what you seem to demand in your response.

        “I want to know that you consulted other experts before letting that patient walk out the door to his death.”
        Ahhhh. So now we’re suddenly negligent if we’re not clairvoyant and soothsayers. We only have to consult experts (because after 15 years of education, we’re still knuckle-dragging simians) if someone is going to walk out the door to his death. If they don’t walk out the door to their death, then we’re greedy idiots for calling the experts and running up the patient’s bill. Got it.

        “you were sure beyond a reasonable doubt that he was going to be fine, not because you didn’t have time to do more tests or write in his record”
        So now doctors must meet standards for criminals. Beyond a reasonable doubt means that any patient gets admitted for any complaint and has a whole body scan so that we can be “sure beyond a reasonable doubt” that he’ll be fine. Yeah, your bill will be about $200,000 for the visit, but don’t worry, the hospital has a payment plan.

        The ironic thing is that your sister died from the same testing you demand for every person who walks into the emergency department. That should show you that doing a million dollars worth of testing may subject patients to unintended adverse side effects from the testing itself. Testing is not harmless.

        If you applied these same standards you’d like to apply to medical professionals to your own business or even to your driving back and forth to the store, then put yourself at risk for losing millions of dollars, you’d hopefully realize that a “slow, inefficient” and “beyond a reasonable doubt” standard is really quite an unreasonable standard to expect of anyone.

        It scares me that someone with these ideals and an obvious underlying animus for medical professionals might sit on a jury some day.

      • Hmmmm says:

        Why? They’re right on the money. Quite honestly, a lot of these things can be done in short order. I’ve seen it, but being dismissed as not in the medical frat, that’s what happens.

  5. mbr says:

    As a jury member, I’d examine it this way:

    Doctors, like everyone else, are human. While I believe that the overwhelming majority of doctors are caring, thorough, and do everything they can to figure out what is wrong with an individual, many times “shit just happens”. If a doctor did all the possible tests, documented the tests and the results, and the patient still had a heart attack and died after discharge, I’m not going to hold the doctor liable for not being a mind-reader or for lacking the ability to foretell the future.

    Yes, there are often clear cut indicators that a patient’s health is going down. In my line of work, we’ve had many people qualify for hospice who should have died within days or weeks but somehow managed to hang on for 2+ years. How does that happen? All the objective signs of imminent death are there but yet somehow they continue to thrive (albeit with a decreased quality of life). Should the patient or their families sue the hospital for improperly offering hospice (expensive) care that they now need to pay for when they were originally told death was near? Should the family sue for the pain and suffering they endure for having to watch their loved one as they cling to life with decreased quality?

    Sometimes, despite our best and most vigilant work, people still manage to die. From my perspective if all signs indicated that the practitioner did a thorough history and physical exam, ran all the appropriate tests, interpreted the tests and and made conclusions about interventions, treatments, and discharge plans based upon the data they were given…then I would not find the physician liable.

    Following the route you describe means that ANYONE who goes to the ER for treatment, receives proper observation and analysis, but still dies afterward would be eligible for compensation of some sort. Ridiculous.

    • WhiteCoat says:

      “If a doctor did all the possible tests…” and “the practitioner … ran all the appropriate tests …”
      This is an important point. Doctors NEVER do all the *possible* tests. Otherwise, every patient with any hint of chest pain would always require CT scans, cardiology referrals, angiograms, stress tests, and hospital admissions costing hundreds of thousands of dollars.
      Similarly, “appropriate” tests are really a moving target. An angiogram may be appropriate for a 50 year old smoker with diabetes and chest pain, but is inappropriate for a 15 year old who has chest pain after getting hit in football practice. Is the angiogram “appropriate” for a young patient with a couple of cardiac risk factors and normal ED workup? That ends up being a judgment call. If a patient has a bad outcome, the physician’s judgment will always be questioned and if there is a lawsuit, there will always be some expert who testifies that the physician’s judgment was flat out wrong.
      So what specific words, if any, can a physician write in a chart that would lead you to reject what the plaintiff expert is saying and to believe that the physician’s medical judgment was appropriate?

      • markps2 says:

        How many jurors are in the jury? Is a jury or just a judge?
        I would think common sense would rule, as in “was a (single) reasonable test(s) performed”? If I was a juror, only gross incompetence, as in the example of mixing up the left and right sides of the patient would motivate me to find for the complainant/plaintiff.

      • Matt says:

        If you can’t follow the law and award damages even when someone is simply negligent, you won’t make the jury.

        Saying you won’t award for simple negligence is like saying that if you get hit by a car today which ran a stop sign, the other driver shouldn’t be held liable if they just didn’t see the sign, but only if they were drunk when they ran it.

      • Matt says:

        “So what specific words, if any, can a physician write in a chart that would lead you to reject what the plaintiff expert is saying and to believe that the physician’s medical judgment was appropriate?”

        This continues to be the most intentionally ignorant question on this site.

      • Hmmmm says:

        I would have:
        my reasons for checking X are: type in box
        differential dx’es:
        if no differential dx’es: why not, where is the patient being sent?
        What is the justification for this treatment.
        What medical research backs up this conclusion?

        It would cover a few simple words on why they ruled out other things. This would have been helpful in my case. As it is, I just let others know, here is what this doc didn’t do, how he didn’t collaborate, how the records are confusing, etc. It would also show that these doctors refused or couldn’t read medical research.

  6. JH says:

    My presumption would be that this is an “all or nothing” .. There would be *something* or *nothing* indicative of impending MI. Outside of the usual standards of care, the info that would be significant to me would be pt. hx. of previous MI. Exam wise: did the doc ask the pt. what, if anything, makes this pain different from past episodes.
    I would also look for the *physician’s rationale*. Did he document his rationale for his decision. What information lead him to decide D/C rather than admit for obs/telemetry.
    I agree with your original assertion regarding documentation. If you make a mistake, or are negligent, your documentation will not outweigh it, no matter how stellar, no matter how unfortunate. It can only be a further detriment in that case.

