30 November 2012

What malpractice looks like

I review a lot of cases in my professional life. Some of them are just ones that our QA group comes across in our practice. Some are cases related to our liability policy. Some are cases I'm sent for review, or educational cases I present. We see a lot of cases which could have been done better, or in which the documentation is imperfect (or even downright bad). But, fortunately, most of the cases that pass across my desk are within the standard of care.

We get into a lot of arguments over when care provided (or documented) falls below the "standard of care." This term is widely misunderstood, especially in academic circles, and this causes a lot of controversy. Many docs interpret the "standard of care" to mean "best practice." So any care that deviates from best practice, they contend, is prima facie a failure to meet the standard of care (and hence, malpractice).  Unfortunately, this is the interpretation that plaintiff's experts also prefer to embrace! However, it's important to understand that "standard of care" is a legal term with a clear definition that is much more expansive: the level at which an ordinary, prudent professional having the same training would practice under the same or similar circumstances. So the standard of care is not only not perfect care, it is not even average care, because by definition that would imply that 50% of care is below the standard.

This is a pretty low bar, actually. As I explain to our docs and trainees, you are allowed to be wrong. You are allowed to make errors. You are not allowed to be negligent. There is a difference. This is all, of course, limited to the abstract world of theory and pre-trial evaluation. Actual juries have notoriously variable determinations as to the standard of care. But when reviewing cases in advance, deciding which to defend, or what you would testify in favor of, it's a good guideline.

The cases I review tend (obviously) to involve bad outcomes, and generally present with varying degrees of imperfection, but it's pretty rare for me to see a case and stone cold identify it as malpractice. Part of this is because most docs are not, in fact, negligent, and part may be because I have a bias towards the defendant physicians. Most of the deficiencies I see generally involved a diagnostic error, or a minor lapse that probably did not impact the outcome of the case, or simply poor supportive documentation of the thought processes that drove the decision-making the way it went.

Sometimes, though, there is a case that you review and immediately reach for your checkbook.

This is an example of one such case.

A 19-year old male presented to the ER with a fever and headache. He was generally well-appearing, though febrile and tachycardic and as ill-appearing as a young person with the flu typically appears. He had no focal symptoms to suggest a source for the fever (i.e. no cough or sore throat, etc), just generalized fatigue and bodyaches. He was alert with a totally normal neurologic exam. He had no meningismus; his neck was described as supple on two separate exams. He was given 2 liters of IV fluids and tylenol after which his vital signs normalized and he felt much better. He was re-examined twice and demonstrated improvement on both exams, which were well documented and timed. Nursing notes agreed that the patient was much improved. The doc, a conscientious and compulsive sort, did a fairly thorough work-up. Chest x-ray was normal, as was bloodwork, with the exception of a WBC 11,000, just at the upper limit of normal. Influenza swab was negative. Blood cultures were sent, but antibiotics were not given. Because of the severity of the headache, he also did a spinal tap, which was normal. The patient was discharged home in the care of his parents with instructions to follow up with his doctor the next day for a recheck if he wasn't feeling better, and a voicemail was left with the PCP to ensure access to follow-up care. The discharge diagnosis was "Fever, uncertain source; possible viral syndrome."

So... before reading on, do you see any inadequacies in this case? I don't. If anything, the case was more aggressively worked up than was indicated, and for sure more workup was done than I would have, generally.

Except for one thing. The doctor documented a "normal" spinal tap when in fact the lab reported 110 WBCs, mostly neutrophils. This indicates that the patient had meningitis, quite probably bacterial.

More baffling, the doctor knew about this. The lab called the charge RN, and the charge RN notified the doctor, who added on CSF PCR studies for viral pathogens.

And yet he discharged the patient. Didn't call the diagnosis meningitis. Didn't tell him there was a possibility of serious illness. I have no clue why. It's baffling.

Now it's really easy to bash him as incompetent and dangerous, but I know this guy well. He's an MD/PhD who is double boarded in EM and critical care. He's smart as hell, and generally a great and conscientious physician. We don't know what happened here. Of course this case went on to the predictable bad outcome. The doc does not remember the case, so he can't really explain or defend it either. One can only presume that it was busy and he got confused or distracted, maybe had the discharge teed up and ready to go, expecting the negative LP results, and failed to change course on getting the results. It is, in any event, as clear-cut a case of a medical error as I can ever recall seeing. Most of us will never see such a case, unless you're doing expert review.

