THB
LARYNGOSCOPE. JANUARY 1978
Vol. LXXXVIII
No. 1, Part 1
CAUSE AND ITS PREVENTION.*
MALPRACTICE -
S. ROSENTHAL, J.D., M.S., St. Louis, Missouri.
ROBERT
As legal counsel for several medical institutions in the City of St. Louis, for the purposes of advising administration with regard to medical malpractice questions and handling malpractice cases, I am called upon to conduct seminars directed to the hospital medical staff. The following material was taken from such a seminar given to the Department of Otolaryngology at one of these institutions. I. THE GENESIS OF A MEDICAL MALPRACTICE LAWSUIT.
Prior to the filing of a medical malpr!l-ctice case, the patient-plaintiff has sought advice from an attorney. This is elementary but leads us to the crucial question: what brings the patient to the attorney? Based on my experience, few patients seek medical advice. or treatment with the intent of eventually filing a lawsuit. There gene~ally must be some catalyst to change the patient's disposition or cause him enough concern so that he concludes that legal advice is necessary or appropriate. This catalyst can take one of many forms. A. Medical Accident. In any human endeavor mistakes are inevitable and, of course, the practice of medicine is no exception. When a patient perceives that a mistake has been made and that as a result he has been made to suffer, the patient may then seek legal advice. This perception can be based on an error obvious to the patient, on admission by the treating physician, or it may be brought to the patient's attention by a concurrent or subsequent medical care provider. B. Less Than Successful or Unexpected Adverse Result. Medicine is not an exact science and, as a result, untoward results occur in the absence of error. Such unfortunate results are easy for the patient to perceive but difficult for him to understand. Multiple questions arise in the pa~ tient's mind as to why a particular problem persists, or why a new problem has arisen. If a patient is unable to receive a satisfactory answer to these questions from those providing medical care, the patient may feel forced to turn to an attorney seeking an explanation. C. Poor Results fro m Previous Treatment Elsewhere. University hospitals in particular see many patients whom private practitioners refer after being unable to effectuate a cure. Such a patient may seek legal advice concerning the previous unsuccessful treatment. An attorney inves, •Presented a t Grand Staff Conference, D epartm ent of Otola ryngology, \Va.s hlngton Un lvers lt · Y School o f Medicine, St. Louis , Mo. Send R eprint Requ ests to Robert S. Rosenth a l, 112 N . 4th St .. S uite 330, St. Louis , Mo. 63102 or to Depa rtm ent of Otola ryngology, \Va shlngton Univ ersity, 517 S. Euc li d Ave., St. Louis, Mo. 63iIO.
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CAUSE AND ITS PREVENTION.
tigating such a potential claim may, because of either his lack of sophistication or because of the pressure of time, file a lawsuit against all treating physicians in total ignorance of where the problem really lies. D. Patient Rejects the Treatment Plan. There have been several lawsuits generated because of a particular patient's inability or unwillingness to follow his physician's treatment plan. Particularly when such a patient dies, it is difficult for the patient's surviving relatives to appreciate the fact that the primary responsibility for the patient's demise rests with the patient himself. The blame, therefore, shifts to the physician and legal advice is often sought. E. Complaint of Experimentation. Patients who have otherwise accepted a bad result may become angered if they come to believe their treatment was experimental. This information may come from an informal discussion with a physician acquaintance, from a magazine article, or from a lay friend. It is most often founded upon poor communication between the patient and his physician. The patient's perception of himself as a human guinea pig causes him anger, and may well lead him to an attorney, even though his information is not reliable and is in fact erroneous. F. The An11ry Patient. The patient may find his way to an attorney to vent his anger or frustration. This anger may result from such things as a medical bill which the patient thinks is unreasonable, beyond his means, or which has been rejected by his insurance carrier. Or, the patient may become angry because of discourteous treatment by the physician and his office support. II. ASSISTANCE BY THE PHYSICIAN IN HIS OWN MALPRACTICE DEFENSE.