  7. Janice says:

    The standard of care is not “perfection”. It’s just “awesome”. Showing you care is awesome, and I think if doctors could manage to do that, before, or even after the fact – if learning and healing could be their priority, then that would be awesome. When the E.R. doctor is caring for the patient, or doing her charting, or reflecting for learning, her attention should be focused on wanting to protect the patient, not so much on just covering her assets. :)

    • WhiteCoat says:

      It would be great if everyone could be “awesome” at whatever they do, but that isn’t the legal standard any more than the law requires you to be “awesome” at your job, “awesome” at being a parent, or “awesome” at driving (and imposes millions of dollars of liability on you if you aren’t “awesome” at those things).

      I could literally give you dozens of examples where doctors were trying to protect their patients yet were sued or had actions taken against them by medical boards.

      What specific words could a doctor write in a patient’s chart to reflect their awesomeness without looking trite?

      • WRT specifics that would sway me as a juror, assuming a case of chest pain-treatment-discharge-heart attack, I’d want to know if there were additional tests/procedures/whatever that could have been done that might have caught the condition.

        Assuming that there were, and they weren’t performed, I’d want to know why, and critically, I’d want to know that it was the patient’s decision not to proceed. Of course, I’d hope a case like that wouldn’t make it to the jury, but IANAL.

        Regarding ‘awesome’ I think you’re mistaken. I have every right to expect awesome performance from my doctor(s).

        Last I looked, even the guys who work primary care — who get totally, wrongly, and stupidly screwed over — make on average close to $200,000/year.

        Specialists make considerably more. In some specialties averages are $300,000-$400,000/year, and that means many docs are making more than that. I’d be surprised if the specialist at the big name med center who treated my wife a couple of years ago weren’t making a half million or more annually.

        That’s rockstar money, and for that kind of money I expect rockstar performance. I’ll accept competence from the phlebotamy tech. I won’t get bent out of shape if the LPN has a bad day.

        From the doctor I’m well within my rights to expect not just competence, but exceptional performance — because I’m paying you six times more than I make.

        /rant

  8. JustADoc says:

    As you are aware, standard of care has no meaning until you it is determined in the courtroom. So it is actually impossible to follow in advance.

    Documentation just gets nit-picked for meaningless inconsistencies and typos.

    In my case, a huge deal was made of an EKG done with lead reversal. Noted and repeated within minutes. I never even knew about it as it was done in ER under ER doc’s name and I was the admitting intern(that’s right-intern). No harm resulted. Spent 15 minutes going over it in deposition.

    My documentation was textbook and detailed(once again I was an intern, you never write better notes than then). They nitpicked every word and nuance.

    • Matt says:

      This is incorrect re: standard of care. Any attorney who does med mal work will tell you that they spend a little money up front to determine if the standard of care has been violated before they even start to dive into the case and spend real money. And for those who practice exclusively in the area, they typically know the standard of care for many issues and pass on cases all the time because they know automatically that they can’t prove the standard of care was breached.

      • JustADoc says:

        My experience strongly disagrees

      • Matt says:

        Your one experience isn’t really an analysis of the facts, is it? It’s reminiscent of the person who got a cold in the hospital while getting a broken leg treated and now won’t go back because they got sick there.

    • WhiteCoat says:

      I agree that the standard of care is determined in a courtroom. I’m just trying to figure out what, if anything could be written in a chart to better reflect that the standard of care has been followed.
      There may be nothing, but that’s what I’m trying to find out.

      • Matt says:

        It’s really not. No attorney wants to spend that much hoping to set the standard of care later. Not to say you guys don’t disagree amongst yourself on it even outside the litigation setting, but an attorney prefers the standard be more bright. Attorneys look at and pass on hundreds of cases a year because the standard was met.

      • WhiteCoat says:

        Baloney.
        Attorneys pass on hundreds of cases per year because the damages won’t provide the attorneys with a large enough payout. If an attorney can get an expert to testify favorably about a high-damage case, they’ll take it.

      • Matt says:

        You sit in a lot of attorney’s offices and analyze their cases do you? Make a lot of high dollar bets on those?

        Tell me, have you ever been a plaintiff in ANY kind of insurance claim? Even one that cost you nothing to pursue? Involved in a fender bender with some bodily injury or helped a family member who had?

        These beliefs you have about dealing with insurers are comical, especially for a physician. And your understanding about the risks and costs in pursuing a lawsuit, especially a medical malpractice one, border on the absurd.

      • WhiteCoat says:

        Back to your innuendo. Did you know that you’ve been immortalized under the term “Mattuendo” in Google searches?

        Do I sit in attorneys offices and analyze cases? Sometimes. But again, the answer to that question is irrelevant. You use the question to imply that you have more experience than I do in dealing with medical malpractice cases. Simply put, you don’t.

        Then you continue your diatribe against insurance companies. You come to the conclusion that I have “absurd” understanding about the economics of lawsuits, without any basis other than my assertion of the fact — and it is a fact — that attorneys won’t pursue entirely legitimate claims if they are low-value.
        We get it. Insurance companies are not nice people. They didn’t make the Forbes 500 by paying out the maximum value on every claim. But the sinister nature of insurance companies has nothing to do with this topic. Focus, counselor.

        As an aside, just last year I dealt with an insurance company who wanted money in a subrogation claim against our family. The representative repeatedly lied about several aspects of the claim. I reported the agent and the insurance company to the state department of insurance and to the attorney general for consumer fraud. Very soon afterwards, the demand letters stopped. Wasn’t too hard at all. Even after their letters stopped I kept writing letters to the representative and her supervisor, demanding that they send me documentation of their claims and cc’d the DOI and AG on every letter. Actually became rather amusing. But that was just my experience. Maybe I’ll post about it some time.

      • Janice says:

        Mattuendo – Attorneys do not care about patients health and well-being; they do not care about the standard of care; they don’t care about justice; they care about money. Whitecoat – if doctors truly care about the standard of care – why don’t they encourage a non-adversarial process which would permit and promote learning and healing?

