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How to Avoid Liability Risks When Treating Medical Complications

Thirty-one-year-old Kimberly Jones did not want to have more children, so just nine hours after giving birth to her third child, the Seattle-area mother had what should have been a routine tubal ligation.

But an anesthesiologist, who was himself addicted to painkillers, horribly mismanaged Jones' care and the resulting brain damage left her in a persistent vegetative state after cardiac arrest. Jones is now confined full-time in a nursing home; her family won a $8.5 million judgment against the anesthesiologist and the hospital.

Neurologists treat patients with this type of brain injury on a regular basis. Sometimes they consult on cases where there is clear medical negligence; other times it may not be so clear by the time they are called in.

In most instances there will probably not even be a hint of negligence, but a patient may have known risks of specific medical procedures or conditions. The administration of tissue plasminogen activator (tPA), for example, can lead to brain hemorrhage. Accident victims or those with cardiac arrest may survive with serious and irreversible brain damage.

These situations may prompt questions about liability risk. The jaundiced view is that anybody can sue anybody for anything, but experts say there are precautions you can take to avoid being sued.

They also stress that adherence to treatment guidelines, appropriate informed consent procedures, and all the other common sense behaviors that make for good clinical care remain paramount.

THE RESCUING DOCTOR

No statistics are available on the number of times neurologists are sued in instances like these, but Abbott Brown, a nationally known plaintiff's malpractice attorney, said such cases are “fairly rare.” After a bad outcome, the neurologist or others who are called in, commonly referred to as “the rescuing doctor,” are typically not named in negligence suits, said Brown, a partner with Bendit Weinstock, PA, in West Orange, NJ.

“This may be because by the time the rescuing doctor gets there, the damage has already been done,” Brown said, “so there is no proximate causation between what the rescuing doctor does or fails to do and the ultimate injury. They may sometimes be brought in by lawyers who sue everyone in the charts” but are likely to get knocked out of the suit later, he said.

Even so, there are instances when you might not want to take such a case, said Edward David, MD, the deputy chief medical examiner for the state of Maine, and a frequent speaker on medical malpractice. “If the neurologist is called when the cause has played out, [liability] risk is small. It is important to make sure that the doctor explains his or her role” to the patient and family, said Dr. David, a neurologist by training who is also an attorney.

Neurologists, Dr. David said, should “tell the other caregivers that your obligation is to the family and patient, and that includes open and honest communication on how the patient got to this point. Make sure the family knows the chain of causality clearly ended before the neurologist's arrival. If others are covering up, you may not wish to get involved.”

However, laws and court rulings vary as to when the doctor-patient relationship is formed. Some hold that it is formed simply when the treating physician contacts you for input, and you may never have seen the patient.

At that point “not getting involved can lead to abandonment charges and still put the doctor at risk of being part of a cover-up,” Dr. David said. He added that some communications with a hospital peer-review team and administrators about a patient “could be considered privileged” information.

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Dr. Michael Lobatz said that just because you are called to consult on a case does not mean you must see the patient.

“If things are not straightened out, the depth of knowledge of the case on the part of the neurologist must govern whether he or she can opt out,” he said.

Another important way to protect yourself is to stay within your area of expertise. Just because you are called to consult on a case does not mean you must see the patient. If you determine, after learning about the injury, that you do not feel qualified to offer an opinion, say so, said Michael Lobatz, MD, medical director of rehabilitation at Scripps Memorial Hospital and a clinical assistant neurology professor at the University of California-San Diego.

PRECAUTIONARY STEPS

Say you agree to take the case. What's next? The keys to avoiding liability and providing good care are “complying with the standard of care, and then in liability situations, carefully and accurately documenting all times, observations, actions, and interactions with other health-care providers,” Brown said.

He cautioned that you should be circumspect about what you tell patients concerning prior care. “The obligation to communicate with the patient is [required by] medical ethics,” he said. “However, one should probably refrain from criticizing the care provided by other doctors, that is, bad-mouthing other doctors, a condition I see all too often.”

There is “some liability risk if the doctor is playing a role in determining what or how much should be done,” Dr. David said. “So it is important to work closely with the family or person with the power of attorney to ensure that everyone is on the same, well-informed page.”

This means obtaining informed consent. Dr. Lobatz recommended taking extra steps to ensure that full informed consent is granted and documented. “It is extremely important to obtain a witness to the informed consent,” he said, “as disputes can arise about the competency of the individual. If someone else is signing for the patient, it is good to have a nurse or someone else witness that.”

“It is also wise to ask the nurse who is caring for the patient to separately document that the physician met with the patient and that informed consent was obtained. That is a layer you can put in to protect yourself,” he added.

One area that should also be discussed before obtaining consent is the possibility of moving a critically injured patient to a skilled nursing facility or other site. It is important to prepare families, Dr. Lobatz said. “It is better to plan than to suddenly have to make a decision.”

BUILDING TRUST

“If there is conflict, real or sensed, between the doctor and the family, a suit or licensing complaint may occur regardless of the quality of care. The issue becomes even more tenuous when the family disagrees” as in the Terri Schiavo case, Dr. David said.

“Families can become very irate and angry if there is a change in care that they were not made aware of or consulted on. Communication is critical,” he continued. “Time spent explaining is never ‘wasted.’”

Dr. Lobatz echoed those sentiments. “Bad news is better than no news; what families get upset about is lack of communication.”

Washington, D.C.-based neurosurgeon Ron Uscinski, MD, agreed. “The cornerstone of the practice of medicine is the doctor-patient relationship,” he said. “That is based on trust. In order to gain the trust of patients or families, the first thing you want to do is show that you trust them. It works both ways. We shouldn't be looking at patients as potential litigants.”

“I don't look at patients as patients,” he continued. “I look at them as people who are sick. People respond to that approach very well. Patient sounds more impersonal. And I am not a health-care provider…I am a doctor.”