A. Early Warning Signs of ct Malpractice Lawsuit. It is important for the practicing physician to understand and be able to identify the early warning signs of a medical malpractice case. Early warning signs of a medical malpractice case include: the untoward or unexpected result, the dissatisfied or angry patient who does not feel that he has received the level of care he deserves, unexplained or unexpected requests for a copy of the patient's medical record, or an attempted contact by an attorney on behalf of the patient. If any of these signs are present, it may indicate a malpractice lawsuit is in the making. The significance of any one factor should be measured by the physician against his knowledge of the patient and the patient's family in deciding the imminence of litigation. Once lawsuit papers have been received or upon receipt of the threat to sue, the physician must act immediately to protect his interest. It is suggested that the physician contact his insurance carrier if he has insurance, or his attorney. Failure to act upon receipt of a lawsuit can result in a default judgment being taken against him and thus preventing the physician from presenting his side of the case. B. Th e Report. As attorneys charged with developing defense and protecting physicians, we ask to be contacted when any of these warning signs are present. The nature of this contact is by means of an incident report addressed to the attorney. In Missouri, addressing these reports to the attorney cloaks them within the attorney-client privilege and keeps them from being discovered by the potential claimant. The incident reports which are prepared in the anticipation of potential litigation, are not made part of a hospital record and are not generally distributed within an institution.
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CAUSE AND ITS PREVENTION.
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The incident reports are asked to be written in the form of a narrative using lay nomenclature as much as possible. If portions of the chart help to tell the story, then these portions of the chart are asked to be attached to the report. All the actors and witnesses are asked to be identified by name, affiliation, and status, i.e., attending physicians, fellows, interns, R.N.'s, technicians, etc. The physician is asked in this report to own up to any recognized error he may have made in matter of fact terms. The incident report is not to function as a confessional and the physician is not asked to bare his emotional soul. If no mistake was made by the physician, this information should also be included in the report. If the physician thinks that others may be second guessing him or in any way critical of his treatment, this information should also be included, together with a brief comment as to the reason for the criticism and why it is inappropriate. In order to get the cooperation from the physician in supplying us with the incident reports, it is important for the physician to understand the purposes the incident reports are put to. Once an incident report is received, it is assigned a number and filed chronologically. The reports are screened to determine whether any follow-up is needed by either the legal counsel or any administrative body. Among the uses the incident reports are put to by the attorney are included the following key purposes. 1. Investigation of Incidents While They are Still Warm. In those incidents where there are a number of persons involved, where there is a complicated factual situation or where there is a poorly documented medical record, then further investigation is probably required beyond the story set forth in the incident report. Memor.ies are short and witnesses mobile. It is extremely important to be able to obtain a thorough narrative of events while all participants are still available and while facts are still in mind. The importance of investigating a claim while it is still warm can best be illustrated by an actual example. An internist whom I recently represented in a malpractice case had a patient referred to him as her primary care physician. This patient kept several vital factors relating to her health from our physician for various reasons. Because of the patient's false and misleading history, several problems that this patient had went undetected in our physician's initial physical examination. This patient subsequently presented herself in a hospital emergency room in acute distress and died 48 hours later. The issues presented in that case were whether our doctor made his differential diagnosis and instituted appropriate therapy within a reasonable time frame. Suit was not filed until two years after the incident occurred, just prior to the running of the Missouri statute of limitations. As is our usual custom upon receipt of the lawsuit papers, we obtained a copy of the patient's medical records and held a conference .w ith our physician. In this particular case, hospital records had not been completely or accurately kept. The times at which crucial tests were ordered, run and reported were either totally absent from the chart or were incorrectly noted. Similar problems were present relating to the time of the institution of the appropriate therapy and when and how much medication was given in response to the patient's deteriorating condition. During our conference with the physician he was asked to supply us with this vital data. We found he no longer remembered in precise detail the information needed. Upon further investigation, we found that most of the nurses whose names appeared on
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CAUSE AND ITS PREVENTION.