      • Matt says:

        “Do I sit in attorneys offices and analyze cases? Sometimes. But again, the answer to that question is irrelevant. You use the question to imply that you have more experience than I do in dealing with medical malpractice cases. Simply put, you don’t.”

        In terms of treating the victims, you’re undoubtedly right. In terms of litigation, how would you know? We’re anonymously commenting on the Internet. You could claim to be the king of Siam.

        “Then you continue your diatribe against insurance companies.”

        Diatribe? I don’t think you know what that word means. Insurers are simply companies looking to pay the least for the risks they insure. That’s ok, I have no problem with that. I just don’t pretend otherwise like you do. Which is odd given how often doctors sue insurers and the billions they collect.

        It’s funny to hear someone say that insurers have nothing to do with malpractice discussions. I would enjoy visiting the world you live in. They came up in the context of Janice’s “can’t doctors and patients sit down and work it out” question. Leaving insurers out of that discussion is humorous, but if you want to try go ahead.

        As for writing the Attorney General and DOI, that probably didn’t have much effect in reality, but if it made you happy, I’m glad.

      • Matt says:

        “Mattuendo – Attorneys do not care about patients health and well-being; they do not care about the standard of care; they don’t care about justice; they care about money.”

        Janice,

        If you’re injured by malpractice, what will you use to pay the resulting medical bills? If you can’t work, what will you use to pay your mortgage? Buy your food? Pay your kids’ college tuition? Will you just explain to the sellers of those items that you have a deep well of good feelings to share with them and they should really enjoy the value of those?

        Maybe you find the process of letting 12 disinterested people determine the value of the case after all the evidence is put on by both sides isn’t “justice”, and that’s certainly an opinion. I’m not sure what system you’d prefer, other than this mysterious “non-adversarial” system between an injured patient and a doctor with no authority or willingness to pay for those injuries.

      • Janice says:

        Matt – In Canada, doctors are blessed to have the CMPA, and because of that most cases do not make it to court. But, it disturbs me that lawyers determine the standard of care in Canada, and that standard can be disturbing. A non-adversarial option is the healthier option.

  9. Janice says:

    Recently, I was at a patient safety meeting, and the young E.R. doctor said that the stress of lawsuits was “10 times worse than the stress of the E.R.”! If I go to the E.R., I don’t want the doctor to be stressed about the possibility I am going to sue her. She is capable of doing her job; she’s passed her tests, and she’s gaining experience and learning every day. I just want her to be able to do her job, and to go home happy, feeling she’s done her best each day. Lawsuits are unhealthy for both doctors and patients, and I wish they could be abolished. Communication is healthy. Patients want and need a non-adversarial process to ensure that the doctor’s “mistake” (and there may or may not have been a mistake), is, if possible, not repeated. We need to see that there has been learning from the loss of our loved one, or the loss of whatever we have lost. It’s necessary for our healing. We need doctors to understand that. What do patients need to understand?

    • Matt says:

      Janice, the mistake you are making in your thinking is that the adversarial process involves a doctor and a patient. It doesn’t. It primarily involves the doctor’s INSURER and the patient. Because it’s the insurer’s money being used to fix the problem. The physician isn’t writing the check.

      • JustADoc says:

        I would strongly wager, being a doctor and having spoken with many about their experience, that the doctor involved very much feels that it is a process that involves them. In fact, they feel like it is attacking their very core being.
        It has little to nothing to do with ‘writing the check’

      • Joe says:

        Agreed. Matt you have no experience as a doc being sued so how do you have any clue what you are talking about?

      • Janice says:

        The adversarial process begins when the doctor gets a lawyer to defend his care. A learning and healing process could begin if doctors, as a group, (they can’t do it alone), made learning and healing their priority. Another route – where the doctor could ask the lawyer if the patient is willing to settle for a non-adversarial approach – with the mutual goals of learning and healing – would be professional and humane. In my opinion, there can be no learning when lawyers make defending the doctor’s ego more important than healing. Litigation is not about learning and healing; it’s not about the truth. It’s just about winning.

      • JustADoc says:

        So your suggestion is that when I get a letter from the plaintiff lawyer(ie the real first step) that I should just admit I did something wrong and get my insurance to write a check and go learn something.
        Your method seems to assume that I did something wrong. I didn’t

      • Janice says:

        Doc – In Canada, when you get a letter from the plaintiff’s lawyer, (or the College), the first step, I believe, is to contact the Canadian Medical Protective Association. You may have done absolutely nothing wrong. You may feel angry and defensive, and you let the lawyer take over. (And lawyers care only about money, not health.) What if, instead of the litigation process, there was another process where the doctor’s lawyer and the plaintiff’s lawyer could ask the plaintiff/complainant if she would rather take a non-adversarial path to finding out if her husband’s death could have been prevented? (The widow would be in the grief process, and may want her husband’s death to have meaning. Her goals may be met if there could be learning from his death. She may not want money. Money, to her, may be “guilt money” – ie – she may feel she should not told Arthur just to go back to bed when he woke up saying the chest pain was really bothering him. She may feel she should have done something more, and would have done something and could have done something different, if only…) The process could be explained to her by her lawyer – that she would receive no money, but the mutual goal would be for learning and healing, rather than winning. Her lawyer could explain that often, in the litigation process, it is a game, (not about the truth, but who can tell the better story), and there is only one winner, and the odds of her winning, are not in her favour. With the non-adversarial process, the charts and the tests could be given to a panel of three independent medical experts – all experts get all the information, with nothing missing, (no game playing – just fact finding). Additional information, such as the environment at the time and the system would also be considered. The expert’s reports would be given to both the doctor and the plaintiff’s lawyer and in this manner, learning could be accomplished. An apology, by either the doctor or the patient, or both, could be encouraged, and healing could be begin. The grieving widow could move on. The doctor could attend to his patients fearlessly, without the stress of another possible lawsuit. Excessive stress affects the ability to think clearly, and can, if not managed, lead to depression. A non-adversarial approach could prevent unnecessary stress. In Canada, the College could be non-adversarial, but from what I have seen, it is completely ineffective, and causes unnecessary harm to both the doctor and the complainant through their highly inadequate investigation process.

