CONTENTS:
Perspective: Futility
Too few patients seem to realize that eventually, at some point, further treatment is futile. Like taxes, death is certain.In my many years of emergency medicine practice, some of my most difficult experiences have been those in which patients (or their families) have approached their last days of life woefully ill-prepared for their departure. Far too often, both physicians and attorneys see the sad outcomes of that lack of preparation. But what is futility, and how should a physician address it with his/her patients? For more, click here.
Medicare wants its money back
Beginning in July, 2009, S. 2499 requires that plaintiffs receiving awards in liability cases repay Medicare for payments made by Medicare on the plaintiff’s behalf as a result of injuries for which damages have been recovered. Section 111, paragraph (8) is titled “REQUIRED SUBMISSION OF INFORMATION BY OR ON BEHALF OF LIABILITY INSURANCE (INCLUDING SELF-INSURANCE), NO FAULT INSURANCE, AND WORKERS’ COMPENSATION LAWS AND PLANS.” Liability insurers and attorneys representing plaintiffs in such cases will have to report if an individual filing a claim against the insurer is a Medicare beneficiary. If the beneficiary receives any form of settlement or award, Medicare wants 100% of its money back out of the proceeds. This may put a damper on smaller claims by older individuals and increase the disclosure requirements of plaintiff attorneys.
Must doctors also be prophets? Georgia Supreme Court to rule
The matter involves a missed case of Rocky Mountain Spotted Fever, a rare condition with some hallmarks that might tip off a physician. Those hallmarks were not present, however, in the case under consideration. What, then, is the physician’s responsibility? Must he/she be a prophet? The Georgia Supreme Court will consider the role of “hindsight” versus “foreseeability” in a malpractice case in which the judge’s instruction to the jury on these concepts is alleged to have been confusing. Regarding hindsight, “negligence consists of foreseeing and guarding against that which is possible and likely to happen, not against that which is only remotely and slightly possible.” Foreseeablility results in liability “if a defendant might have foreseen some injury would result from his act or omission.”
More on judgment and hindsight
Brenner and Bal write a great summary describing how an unfortunate medical judgment is different from a violation of the standard of care. Surgeons should be able to demonstrate that thoughtful consideration was given to all reasonable treatment options available for the patient. In terms of the exercise of judgment, the law requires judgment be show good faith, a mental or moral state of honesty, and conviction to the truth or falsehood of a proposition or opinion regarding conduct, even if such conviction is objectively unfounded. The law recognizes that physicians are not insurers or guarantors of the accuracy and correctness of medical judgment. A medical practitioner is therefore not responsible for a mistake in judgment, but the limit of this proposition is that the mistake cannot be so gross that it makes professional conduct substandard.
Flaps – check. Brakes – check. Airspeed – check. Can surgeons learn something from pilots?
Research from Harvard University suggests a 19-item checklist may help reduce surgical deaths and complications by as much as 40%. Included are things such as
- Introducing each member of the surgical team
- Assuring the right body part is marked
- Having x-rays in the room
- Administering any needed pre-op antibiotics
For a New York Times article on the report and the checklist developed by the World Health Organization, click here.
Unlike in church, confession doesn’t necessarily lead to absolution in the world of medicine.
According to an article in Medical Economics, “while saying I’m sorry may well be morally correct and soothing to the psyche, our society, unfortunately, provides little reward for contrition.” Some malpractice insurers can deny coverage for such an admission. According to the article, “from a legal perspective, saying I’m sorry is an admission… anyone who hears it can be called to testify against you, should legal action ensue.”
“Informal” consults can lead to malpractice claims
A “Malpractice Consult” in Medical Economics asserts that the standard of care is the same for informal advice as it is for formal, for billed care as well as for free care. One must use the same diligence, knowledge, skill, and research, and must act as a “reasonable physician in your specialty,” whether the consultation takes place in the elevator or at the bedside.
State of Emergency Medicine Report Card: Washington State receives mixed review
Our strengths.
Washington leads the nation with regard to the Quality and Patient Safety Environment, much of the strong score because of the State’s EMS system and coordination with hospitals.
Washington ranks fourth in Public Health and Injury Prevention, with a low rate of rate of traffic fatalities, a high rate (96.4%) of seat belt use, the nation’s second lowest infant mortality rate, and the fifth lowest percentage of adult smokers.
Our challenges.
The state ranks 51st in Access to Emergency Care with very low rates of staffed inpatient and psychiatric care beds, a great need for primary care and mental health providers, and few (1/2 the national average) emergency departments per 1 million people. The report also faults the medical liability climate for (1) being one of only 20 that have not instituted a medical liability cap on noneconomic damages, (2) only partially abolishing joint and several liability, and (3) for not requiring expert witnesses to be of the same specialty as the defendant.
First person singular: A defendant’s perspective on malpractice
Dr. Dave Baehren is a columnist for ACEP News and a writer whose work is always entertaining and insightful. In the December issue he shares his experience as a medical malpractice defendant in a New Orleans courtroom. He is one of many advocating for “experts who testify on behalf of the court, not on behalf of one side or the other.” His essay “Shoeless in the Big Easy” can be read on page 2 of the December ACEP News. This newsletter previously highligted an Australian version of this concept in January, 2008.