the chart were either no longer at the institution or had no independent recollection of the matter. After 24 total hours of meetings between the physician and myself, we finally arrived at the most probable chain of events based in large part on speculation and supposition. Although I firmly believe that my client had provided good medical care to this patient, this fact would have been next to impossible to prove to a jury based on the medical record and my client's recollection of events. In addition, because of the shabby state of the medical record and because of his lack of total recall, my client was extremely vulnerable to cross-examination. This case was eventually settled, when I thought under other circumstances it could probably have been won. In addition, because of our weakness, the settlement value of this case was artificially high. If within a day or two of the patient's death, I had had an opportunity to speak with our doctor and his support staff, I could have properly prepared for trial without such a terrific expenditure of our doctor's time and without running up otherwise unnecessary legal fees. 2. Resolving the Lawsuit at an Early Stage. One of the purposes in our incident report investigation is to obtain a thorough medical appreciation of the facts as they relate to a particular case. The purpose of doing this is twofold, first so that we can understand the factual issues involved in the case and, second, so that we can intelligently talk the plaintiff's attorney out of suing when it is appropriate. Several lawsuits, that might otherwise have been pursued, were nipped in the bud by a simple call to plaintiff's attorney at an early stage of his preparation. It has been our experience that before a plaintiff's attorney has invested a lot of his resources into a case and before he has become emotionally involved with his client's cause, he is in a much better frame of mind to be talked out of his potential lawsuit. If we can convince the plaintiff's attorney that his investment of time and resources will pay no dividend, he will often decide not to sue for economic if not ethical reasons. If, on the other hand, this investiment has already been made and the commitment has been made to the client, the plaintiff's attorney is prone to conclude that he has nothing to Jose and that he might as well follow this case through to the conclusion. There have also been a few examples of clear and obvious error with regard to the care and treatment of a particular patient. If it is concluded that a lawsuit is inevitable, some of these cases can be settled directly with the patient. This serves two functions: first, the patient does not have to split his settlement with an attorney and thus he receives greater recompense and second, the costs that would have otherwise been necessitated in the defense of the lawsuit are saved. 3. Early Preparation of Defense. Assuming there is no doubt that a claim is about to evolve into a lawsuit, then it is very important to organize promptly all those involved for the defense. This, of course, entails talking to the principals and getting the complete, factual picture documented. Often this process reveals factual or professional disagreement between main participants festering just below the surface. For instance, it is not unusual to have an internist pointing a finger at a surgeon and the surgeon pointing his finger at the anesthesiologist and so forth. The effect of such disputes being aired before a critical opponent can be devastating. It is thus important to have a private discussion with all those involved in the patient's care. Often the differences have arisen from a
ROSENTHAL : MALPRACTICE -
CAUSE AND ITS PREVENTION.
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simple misunderst anding and can be overcome by a brief private discussion. Even if the problem is not resolved in this manner, it is still important that each physician know the perspective of other physicians before he either discusses the case with the patient or the attorney or testifies on the record. It is also valuable to line up support from independen t expert witnesses and medical literature at an early date, again so that their views may be considered by the treating physician before he is committed in a formal inquiry such as a deposition. Last, a knowledge of the facts is important in framing inquiries to the plaintiff and in conducting a medical, factual, and legal investigatio n in seeking to solidify the physician's defense. III. PREVENTION OF THE MALPRACTICE LAWSUIT.