      • Matt says:

        True, I have no experience as a doc being sued. I do have experience being sued, though. I also know that almost never does any money come out of a doctor’s pocket, so the doctor has limited financial exposure. Not to say it isn’t stressful, but it pales in comparison to the pain and stress of the person injured who is now battling your insurer.

        Because you don’t have any meaningful financial loss you can nobly say “it has little to nothing to do with ‘writing the check'” But the guy who now can’t work and has the bills piling up knows it has everything to do with the finances. He can’t pay your brethren to fix the mistake. He can’t keep his house, feed his family, etc. So it’s all well and good for you to talk about how finances don’t matter, but then you’re still getting paid because you can still work.

        You guys battle health insurers for compensation right? Frustrating isn’t it? Now imagine how much more frustrating it is for the injured patient dealing with your insurer, even in cases we can agree are legit. Insurers don’t write multi-million dollar checks, even in the most legit cases, right away.

        Janice’s world imagines that medical bills are minimal and no insurers exist. Thus the patient and doctor can simply work it out between them. That world isn’t US medicine.

      • WhiteCoat says:

        “the adversarial process involves a doctor and a patient. It doesn’t. It primarily involves the doctor’s INSURER and the patient”

        Untrue. If that were the case, then the insurer would be named in the lawsuit, wouldn’t it? What difference does it make who “writes the check”? That’s just a red herring and you know it. How would it make any difference in your line of reasoning if a doctor had no insurance?

        What basis to you have for saying that doctors have limited financial exposure to lawsuits? I’m betting that you can’t come up with one source anywhere for your statement.

        Even if there were limited financial exposure, a doctor’s financial risk isn’t the only downside from med mal claims. Rising malpractice premiums (some places/specialties more than $200,000 per year), the possibility of not getting licensing or hospital credentialing, time away from caring for other patients to deal with the legal proceedings, stigma, mental stress, in addition to financial liability all factor into the process. Your narrow view doesn’t reflect all of the issues. And I can pretty much guarantee that whatever lawsuit you were involved in did not involve a demand for > $1 million as is commonplace with medical malpractice suits.

        And your repeated assertions that physicians should somehow be responsible for the bills of every patient who has sought medical care in the past really distorts the realities of medical care and the legal process. It would be like me saying that lawyers should be responsible for the bills of every patient whose case they lose.

      • JustADoc says:

        Matt’s default position in every comment he’s ever made on the general topic of medial malpractice lawsuits is that the doctor is guilty and should just settle/pay up.
        He never seems to allow for the possibility that stuff happens/people die and it isn’t the doctor’s fault.
        I am completely jaded by my experience thru the med mal system. The truth was completely irrelevant to everyone but me it seemed. Their expert flat out lied and there is no way he didn’t know it.
        At deposition their lawyer asked essentially the same question a dozen times trying to get me to trip up and say something slightly different. Because of course saying something slightly different one time out of twelve clearly shows I am covering up something that happened 3 years prior. Word games. Not any interest in truth. And justice should require truth. It clearly doesn’t.

      • Matt says:

        What basis do I have for saying doctors have limited financial exposure? Point me to ten cases where a doctors personal assets are hit. The only time this happens is if they are operating drunk or fondling their patients. Gross negligence or intentional acts not covered by insurance. Ordinary negligence virtually never results in their personal assets being reached.

        I would buy into all those other possibilities you list if there weren’t so many physicians with multiple payouts still practicing. In almost every state it’s a small number of ohysicians who have multiple payouts and account for most claims.

        I didn’t say you should be responsible for all bills. I’m just saying its pointless to have you sit down with the patient because you’re not actually financially responsible for the damage your negligence causes. You are the defendant, correct, but 99.9% of the time it’s the insurer writing the check. This is not new info.

      • Matt says:

        JustADoc, you misstate my position. I don’t think you should pay if you don’t want. I think you should try your case. I would hope you would pay if you new you’d injured someone but I know it’s not really up to you.

        My only default position is that the jury should hear it. You say their expert lied, he says you lied. It happens. Both sides in most cases believe fervently they’re absolutely right, whether it’s med mal or a real estate dispute. You’re at trial because you have a fundamental disagreement on the facts.

        But I don’t think you should automatically pay because you were sued.

      • WhiteCoat says:

        Here’s one example off the top of my head. Lenard Rutkowski.
        http://www.washingtontimes.com/news/2004/jul/13/20040713-080936-3867r/
        I could research others, but what difference does it make? And what difference does it make if a physician has multiple payouts? If an insurer wants to settle a case for financial reasons, often the physician has no say in the matter. You seem to equate payouts with the quality of the physician. Show me where that correlation has ever been established. And you still have no support for your assertion that physicians have limited financial exposure in lawsuits, either.

      • Matt says:

        WC, you claim there is a rash of med mal cases around the country, and you find one doctor, whose insurer refused to settle the claim though he wanted to, who got his personal assets hit? Really, he had a bad faith claim at that point.

        “You seem to equate payouts with the quality of the physician. Show me where that correlation has ever been established. And you still have no support for your assertion that physicians have limited financial exposure in lawsuits, either.”

        I have stated multiple times negligence is simply that – an accident. It happens – we all miss the stop sign at some point in our lives. Doesn’t relieve one of responsibility for the harm they cause, but it doesn’t make them an evil person either.

        If you don’t think multiple payouts is a problem, given that most malpractice never sees a claim file, would you send your child to a physician with multiple payouts for malpractice claims? If not, why not?

        I didn’t say physicians have limited exposure, I said the chance of them making a payout out of their pockets was very very low. Which of course is true. Do you disagree with that?

