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June 2023

Volume 17, Number 6 June 2023

In the News

Factors increasing Risk for Medical Malpractice Claims / Healthgrades 5/23/23, Nickey Scarborough
1. An AMA 2022 survey (all specialties) indicates suits are affected by:
  1. Age — the older the clinician the greater the likelihood they’ve been sued (but they’ve seen more patients).
    1. 11 claims / 100 physicians under 40 (9.5% sued to date)
    1. 100 claims / 100 physicians over 54 (47% sued to date)
    1. A study specifically of EPs demonstrated the only factor that was correlated with suits was the number of years in practice = the number of patients treated)
  1. Sex — Women in general are sued much less than men (although they see slightly fewer patients).
    1. Women sued to date = 24%
      1. Why? Theories? MedPage Today, Ron Harman
        Women are less likely to be surgeons (surgeons have the most suits).
        They spend more time with patients.
        They ask more broad-based questions.
        They score higher on empathy scales / patient satisfaction.
        Women hospitalists have lower mortality and readmissions.
    1. Men sued to date — 37%
  1. Suits by Specialty
    1. Emergency Medicine percent sued to date = 47%
    1. OB/GYN percent sued to date = 62%
    1. Surgery (general and other subspecialties) = 56-59%
    1. Orthopedic surgery = 47%
    1. Allergy/Immunology = 7.1%

Doctor Accused of Impairment
Mother accuses FP resident of being impaired while examining her children.
Hospital does not get an immediate drug screen (was gotten the next day).
Hospital does not follow its fitness for duty protocol.
Resident was put off duty — state Medical Board and NPDB were both advised.
Damage to reputation and ability to get future work.
Jury $3.7M for emotional distress and contract damages.
Another case – $4.75M OB/Gyn accused by nurse of being “under the influence.”
If accused, to defend yourself:
- Immediately determine the hospital’s Fitness for Duty protocol.
- Immediately request a drug screen and obtain it properly.
  - Give two samples that are sealed (2^nd to confirm the 1^st).
  - Follow chain of evidence principals.
  - Observed sampling? Temperature of urine?
- Obtain in writing the evidence supporting the allegations.
- Any medical evaluation needs to remain HIPAA compliant.
- A suspected individual has Americans for Disability protections if it is determined that they have a substance use disorder.
If you are the one bringing the concerns:
- Follow the hospital’s protocol to the letter.
- Understand that action needs to be taken as soon as an employee or contractor is suspected of being compromised — tomorrow is too late.
- It is very likely that the suspected clinician will be removed from work immediately (will likely be a problem in small, single-coverage EDs).

More Challenges to Caps on Pain and Suffering
The state of Iowa currently has a $250,000 cap on noneconomic damages — but there are huge loopholes.
A new law has been proposed (and because they had a recent $97.4M jury award for a bad baby case).
The proposed new law — $1M cap on pain, suffering and emotional distress with a 2.1% COL increase.
The trial bar claims it overreaches and some lawmakers agree.
The malpractice climate may determine whether physicians wish to practice in a state.
The outcome is pending.
According to the Expert Institute:
- “Medical malpractice claims have the most commonly capped damages among the fifty states. Twenty-six states cap non-economic damages in medical malpractice claims, while six have “total caps” that limit both economic and non-economic compensation: Colorado, Indiana, Louisiana, Nebraska, New Mexico, and Virginia.” May 30, 2023

Cases

Telephone Consult Gets Doctor in Trouble (Medscape, February 10, 2023, Wayne Guglielmo)
In July of 2017, a patient arrived at an emergency department in Canton IL complaining of neck pain and an insect bite that had resulted in a swollen elbow. The ED doctor ordered tests and prescribed an anti-inflammatory pain medication and a muscle relaxant. The EP consulted by telephone another physician — an internal medicine specialist and pediatrician who was on call that day and who enjoyed admitting privileges at the hospital. The court records show that the emergency physician and the telephone consultant agreed that the patient could be discharged from the ED despite the consultant’s differential diagnosis indicating a possible infection.

Three days later, now with hypercapnic respiratory failure, sepsis and altered mental status, the patient was again seen in the same emergency department and was treated by the original emergency physician (not a good day). Ultimately, he was transferred to a larger hospital. There an MRI showed that the patient had developed a spinal epidural abscess. The patient subsequently died of the infection.