A. Physician- Patient Relationship. As mentioned previously, most patients do not seek medical care with a lawsuit in mind. Something must happen to cause a patient to seek legal counsel. The two factors which predispose a patient to seek legal advice are anger and lack of information . Speaking with physicians, I am often presented with the same general inquiry: Dr. Jones has a national reputation, is excellent in his specialty and yet has four lawsuits pending against him, while Dr. Smith, who verges on incompetence and has made numerous errors, has never been sued. Why? This situation, while incongruou s and unfair, does happen. Although there are several reasons why this occurs, one principle reason often noted lies in differences in bedside manner. For instance, while Dr. Jones is probably aloof and uncommunicative, Dr. Smith probably has a good relationship with his patients who feel that he is concerned about their problems, whether he actually is or is not. Patients, who feel their doctor cares and who feel they have a strong personal relationship with him, are much more reluctant to sue than patients who have not developed such a relationship . The physician-p atient relationshi p is thus probably the single most important factor in preventing malpractice claims. It is important to view the patient as a partner in treating his ailments. Time must be taken to explain to the patient the nature of his problems and what the future holds in store for him. The patient must be given an opportunit y to refuse any treatment recommendations and all his questions must be answered. Nothing drives a patient to an attorney quicker than the feeling that the physician is unreachable or that he is covering up. Effort should be made to make the patient feel like a respected and important person, particularl y within the hospital setting. This requires the interest and concern of nurses, technicians and orderlies. The patient should be informed of the identity of his treating physician. The treating physician should take primary responsibil ity for the patient's care and should inform the patient that he is the one to look to for patient problems. The treating physician should tell the patient about the other persons at the institution who will be asking him questions or examining him or treating him. For instance, the patient should be told about the intern and resident who· will be responsible for him, the nature of their responsibilities, and what their purpose is. The patient should be informed of all specialists who are called in and the reason for their presence. If the primary care of the patient is to be provided by anyone other than the ad-
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ROSENTHAL: MALPRACTICE -
CAUSE AND ITS PREVENTION.
mitting physician, this should be explained to the patient. The patient should not be made to feel abandoned within the institution. If the physician who has been providing the primary care for the patient is going to be away from the hospital for any length of time, the , patient should be informed. The patient should be told who is to be responsible for his care in the absence of his treating physician and he should be assured that the substitute physician is competent and that he has been fully apprised of the patient's particular problems. It should be remembered that if the patient cannot identify with someone at the institution or if the patient feels that he has been abandoned, then he is much more likely to be angry and sue. This all boils down to one key factor: the patient should be treated with consideration and respect. The importance of a good physician-patient relationship can best be illustrated by a recent, true-to-life example. An out-of-state businessman, while having a dinner at a local restaurant, had a piece of meat lodge itself in his distal esophagus. After realizing the meat would not dislodge itself, he presented himself at the hospital emergency room and was ref erred to an otolaryngologist. :While the otolaryngologist was attempting to remove the meat, the cervical esophagus sustained a one centimeter tear and as a result, the patient developed an infection and pneumonia. Although the meat was removed, the wound healed, and the infections cured, the patient unexpectedly died as a result of an apparent cardiac arrythmia just before he was to be discharged from the hospital. The patient's widow in this particular case just happened to be a secretary to an attorney. Conversations with this attorney revealed that the widow firmly believed that her husband had received the best care available, that she and her husband were treated with courtesy and consideration by the hospital and that she was fully satisfied with the complete explanation provided by the physician. Further, she felt that during her husband's lifetime, the physician had been open and candid c.oncerning her husband's condition with her husband and herself. The widow thus had no desire to sue either the physician or the hospital. While there was no negligence present in this case, if the widow had come to question the level of care received by her husband or if there were any questions that remained in her mind as to what really happened, the lawsuit no doubt would have been filed. While this lawsuit may have been terminated in a verdict in favor of our defendant, such result would have been after a large investment on the part of the doctor in both time and emotion, not to speak of attorneys' time and expense over a period of years. B. Qua,lity Medical Records. After talking to his angry client in a potential malpractice lawsuit, the first thing that a plaintiff's attorney will do is obtain a copy of the medical record. Plaintiff's attorney will generally pore over the record looking for the presence or absence of particular facts that will support his client's position. For this reason, it is particularly important that the record not be unnecessarily utilized as a means of criticism of previous medical care. Such a note will be the first item that will attract the plaintiff's attorney's attention and may well serve his justification for filing a lawsuit. At the very least, the doctor or nurse making such a note will be called to the witness stand by the plaintiff's attorney and questioned at length to explain away his note. Criticism and comment are extremely important in medical education and in providing quality medical care. There are, however, better forums to express such
ROSENT HAL: MALPRACTICE -
CAUSE AND ITS PREVEN TION.