        In the case of the gentleman you mention, he requested his insurer make a policy limits offer as the plaintiff had stated they would accept that offer. The insurer refused. (which is strange, because you seem to believe that insurers roll over regularly). Now, granted Dr. Rutkowski doesn’t believe there should have been a verdict against him, which is typical, but still the reason his personal assets were reached because his insurer refused to follow his advice. There’s no word on whether he pursued a bad faith claim, but I would expect he did. So I don’t know that he’s the best person to make your case, given that his assets were only reached because his insurer didn’t properly evaluate their exposure.

      • Matt says:

        When it comes to the risks of bankruptcy for a physician, there are far more common causes:

        http://money.cnn.com/2013/04/08/smallbusiness/doctors-bankruptcy/

        Although if you’re looking for a guy who does file bankruptcy due to malpractice concerns, there’s this one:

        http://www.insurancejournal.com/news/southeast/2007/12/10/85509.htm

        Here’s more from that hotbed of trial lawyer liberalism, the WSJ: http://www.spartacus.blogs.com/spartacus/2005/09/Doctors_tale.html

        I bet he can squeeze you and your loved ones in for an appointment, WC.

  10. girlvet says:

    Its either charting your butt off, especially discharge instructions and patients agreement that they understood them and agreement with them.

    Alternative: admit them

    • Janice says:

      Alterative for Canada:

      Lawyers spend their time with proactive protection for both doctors and patients:

      For Example:

      Discharge information and instructions for Angina – 2 copies – 1 for the patient and one for the chart.

      Patient signs both copies to avoid confusion.

      If patient cannot read or consent, then family or substitute decision maker to sign.

  11. ThorMD says:

    Hard to defend when anyone dies hours after leaving the ER. Even if no malpractice was committed. Not impossible though. Depends on what was written in the chart. I would let the doc off the hook if there was something like “I discussed with the patient and his wife that after two sets of normal EKG’s and trops, that the risk of dying from an acute MI was 1 in xxxxx. He accepted this risk and intended to follow up with his doctor. In my clinical judgment he had the capacity to understand and accept those risks. His wife was in agreement. The patient also agreed to take a daily ASA and refrain from physical exertion until he saw his doctor”.

    Of course, does anyone document that for every CP they send home??? And I’m sure if no autopsy was done, the lawyers would try to argue that he died from a dissection or PE.

    • Janice says:

      Instead of playing the litigation game, a learning and healing approach could enable doctors and patients to determine what is really needed for patient safety.

      • JustADoc says:

        What is the learning point here?
        Admit everyone between the ages of 20 and 120 who had chest pain?
        Then what?
        Do a stress test on them all?
        Are you aware that nuclear stress tests have a sensitivity of less than 100 percent?
        So maybe we should just Cath everyone?
        Do you know that caths have a complication rate greater than 0?
        You do? Good, retract your statement.
        You don’t. Then don’t lectures those who do and actually use that knowledge with actual patients every day.

      • Janice says:

        Doc – the learning point is that in the story I’ve made up in my head and shared here, there is a grieving widow. In Canada, she could grieve for 10 years before the case gets to court, if it ever did. Meanwhile, the E.R. doctor would have the process on his plate for 10 years as well, and in that time, there may be additional processes. He may be an awesome doctor and without him, and his ability to be fully present with his knowledge and experience, lives would be lost, or forever altered. The doctor and the widow deserve a better option. In my opinion, there is a healthier way, and doctors, as very highly valued members of our healthcare system need to consider it, and permit and promote it.

      • JustADoc says:

        That was a fairly long reply that said nothing. What is this magical ‘option’?

      • JustADoc says:

        Never mind.saw replay above. That option would be nice but since there is no money in it for the lawyer it will never happen.

      • Janice says:

        Doc – The magical option is a process which promotes healthy communication and works to prevent unnecessary harm. It’s my fantasy:

        Doc – In Canada, when you get a letter from the plaintiff’s lawyer, (or the College), the first step, I believe, is to contact the Canadian Medical Protective Association. You may have done absolutely nothing wrong. You may feel angry and defensive, and you let the lawyer take over. (And lawyers care only about money, not health.) What if, instead of the litigation process, there was another process where the doctor’s lawyer and the plaintiff’s lawyer could ask the plaintiff/complainant if she would rather take a non-adversarial path to finding out if her husband’s death could have been prevented? (The widow would be in the grief process, and may want her husband’s death to have meaning. Her goals may be met if there could be learning from his death. She may not want money. Money, to her, may be “guilt money” – ie – she may feel she should not told Arthur just to go back to bed when he woke up saying the chest pain was really bothering him. She may feel she should have done something more, and would have done something and could have done something different, if only…) The process could be explained to her by her lawyer – that she would receive no money, but the mutual goal would be for learning and healing, rather than winning. Her lawyer could explain that often, in the litigation process, it is a game, (not about the truth, but who can tell the better story), and there is only one winner, and the odds of her winning, are not in her favour. With the non-adversarial process, the charts and the tests could be given to a panel of three independent medical experts – all experts get all the information, with nothing missing, (no game playing – just fact finding). Additional information, such as the environment at the time and the system would also be considered. The expert’s reports would be given to both the doctor and the plaintiff’s lawyer and in this manner, learning could be accomplished. An apology, by either the doctor or the patient, or both, could be encouraged, and healing could be begin. The grieving widow could move on. The doctor could attend to his patients fearlessly, without the stress of another possible lawsuit. Excessive stress affects the ability to think clearly, and can, if not managed, lead to depression. A non-adversarial approach could prevent unnecessary stress. In Canada, the College could be non-adversarial, but from what I have seen, it is completely ineffective, and causes unnecessary harm to both the doctor and the complainant through their highly inadequate investigation process.

      • Janice says:

        Sorry for repeating myself there. How embarrassing! :(

        Are most doctors really content with permitting lawyers’ quest for their greater financial reward outweigh the greater good – our health and well-being?

