Perspective: “Guidelines” are of little value
The Institute of Medicine has been an advocate for clinical guidelines for many years. Although the true value of guidelines has never been established, both clinicians and medical malpractice attorneys often want to ascribe greater credibility to them than they deserve. The issue was raised again in the past few months and I review it briefly here. The authors conclude that, because of the disarray found in guidelines, many clinicians (appropriately) do not use them.
Nor, in this editor’s opinion, should malpractice attorneys (either plaintiff or defense) hang their hats on them.
We aren’t getting what we’re paying for at high-priced hospitals
According to an article in Health Affairs, researchers have found that high-priced hospitals may fare worse on standard quality measures. “Variations [in care] occur not only from region to region, but also from hospital to hospital in cities around the country.” Investigators “looked at how much hospitals billed Medicare for caring for chronically ill patients during the last two years of life,” and “compared how much the hospitals charged with how well they fared on some of the…quality measures described on the federal Hospital Compare website.” The result: “Hospitals that charge more fare worse on standard quality measures.”
“Loss of chance” doctrine in Massachusetts
In a May 8 article in Medical Economics, S. Allan Adelman, JD, analyzes the impact of a recent ruling in Massachusetts that modifies the “loss of chance” doctrine there. In the case of Matsuyama v. Birnbaum, Massachusetts has now joined 20 other states in applying what is called the “loss of chance” doctrine, which provides that even if a patient had less than a 50-50 chance of a full recovery at the time of a physician’s negligent act, it is a compensible injury if that negligence deprived the patient of any chance of recovery.
New TIA Guidelines
For those following developments in evaluation, treatment and outcome of TIA and stroke , a recent article in Stroke summarizes current thinking on this issue. Key point: An ABCD2 score of 3 or greater seems to be the cutoff that predicts stroke following TIA. Three previous posts on this have been published in Medical Malpractice Bulletin and can be found under “Perspectives” on the left of the page.
Neurologists, National Quality Forum at odds over 45 minute CT scan rule in stroke
The Wall Street Journal (4/21, Burton) reports that neurologists disagree with the recent decision of the National Quality Forum NOT to mandate that a CT scan be done within 45 minutes of arrival in suspected stroke patients. A CT scan is the key test to determine if a patient is a candidate for “clot buster” therapy. The Forum felt that vague wording created more questions than answers. Many hospitals are ill equipped for compliance with such a mandate, citing cost of 24/7 availability as one obstacle. Stroke neurologists say the rejection “threatens to compromise stroke care nationwide,” and the Forum says it is “willing to reconsider the stroke-treatment guideline.”
PA not at fault for notifying non-patient of incidental finding
A Physician Assistant, Mr. Z, was testing new software for a CT scanner and needed a body to scan. A co-worker, Mr. Q, volunteered. On completion of the scan, the PA noticed that Mr. Q had a lot of calcification in his coronary arteries and advised his co-worker to see a cardiologist or his own physician immediately. When Mr. Q ignored the warning and died playing basketball a few days later, the family sued the PA. A summary judgment was granted in favor of the PA. The judge ruled that
- Mr. Q was not Mr. Z’s patient
- Neither Mr. Q nor any clinician caring for him sought out Mr. Z to render medical advice.
- Mr. Z was not tasked with evaluating Mr. Q’s health. His assignment was to evaluate the accuracy and methodology associated with the CT scanner and its software.
- Mr. Z went beyond any duty he actually owed to Mr. Q when he voluntarily warned – twice – Mr. Q of the potential danger that the scan suggested.
[Editor’s note: But what if the PA had missed the finding?]
Arizona patient signs agreement: “We have no doctor-patient relationship.” Still able to sue doctor and win
A patient in Arizona saw a physician for an independent medical exam (IME) for his insurance carrier. The doctor reviewed the records, examined the patient and an MRI and believed nothing further needed to be done. “Eventually” [the actual word in the court record] the patient was told by a neurologist that immediate surgery on the cervical spinal cord was needed. Despite the surgery, the patient needed large doses of narcotics to control his pain (prescribed by the neurologist) and died of a drug overdose. His parents sued the physician who performed the IME, but not the treating neurologist, and won in the Court of Appeals. The court acknowledged that the patient had signed an agreement saying that there was no doctor-patient relationship and that the results of the exam ordered by the insurer would not be provided to the patient. But the judge ruled that the IME physician’s duty to the patient remained. Key questions arising from this case are:
- Why did the doctor who prescribed the narcotics that killed the patient have zero liability?
- What might this ruling imply for the liability of expert witnesses in general?
- What now happens to the neutrality of the IME process? If the physician has a duty to the patient, how can the insurer get a truly “independent” opinion?
- How willing will physicians be to perform IME’s in the future?
- Under what circumstances does a denial of a doctor-patient relationship carry any weight?
- Did prior drug and alcohol problems contribute to the patient’s death?
- The court apparently excluded from evidence certain material information that might have resulted in a different verdict. This case is 9 years old and we may not be done with it yet.
A summary of this case is available in the Arizona Business Gazette.
[Thanks to a reader, DG, for the alert on this case. Such tips are always appreciated and can be sent to me at chuck@pilchermd.com]
More on templates and EMRs
I am still advocating a “go slow” approach on the Electronic Medical/Health Record (EMR or EHR). Those of you with clients using a charting system based on mouse-clicks probably understand what I am talking about. These create a huge opportunity for error and contain no “color” or “flavor” of a doctor-patient interaction, and often little of the thought process of the physician. Note that an EMR is still better than illegible or insufficient handwriting, but not as good as a combination of hand-written notes and a complete dictated/transcribed record. More on this is available in an interesting blog post here.
Suing chiropractors for malpractice
LawyersAndSettlements.com (March 25, Craig) has a report on DC attorney Michael Abelson’s experience in dealing with cases involving chiropractic malpractice. Bottom line: Manipulation has a sketchy, if any, scientific basis and is fraught with danger such as stroke, especially when the neck is manipulated.