7
criticis m such as the hospital committees, grand rounds, persona l contact or peer review. autoThe medical malpra ctice lawsuit differs in many respects from an t acciden bile automo an in that is nce mobile acciden t case. One differe acwitness eye on based jury the for ructed reconst are facts case, the . counts or the reconst ruction of the accident scene by an expert witness l medica the around s revolve hand, other the on case, ctice A medical malpra record. The medical record tells the story. The plainti ff will argue that the based on the medical record, the physician obviously did not perform indicat es proper care, or that the absence of a note in the medical record not bethat an event either did not occur or that the reason for the note things ous danger most the of One event. the up cover to was there ing The fact. the after record the alter and try that a physici an can do is to carerecord the in story te comple the tell to is a dilemm this to n solutio in detail fully and completely with particu lar care being taken to record e, preinstanc for date, future a at ned questio be might which events those . patient his and an physici the n betwee surgica l or treatm ent conferences t A physici an who is a complete and accurat e historia n will alsotopreven occur. a malpra ctice suit from occurri ng by making mistake s less likelyrelatin g to A major functio n of the record is the tran sf er of inform ation sevbeen have There r. anothe to er provid care health one from a patient broke n nicatio commu of avenue this eral lawsuit s filed simply because Finally , down and an inappro priate treatm ent was provided as a result. with care l medica seek not do as we mentioned previously, most patient s can s patient These ons. excepti are there er, a lawsuit in mind. Howev A usually be spotted by the physician, by their overly-demandinga nature. k noteboo kept y actuall y recentl lawsuit a filed psychia tric patient who ng recordi him, with contact in came who e everyon sue to ned threate and encountheir names in his little book. When patient s of this nature are medical ary exempl that sure make to taken be must care tered, extra in the believe to reason any is there if records are kept. The same is true a plating contem be might he that patient a of ent treatm course of the lawsuit. recIt should be remem bered that the only way to have a good medical take also should ans Physici it. nt docume y properl to ord is to take the time the respons ibility to make sure that those providi ng supplem ental care, such as nurses, keep the record up to date and accurat e. doctrine. C. Inform ed Consent. Inform ed consen t is a complex legal basvery t, consen ed inform behind theory Withou t getting into the legal paa If body. his to done is what control to right a has patient a ically an physici the , surgery for ent treatm to tient does not give his consent tand unders not does patient the If . battery al technic for liable can be held le of conthe risks associated with a procedure, the law says he is incapab bad reined unexpla for liable held be can an physici the senting to it and nt. treatme sults even in the absence of neglige nt are Inform ed consen t is an element in most malpra ctice lawsuit s that expert an get cannot he that realizes y attorne ff's plainti the When filed. accepted witness to testify that the defend ant physician deviated from the has left he that all is issue t consen ed inform the then care, of rd standa iapprox , problem t consen ed infor:m in the lawsuit_. If it were not .for: the ar. disappe would office our m s lawsmt the of rd one-thi mately To avoid inform ed consen t problems, the patient should be told: (1)
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ROSENTHAL: MALPRACTICE -
CAUSE AND ITS PREVENTION.