      • Matt says:

        Janice,

        That’s a sweet sentiment. But then medical bills must be paid. We can learn and enable all we want, but if you’re the breadwinner of a family who can now no longer work, and are facing mountains of medical bills, who exactly is going to pay them? References to Canada aren’t particularly useful, as Canada has single payer universal care and a much deeper social safety net.

        No patient wants to go to a lawyer, but guess what, the doctor isn’t writing the check. His/her insurer is, and they have plenty of money and plenty of time to wait you out and battle you to the end. The guy who has a mortgage, kids in college, etc. and is living in pain really doesn’t have those resources on his own to simply wait and hope that insurer will do the right thing.

      • Janice says:

        But Matt – don’t plaintiff’s in the U.S. sometimes get ridiculous amounts of money? I met a young couple in the pool on my last cruise. (they looked to be in their 40’s). As they spoke of all their fabulous vacations, I thought they must have won a lottery. The reality, I learned, was that they had won the negative lottery – their son had died, and they had accepted a settlement. The mother called it “guilt money”. No amount of money she could get could buy her what she really wanted and needed. She needs healing. She needs learning, so she can forgive – not only the doctor, but herself. I imagine the doctor needs healing too. She didn’t think the doctor had learned anything from the lawsuit and, in my opinion, if that is the case, he is definitely in need of healing. Also – unsuccessful lawsuits – and I’m sure there are plenty of those – leave the family with the loss and the financial harm. In Canada, we don’t have medical bills, but, our lawsuits are worth much less money, and therefore in Canada, most often “there is no justice”. An elderly man had to spray paint, a middle aged woman spends her time typing excessively…and spends her money on cruises before the CMPA gets it.

      • Matt says:

        Janice, I don’t know what you call ridiculous, but yes sometimes they get a lot. But medical care in the US costs a lot. Especially if your injury will require long term treatment. So you can look at an award for millions for an injured child and say “that seems like a lot”, but the costs involved in treating that injury may very well be that high.

        On death cases you’re right the money won’t bring anyone back. But we don’t jail people for negligence generally in this setting, and we aren’t willing to say that since you killed them there are no damages. Money is an imperfect medium, but it’s the only one we have.

  12. SeaSpray says:

    Assuming you ruled out injury or other illness …why wouldn’t the patient be admitted overnight for observation? And if the patient left AMA it would be their responsibility.

    • Janice says:

      If the doctor could have known the patient would die, he would have admitted him. Hindsight is 20/20.

      If experts wouldn’t admit, you must acquit.

    • SeaSpray says:

      Hi Janice – I ask that because it seemed the ED docs at the hospital I worked in did keep patients overnight for observation when they came in for chest pain. Perhaps they went by another criteria I am unaware of …or it is done differently since 2005? I recall only one man refused to stay because he was concerned he didn’t have insurance and the staff was very concerned about him.

      • Janice says:

        SeaSpray – My guess is the criteria is probably different for various hospitals across the country. There is probably no set criteria for what is best practice or the lowest denominator of care, and even if there were, lawyers have their ways of making lower than the lowest acceptable. That’s their job, protecting money, not health.

    • WhiteCoat says:

      Why wouldn’t the patient be admitted overnight for observation?
      Several reasons.

      First, what benefit is there in admitting a patient overnight? Let’s say that we’re able to prevent 1 extra death in 5000 admits by admitting all chest pain patients overnight. But out of those 5000 patients, twenty (1 in 25 according to recent article) will get a hospital acquired infection, another 500 will have significant financial difficulties paying for the visit or will go bankrupt, and another 5-100 will have some other complication from the additional testing (renal injury or allergic reactions from angiogram dye, bleeding complications, etc).
      Still worth the admission?

      Second, it is seldom that we can “rule out” anything in the ED. I can’t prove that you absolutely don’t have heart disease, only make an educated guess that the risks of heart disease are low enough that you probably won’t have any adverse events before you follow up.

      As for AMA discharges, that’s where medicine is going to head. With high deductible plans and limited coverage, the ACA is making patients pay for more and more of their care. Patients will be forced to decide whether they choose to pay thousands of dollars for low yield testing or whether they will take their chances without the tests.
      Then, when there are bad outcomes, litigation will re-focus on whether the patient was adequately advised of the risks in not having the testing done.

  13. SeaSpray says:

    Interesting. I’ve learned some new things. :)

    By “rule out”, I meant rule out chest pain caused by an upper respiratory infection or muscle strain.

    I recall a Dr on TV (Mendelsohn, back in the 80s ..stating (because of infection risks)that people should fight like hell to stay out of the hospital and if they have to go in …that they should fight like hell to get out. How much worse are the infections now?

    The ACA …*S-I-G-H!*

    Well maybe sometime soon …you will have those high tech scanning capability with phones/other devices that will instantly read what is going on in one’s body.

    *If you haven’t already …consider doing a post on how to avoid an acquired infection as an inpatient.

  14. pat says:

    Everything you already wrote plus…. chest pain, resolved, no evidence of infarct or ACS, with negative diagnostic testing as indicated by ED chest pain protocol flow sheet, pt to follow up with PCP for further evaluation, appt obtained with Dr. Smith tomorrow. RTC To ED via 911 system of recurrence of CP> five minutes, or if severe, or new symptoms.
    discussed with pt risks/benefits of admitting for observation vs discharge……risks: iatrogenic illnesses/infections/excessive bills/unnecessary tests and charges, benefits: will be observed for recurrence. Explained that standard of care for this is discharge to home if EMS is available but offered the patient admission if desired; explained percentage of fatal MI within one week of discharge less than 1% but not zero. Pt understands and declines admission and endorses acceptance of ED chest pain protocol via signature. Wife also agrees.

    • Paul Hasse says:

      This would be wonderful Doctor to see if you just wanted to copy and paste this onto your chart, too bad it sounds like its too late, I am very sorry to hear about your legal struggles right now!