Now ask yourself, if he had not done the LP, the outcome would have been the same, and the allegation of negligence would still have been there: Fever and headache — how can you justify not doing the LP? If you've been in the trenches, though, you know that everyone with the flu also has a headache. It's part of the febrile syndrome. But the decision whether or not to LP is a judgement call. you can make a wrong judgement without being negligent. I would not have done the LP, based on the case as presented. I'd have been wrong, but in such a case that decision would have been well within the standard of care.

This is also a trend that I see when reviewing series of closed cases where the doctor lost in court or settled. Sure, there are cases where the care was fine but it settled because of a sympathetic plaintiff, or where a jury miscarried justice. But remember that the odds that a physician will prevail in a malpractice case is about five to one. We almost always win. When we lose, more often than not, there was a "WTF?" moment when you review the doctor's actions. It makes it really hard to present these cases for educational purposes: the docs reviewing the case can't put themselves in the position of making such an egregious error. The only possible conclusion is that the doctor who screwed up was an idiot or lazy or a "bad doctor." It's not true, though. There are bad doctors out there, but there are many more good ones. Of the good ones, we are all human and we all are subject to cognitive biases and errors, no matter how smart we are. And ER docs all bear the burden of a distracting environment with systems prone to error (hand-offs, triage cuing, overcrowding), working night shifts, seeing patients who may not be able to tell us what's going on. A set-up for errors.

In the last decade I have cared for about 15,000 patients, and I am sure that I have made an error just like this. I must have been lucky, since mine didn't blow up in my face. Maybe I caught it, or a nurse did, or it was for a less lethal condition. If you're honest with yourself, know that you will make errors like this, too.

So bear this in mind, when you think about "malpractice" and the "standard of care." Negligence, when you see it, is usually not debatable; it's obvious and flagrant. If there's a reasonable case to be made that the care provided was within the standard, it probably was an ordinary error or a mistake of judgement. This is not to say you will win in court! But perhaps you can think of it like pornography, in the words of Justice Potter Stewart, "I know it when I see it."


  1. Impressive and moving post,

    we live and practice in a strange world. Understandably from the patient's viewpoint there always is the individual outcome that counts. Not the actions and decisions taken, neither the doctor's choice of this or that diagnostic pathway. The more advanced we become in experience and in science, the more we see all these examples you alluded to. This patient history could have (and possibly already has) happened to any of us. But in our case it was one of the great many where luckily it didn't make a difference because it was viral, because it cured somehow, because it got picked up some hours/days later and was correctly treated.
    On the other hand we all daily see criticable actions without ever becoming a critical or at least "bad" legal outcome.
    It is absolutely necessary to accept the underlying flipside of what we learned and teach in EBM and science (trying to achieve better medicine than ever before):
    There invariably will be cases where we fail, as clinicians, tutors, humans... Impossibly not to!
    The only difference between a good doctor and a bad one is that one fails the fewest times possible and the other so much more.

  2. Tough case. Given the fact that we ER docs usually can't get through a single H&P without 3-4 interruptions, it probably had to do with the environment. If you have six-ten patients going at a time, you're bound to miss results you're waiting on or x-ray reads. Here's hoping I don't miss a positive LP.

  3. One thing that popped into my mind while reading this is the possibility that the Dr. was handling 2 similar cases maybe even with confuseable names due to ambigouse pronnouciation and at a crucial point did the "right action to wrong patient" (A common class of human error).

    While hard to implement correctly flagging test results for automatic (yes computer) review prior to discharge might have helped in this case.

    The problem of course is that lots of (mostly spurious) warning are no better than no warnings since true problems are hidden in the noise.

  4. You don't explain what the predictable bad outcome is here.

    Neutrophilic pleocytosis can and often is found early in viral meningitis. If protein and glucose are normal, and Gram stain is negative, the fairly low CSF WBC (bacterial meningitis more often produces counts >500) makes viral meningitis a non-crazy diagnosis.