what his problem is, (2) what the recommended course of treatment is, (3) what alternative treatments are available, (4) what the benefits are of the recommended treatment, and (5) what the risks are associated with this treatment. Of course, the most important element of the informed consent conference are the risks. Any· physician can present to his patient a litany of horrors in the informed consent conference; this is not expected or required, however. The patient may be informed of insignificant risks, such as transient pain of the arm, if those results are likely to occur. The patient should also be informed of the major risks, such as death, (even though the chances of occurrence are remote) if the knowledge of these risks may make a difference in the patient's decision making process. Last, the individual patient should be taken into account; for instance, while a change of voice as the result of an operation of the larynx may be inconsequential to most people, it may be devastating to the career of an entertainer. The court clearly rejects the following rationale sometimes offered by doctors: "If a patient knew of the risks of this procedure, then the patient would reject the procedure. The rejection of the procedure would not be in the patient's best interest. Therefore, the patient would be better off if he did not know the risks as he would then undergo the procedure." This attitude is viewed by the courts as both paternalistic and condescending and as ignoring the right of the patient to control his own body, Any physician who relys on this rationale, no matter how well intended, is treading on thin ice. If the physician feels, however, that the mere informing of the patient of risks may cause adverse consequences to the patient, (i.e., in cardiac care patients) then the consent should be obtained from the next closest relative. The fact that the patient was not told the risks himself should be clearly documented in the record with the reason why the patient was not explained the risks. This is a rare situation and is certainly the exception and not the rule. The mere informing of the patient of the risks involved in a certain procedure is not enough. The informed consent must be documented in the chart. Most informed consent cases end up in a swearing match between the physician and the patient in the courtroom as to what was said in the informed consent conference. The jury has the responsibility of listening to both sides and determining whom to believe. If there has not been a well-documented medical record with respect to informed consent, the result is an all-too-predictable scenerio: PLAINTIFF'S ATTORNEY: Doctor, can you tell the jury what you told Mrs. Plaintiff concerning the risks associated with the surgery you performed on her. DEFENDANT DOCTOR: I tell all my patients ... PLAINTIFF'S ATTORNEY: Doctor, I am not interested in what you tell all your patients; I only want to know what you told Mrs. Plaintiff about the surgery you performed on her on February 13, 1975. DEFENDANT DOCTOR: But I have performed five hundred similar operations since February 13, 1975, and there is no way I can remember what I told one particular patient. PLAINTIFF'S ATTORNEY: Okay, tell me who was present at this informed consent conference.
ROSENTH AL: MALPRACTICE -
CAUSE AND ITS PREVENTION.
9
I know Mrs. Plaintif f was there, and I think Mr. not really sure; I don't remember. I'm but too, Plaintif f was DEFENDA NT DOCTOR:
ETC., ETC., ETC.
Plaintif f will then take the stand and state this is the only surgery she has ever undergone, this was a big day in her life, and that she will never that forget what transpir ed that particul ar day. Plaintif f will go on to state prothe with ed associat risks about said was nothing that positive is she cedure, and had she only known about these risks, she certainl y would not have undergo ne the surgery . The jury will then decide whom toitbelieve much and under the aforeme ntioned circumstances, the jury will find . plaintiff the with identify to easier Is Mrs. Plaintif f intenion ally lying? Possibly, but maybe not. In a rey 23, cent study reported in Medical World News, V:ol. 17 (4), Februarone to recorded was patients 20 of ce conferen consent d 1976 the informe patwo days prior to surgei:y. Four to six mo!1ths after surg~ry, these tients were asked what risks had been explamed to them pnor to surgery with and only 29 % of the pa~ients could give an accur~te response. Even was what recalled patients the of % 42 only 0n, suggest1 of e influenc the failed patients 20 all Finally, ce. covered in the informe d consent conferen pato rememb~r major parts of the inf?rme d consent con'f erence and twovery tients, for mstance , stated t~at the mforme d .consent conference was cursory, lasting only two mmutes or so, while the actual tape recordin g of the conference showed that it lasted more than 24 minutes. The reason for these patients ' inability to recall may be due to the emotional burden out that the patient was under at the time of the conference or blocking the that fact the merely just or hear to want not did of things the patient patient wasn't listening. What should the informe d consent note say? The note should include problem, the following bits of informa tion: ~ d~finition. ?f the ~atient's risks the and benefits spec1f1c its with together re procedu d the suggeste fact the' occurred it when ce, alternat ives, who was present at the conferen that the patient indicate s he understa nds what has been explained and the fact that the patient wishes to proceed. Finally, it should be noted that no assuranc es or guarant ees were given to the patient that the treatme nt will effectua te a cure. An example of a good informe ? consent note that appeare d the day before surgery in a chart of a patient who recently sued his neurosu rgeon is as follows : "Review of myelogram indicates an anterola teral mass intradural extrame dullary at T-11 on left most compatible with memingioma. I have discussed the risk and complications of lack of surgery as well as those of surgery , i.e., paralysi s of legs, loss of bladder function, rectal function, sexual function, blood clot, infection and anesthes ia. I have explained these to both the patient and his wife. They are fully aware of these. No assuranc es or guarant ees given. They wish us to proceed with surgery , laminectomy with explorat ion and tumor removal. Will proceed with operatio n." This is followed b~ a note th.at .the. Chief of Service concurs. It is signed and dated by ~he ~esident and it is signed by the Chief of Service with a 11 o.k. next to his signatur e.