    • WhiteCoat says:

      Now let’s say that the doctor did everything you wrote (which would take significantly longer to discuss and document and would add to waiting times in emergency departments).

      Expert testifies that the instructions also should have included unexplained sweating and/or shortness of breath. Patient happened to have those symptoms and didn’t come to the hospital for them. Still a verdict for the doctor? Or do the patient’s widow and young children get compensation?
      Then patient’s wife testified that if you had told the patient that 2-4% of patients are sent home from the ED with acute coronary events, he would have chosen to be admitted, but you told him < 1% and misquoted the literature. Still a verdict for the doctor?

      Basic question is that if an expert testifies that what the physician wrote (or didn’t write) was evidence of the physician’s negligence, does the extra documentation trump the expert’s testimony? Or does the extra documentation just give the expert more fodder to use against the physician?

  15. Janice says:

    “discussed with pt risks/benefits of admitting for observation vs discharge……risks: iatrogenic illnesses/infections/excessive bills/unnecessary tests and charges, benefits: will be observed for recurrence. Explained that standard of care for this is discharge to home if EMS is available but offered the patient admission if desired; explained percentage of fatal MI within one week of discharge less than 1% but not zero. Pt understands and declines admission and endorses acceptance of ED chest pain protocol via signature.”

    This clearly shows the risks and benefits were discussed. It provides a safety net for the both the doctor and the patient. With a form such as this, the widow and her lawyer could not say that the doctor had intimidated her husband and her into believing the chest pain was just psychological, ignoring their concerns. With a form like this, a death may or may not be prevented, but I believe a lawsuit would definitely be prevented. I believe for certain it would promote safety and well-being in Canada. The doctor’s lawyer should advise the wife via her lawyer that learning has been done; a form will be used to help prevent future harm, and offer a small settlement. The plaintiff’s lawyer should advise the wife of the risks vs the benefits of not accepting the offer to settle. In Canada, with our system, it would be clear to me that the widow should settle. If this happened in Canada, the grieving widow would likely be completely destroyed, financially, mentally and emotionally. I believe learning and healing need to become a priority, and a non-adversarial means to achieving that is something patients would welcome, especially here in Canada.

  16. Joe Spurlock MD says:

    I would want to see thorough documentation of the docs decision making and the logic applied, and frankly wouldn’t care about much else as long as something resembling a normal “standard” workup, exam and history had occurred, and furthermore I want to see that this discussion had been had with the patient and that the patient had agreed with the decision making logic. The last time I can remember seeing this documentation in an ER chart is — almost never. An “expert” can (always) argue that some standard wasn’t followed, because there are enough standards to always argue that. However it’s very much more difficult to argue against a well documented logical conversation carried out with a patient and in the end abiding by a mutual decision between physician and patient based on that logic and patient preference/agreement. That is much more unassailable. In truth, this is also simply actual (vital) factual information missing from most charting, certainly from almost all electronic or T-sheet charting, etc. Difficult and time consuming, but helpful. Software like Dragon can certainly help, and since these discussions follow similar paths, certain amounts of canned text can be used to speed documentation of the discussion (or even references to the standard conversation a doc uses for that diagnostic situation). Also, FYI, the primary care or other followup doc would also love nothing more than to be able to read this missing paragraph or two in almost all ER charts and be able to pick up where that conversation left off instead of have to decipher cryptic charting that captures all sorts of ROS and bullet points but communicates virtually nothing of what the ED doc was thinking. No surprise then that lawyers enjoy picking on ER cases – they’re made to be easy picking by leaving out the most unassailable part of the chart – what you were thinking at the time and why. If you’re much of a doc, then this is exactly where more documentation is better.

    • WhiteCoat says:

      It’s great to include what you were thinking and why, but what if your thinking doesn’t consider the diagnosis that was missed? Then wouldn’t it be easy for the opposing expert to argue that the doc was so stupid he didn’t even consider the missed diagnosis?

      • JH says:

        I humbly ask: what about the Nurses notes: nurses are usually the ones giving the patient the final instructions/pt. teaching etc., after the doctor presents it first. We review and assess for “knowledge deficits”. I commonly saw ER (and other practice areas) nurses charting “pt. instructions given per MD, reviewed w/ pt., no questions/questions answered, verbalized understanding, dc’d to home, wife (whoever) will drive to home”… you get the idea.
        I am assuming the nurses testimony would be evaluated for value for either side, or no?

    • JH says:

      The one thing my Nursing school profs emphasized was always document your rationale to back up your interventions. I’ve already stated this, forgive the repitition, but if I were selected to be a juror for this trial (answering WC’s original question) the docs rationale for his diagnosis and decision to send this patient home rather than admit for obs., is the main thing I would want to know.
      As long as there was not something blatantly missed or other mistake, my decision would be based on his logic and the substantiation of the logic.

  17. Paul Hasse says:

    From a legal prespective, you are wrong. I am not sure if you have been told this or not yet, but you are simply wrong. Charting is vital to wining a case like the one you illustrated above. For example, it would be necessary to show the jury that you ran the EKG and the blood tests! Additionally, it would be even more important to show the jury that you REVIEWED these tests! That is key to sending anyone home in my experience in the med-mal defense world.
    However, your notion of an expert coming back and monday morning quarbacking the situation due to a enormity of charting, is well absurd. You will get questioned on your diagnosis or “failed” diagnosis; no matter what you will be questioned in a lawsuit doctor. That is the point of the whole lawsuit. Now sometimes, we find it difficult to make doctors think like lawyers and well vice-verse. So, I apologize for being so to the point, but this is how I feel strongly! I feel that doctors should chart, chart, chart! And well some of it may suck, do it, you never know who will decide to limp into a lawyers’ office.

    • WhiteCoat says:

      It’s convenient to make bald assertions, counsel, but no matter how many times you say I’m wrong, it doesn’t make it true any more than it would make a client liable if I kept repeating “you’re guilty” without supporting *evidence*.