As part of the lawsuit the consulting physician was included in the case. The consultant cried foul in a motion for summary judgment claiming that as merely an on-call consultant he had neither seen the patient nor established a relationship with him thereby precluding his legal duty of care.

The first trial court agreed and granted the motion, however, the patient’s family objected, and it was taken to the appeals court of Illinois. In a unanimous decision the three-judge panel reversed the lower court’s ruling. The judge who wrote the majority opinion stated that both as the on-call doctor and the one with final admitting authority these facts undermined his argument for summary judgment. Also, the judge noted that the conversation between the emergency physician and the on-call doctor represented a formal exchange as acknowledged by the hospital bylaws. At press time no trial date had been set.

The formal establishment of a doctor-patient relationship is not needed in this case, but rather, would the actions of the on-call physician be reasonably foreseeable to relate to the outcome.

Dr. Lindor feels it is important to make the distinction between a formal consult (with the conversation documented in the record) vs an informal, patient-nonspecific query of a colleague that is not documented.

Another Locked-In Case (Las Vegas Review-Journal, Katelyn Newberg, 2/9/23)
A middle-aged Nevada woman was awarded a $47 million verdict in a medical malpractice case, although her lawyers said she will likely only see a fraction of the money. The patient alleged that doctors failed to adequately treat her low sodium levels when she was hospitalized as the result of a fall in which she hit her head on a dresser. She also had a history of alcoholism.

Because doctors allegedly raised her sodium levels too quickly, Geller now suffers from locked-in syndrome meaning her brain is still functioning, but she cannot move and can only communicate through blinking. At the end of the five-week trial a jury awarded the $47 million of which $35 million was for non-economic damages of pain and suffering but a cap in Nevada for non-economic damages in medical malpractice lawsuits means that $35 million will be reduced to $350,000. The patient’s attorney said, “This is the worst injury known in medicine and it’s worth $350,000.” Ultimately the patient will likely receive $4 to 5 million of the total settlement which will represent damages from medical fees and lost wages. However other parties to the suit settled prior to trial so the patient will get this money as well.

Low Potassium Cardiac Arrest (Eric Funk’s MedMalReviewer, February 20, 2023)
The next case involves a female with a rather complicated medical history.
She was 64 years old and admitted to the hospital with what was thought to be a case of recurrent osteomyelitis. She was placed on IV antibiotics and admitted to a hospital.
Her BMP showed a potassium of 2.6 and the patient was treated over the next several days with PO and IV potassium. Her potassium stayed between 2.5 and 2.8 despite these replacement attempts.
On the 4th hospital day, she suddenly went into cardiac arrest; however, the patient was resuscitated and had a good neurological outcome.
Interestingly, despite her good neurologic outcome, the patient was admitted to the hospital several months later with endocarditis which she attributed to the cardiac arrest. Valve replacement surgery was required.
The emergency physician was dropped from the case and seemed to not be culpable, but several of the defendants settled with the patient.
The theme — be aware and acknowledge significant lab abnormalities and treat if clinically indicated.

Low Potassium Cardiac Arrest
17 YO presented with abdominal pain, nausea, and blood in stool.
ED work-up OK except for low K (number not specified).
Repeat K on F/U – 2.9 / PO replacement for 2 weeks per PMD.
10 days later presents to ED with abdominal pain and heavy menses.
K was 2.7 on discharge / ondansetron prescribed.
Cardiac arrest 12 days later (rare QT prolongation with oral ondansetron and low K).
Legal case pending.
Consider other antiemetics in similar cases.

Low Sodium Causes Seizure and Brain Injury (From Medical Malpractice Insights, June 2023)
Epigastric pain and anxiety two months post hysterectomy.
PA prescribes lorazepam and omeprazole.
Feels worse – goes to the ED the next day.
Given MS and ondansetron, Na 122 (patient allegedly given the info regarding the low sodium by EP orally but communication not documented) Given 2L NSS.
Seven days later again sees her PCP’s PA.
No pain but depression and anxiety.
Six days later found on the kitchen floor with a head wound.
At hospital Na 115.
Speculation she had a hyponatremic seizure that caused the fall.
Persistent symptoms from TBI.
Eight-day trial / $1.6M.
Significant lab abnormalities should be documented and treated if indicated and follow-up advised.

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Rachel Lindor, MD Kevin Klauer, DO, EJD Rick Bukata, MD