    I say this as a neurologist, I'd raise my eyebrows at ER discharging this patient but it wouldn't surprise me if it had turned out OK. I'd suggest admitting him on the usual abx until cultures are negative for 48h. Some neuros suggest repeating the tap at that point to show a trend to lymphocytosis in the CSF.

  5. My husband is currently in hospital due to a prescribing error. He was given an antihypertensive that is known to interact badly with one of his psych meds (and I failed to notify his psychiatrist, so 3rd line of defense failed him too). Every RN and MD we've talked to since has said "He was given WHAT?" I have to think if the RNs know better, the MD and pharmacist should have too.

    He is now a week into hospital with compromised kidney function and unstable psychiatric status. We love his primary doctor and understand that mistakes happen, but we also cannot afford the co-pays on what could easily be a 2 week stay, unknown renal follow up, and more difficult to manage psych status with a class of drug now unavailable.

    As a physician, how would you suggest/prefer to see a situation like this resolved? I'm not asking for a medical or legal opinion, just your thoughts on what process would be most beneficial to all parties.

  6. Here in the UK, where medicine is currently free (we're slowly moving to a system where everyone will pay for it) there are many of us who dislike the idea of suing doctors for making "mistakes" like this. With medicine provided for all by the state, it leads to medics ordering stupid amounts of extra tests when they're not clinically needed just in case something improbable has been missed. This results in increased waiting times (i.e. rationing) for others who come in later that day, even if they're more serious in their presentation.

    The problem we have is that the authorities (and the courts) don't see a difference between "irregular symptoms where a disease would be caught by an irregular test" and "regular symptoms ignored by a medic and regular tests not ordered". I suffered this when a doctor silently refused to order tests for bowel cancer because she believed the symptoms of bowel cancer I was having were due to me being gay. Now that should be actionable, but not spotting meningitis when a patient doesn't present with any symptoms of it? Not actionable.

    However, in a commercial medical system, where doctors carry insurance for such things and people are paying for a certain standard of care? Well, yes, then commercial rules apply and medics must take the risk onboard. It's not right, but it is logical.

  7. I was a victim of medical malpractice. It was something that I never thought would happen to me. The doctor was below his standard of care and basically admitted that he screwed up on what was supposed to be a simple procedure. I turned to a philadelphia medical malpractice lawyer who went above and beyond. He did an incredible job and got me the compensation I thought was fair. I was very happy to have met his acquaintance and don't know where I would be without him today.

  8. I have made a similar mistake. The guilt you feel is almost unbearable. Especially when everyone thinks you are one of the best.

    When I realized my mistake -it was too late. I took a deep dive into a very black depression.

    Everyday you know that the chatter is "How the hell could he do that?"

    Its the question I ask over and over everyday since.

    A counselor gave me the best opinion - she said that no matter how capable you are - you are apt to make bad mistakes when your mind is overloaded.

    For example in addition to work, we were moving into a new home, my parents were having health problems and we suspected our son was doing drugs...

    In her opinion - based on experiences with hundreds of patients... the mind is like a hard drive with a limited capacity.

    When the brain reaches a certain limit she believes that incoming information is not welcome or processed because the brain has no more space...

    I think she is on to something here. When I am overloaded, I have noticed that even though I try to manage everything - a simple interruption can cause me to forget something.

    Add into the mix, being tired or having low blood sugar from skipping lunch and we each have the capacity to do something out of the norm.

    I hope the doc is doing okay. It is a tough recovery - mentally, emotionally and spiritually. Hard to forgive yourself when you usually perform at a stellar level of competence.

    I am a much more humble and understanding person because of it.

  9. I just read your post about your wife and juts wanted to send my positive thoughts to you and your family.

  10. I think Bree makes some very valid points, more articulately than I could have done.

    We are all fallible, even the best of us. We need to engineer our systems and work environments to protect us from that fallibility, rather than to augment it.

  11. This was well timed for me, as my mother recently experienced what may be malpractice (coincidentally at a PNW ER). It will be good to have an introduction to the concept as we decide how to proceed.

  12. The primary challenge for medical malpractice lawyers is to detect negligence on the part of the medical personnel involved. Fully understanding the specific case is a must and being able to clarify if the doctor or nurse did their very best despite the error that they committed, for them to be given the necessary consideration.

    Thao Cantu


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