      The results of tests are more than sufficient to demonstrate they’ve been performed. Alleging that they didn’t occur because I didn’t document them “is well absurd.”

      For you to allege that experts won’t have more of an opportunity to Monday morning quarterback a well-documented chart without supporting your assertions is also “well absurd.” I challenge you to create the perfect chart. I will pick it apart to the point that you beg me to take a check so I’ll stop.

      And I know that you recommend chart chart chart, but that wasn’t the issue. The issue was exactly what words should be chart chart charted. So in your experience in the med-mal defense world, what specific words should a doctor in this situation include in his chart to decrease the chances of being successfully sued?

  18. Janice says:

    I think you are fine if the test results are available, and they are o.k. But, what if the test results show a problem you should have considered before discharging the patient? Or what if there is no report, and/or the test goes missing, what then?

  19. pat says:

    You have a hard job. Your ED needs to incorporate the following in its protocol for admission vs. discharge. Via Ezra Amsterdam (a prior attending) in the Annals of Internal Medicine.

    The etiology of chest pain is serious in only a distinct minority of the multitude of patients who visit the emergency department (ED) with this symptom each year, but the consequences of missing acute coronary syndrome or other life-threatening conditions can include grave clinical sequelae and major liability. Thus, the dilemma of low risk but high stakes in this patient population continues to spur efforts to optimally serve both groups by rapid identification of those requiring urgent treatment and safe, cost-effective, and early discharge in the large majority with a benign condition.

    The contemporary approach to this challenge in many centers has evolved into accelerated diagnostic protocols (ADPs) that entail initial recognition of low risk based on clinical stability, normal electrocardiogram, and negative results for cardiac injury markers followed by a predischarge test to evaluate suitability for early discharge.1 Predischarge tests vary from exercise treadmill to stress imaging or computed tomographic coronary angiography (CTA), depending on institutional resources, expertise, and physician preference. Negative results allow discharge with outpatient follow-up while abnormal findings mandate admission. During more than 2 decades, this strategy has averted unnecessary admissions, reduced length of stay (LOS), and resulted in safe clinical outcomes.1 Indeed, ADPs have been associated with a greater than 99% negative predictive value for adverse cardiac events at 30 days or longer1 and have reduced the classic “rule out myocardial infarction [MI]” process from days to hours. However, despite these estimable results, the logic of routine cardiac testing for these low-risk patients has recently been sharply challenged on the grounds of clinical rationale,2 resource utilization, and cost—ironically, the same bases on which the case for cardiac testing was formulated.

    The report by Safavi et al3 in this issue of JAMA Internal Medicine is germane to this question. In their study of hospital use of noninvasive cardiac imaging (NICI) methods in a very large patient population evaluated for chest pain suspicious for myocardial ischemia, they found that (1) hospital use of NICI in these patients varied widely, (2) hospitals with higher NICI rates more frequently admitted patients for angiography, but (3) increased NICI rates were not associated with substantial differences in revascularization rates or readmission for MI. It might be concluded from these findings that the NICI did not provide any clinical advantage in the management of these patients and that the authors identified high utilization of an expensive resource that was not associated with substantial clinical gain. However, potential benefits resulting from the evaluation sequence but not assessed in this study could have included improved medical therapy for patients with cardiac disease who did not require revascularization and also reduced ED visits for chest pain in those shown to have no clinically significant disease. Thus, further study of outcomes in this population would be useful.

    The results of the study by Safavi et al3 offer a strikingly different perspective than that presented earlier in this commentary on the utility of cardiac testing, including NICI, in achieving salutary outcomes of ADPs in patients presenting with chest pain without MI. Their study is one of an increasing number of reports asserting that routine cardiac testing of low-risk patients presenting to the ED with chest pain is neither necessary nor cost-effective. Prasad et al2 cogently reviewed the evidence against routine testing of low-risk patients presenting with chest pain in terms of absence of improved clinical outcomes, increased costs, and obsolete rationale. Furthermore, the utility of excluding MI with a recently developed 2-hour diagnostic protocol using high-sensitivity troponin in patients with a normal result from an electrocardiogram and a thrombolysis in myocardial infarction (TIMI) score of 0 holds promise to further advance our management of low-risk patients.4 In the current state of our knowledge, it is reasonable to call for a halt to routine cardiac testing in favor of physician discretion in selection of patients for predischarge testing.

    Routine use of CTA in low-risk patients with chest pain is questionable and warrants specific attention. Despite a negative predictive value of more than 99%, decreased LOS, and lower upfront ED costs in fully capable units, this method has considerable drawbacks.5 These include ionizing radiation with its potential for future risk of cancer and a suboptimal positive predictive value that can promote follow-up invasive coronary angiography, additional radiation exposure, and use of nephrotoxic radiographic contrast medium, plus allergic reactions. Of importance, CTA is associated with elevated rates of invasive angiography and subsequent increases in revascularization, with the potential for increased downstream costs and no evidence of clinical benefit compared with usual care.6,7 In this regard, it is important to appreciate that even when testing does reveal coronary artery disease, a causal relationship cannot be inferred between symptom and disease. Computed tomographic coronary angiography is a remarkable tool, but clearly it should be reserved for selected patients among the low-risk group presenting to the ED with chest pain.

    At the University of California, Davis, Medical Center in Sacramento, we practice physician discretion in selecting patients for predischarge testing. In more than 500 patients discharged directly from the unit after evaluation consisting of normal results of electrocardiograms and cardiac troponin tests, there has been only 1 adverse cardiac event (0.2%) at the 30-day follow-up. Thus, low risk is not no risk, and the crucial aspects of this strategy remain meticulous clinical history and examination, accurate electrocardiographic interpretation, and reliable and contemporary assay for cardiac troponin. The extent to which this concept will reduce the burden of unnecessary testing of low-risk patients will depend on each institution’s patient mix, the readiness of clinicians steeped in the hazards of missed acute coronary syndromes to adopt new and reasonable algorithms, and the interests and influences on clinical care at their institutions.

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