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While this note is not perfect, if called upon to do so, this neurosurgery resident could accurately reconstruct for the jury what transpired in that informed consent conference between doctor and patient specifically as to what risks were explained to the patient. Such an informed consent note can be very effectively used in the courtroom. In a recent case we handled, an orolaryngologist was sued for allegedly damaging the chordatympani nerve of the plaintiff during a stapedectomy operation. Plaintiff's attorney searched nationwide to find an otolaryngologist to criticize the defendant physician's performance of the operation without success. Without an expert witness, the court dismissed the malpractice court of plaintiff's petition and all that was left of the lawsuit wa.s the informed consent issue. The plaintiff testified that the defendant physician did not warn her that following surgery she might have a metalic taste and that her hearing might not improve. The defendant physician reconstructed the presurgical conference with the aid of the informed consent note in the chart projected onto a screen in the courtroom for the jury to see. The doctor explained that the note was prepared simultaneously with his conference with the patient and explained the significance of all the numbers, diagrams, an.d symbols he had pla~ed on the note. Based on this testimony, it took the Jury less than ten mmutes to hand down a verdict for the defendant physician. Had it not been for his note in the chart, the result may well have been different. D. Conclusion. As attorneys for medical institutions, we frequently speak with groups of physicians and discuss how to avoid malpractice lawsuits. Generally, we receive a good response and the physicians we speak to are enthusiastic about doing what is necessary to solve this problem. However, because physicians are busy and old habits are easy to fall back into, it has been our experience that this enthusiasm may be short lived. As attorneys, we don't pretend to be competent to tell physicians how to conduct their medical practice. Our function is to make the physician aware of the potential legal problems that he faces and to encourage him to use this knowledge as a factor in his daily practice of medicine. Malpractice lawsuits are not prevented solely by practicing "defensive medicine." Positive steps can be taken by the physician with the investment of very little time or resources. It is important that the physician treat the patient as a partner in his attempt to solve the patient's problems. It must always be remembered that, although the patient is not sophisticated in his knowledge of medicine, he knows what hurts and he is very concerned about it. Time must be taken to discuss the patient's problems and answer his questions in order to help take some of the mystery out of his aches and pains. Before any treatment is rendered, the physician must make sure that the patient understands the risks associated with the treatment and what alternatives are available and this must be documented in the chart. The physician must always keep a complete medical record and he must stress the importance of keeping a good medical record with his support staff. The record must be written with the understanding that someday it may be read by the patient or his attorney. Finally, the physician must be aware of the warning signs of a medical malpractice case and be prepared to react thereto. All incidents should be documented by, at the very least, the physician making notes for his own
ROSE NTHA L: MALPRACTICE -
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ct the events sometime in the reco rd so that he will be able to reco nstru able, the physician should inavail sel futu re. If the physician has legal coun the warn ing sign s of a potential litiform such counsel immediately when have an oppo rtun ity to reac t to the gatio n appe ar so that the attor ney will tions of the prac tice of medicine situa tion. Last , the legal medical consideraici~ n should not. let th~ .law conmus t be kept in mind ever y d.ay. The phys the law m dec1s10n makider cons ld shou mly certa trol his prac tice, but he ing in his ever yday practice.
L BRA NCH . THE UNI VER SITY OF TEX AS MED ICA
ersit y of Texa s Medical The Con tinui ng Educ ation Division of the Univ Bran ch, Galveston, Tex. Mrs. NeK ee NcNulty, Assi stan t to Step hen R. Lewis, M.D., Dire ctor; Spec ial Proj ects Assi stant . er, the Dire ctor; and Ms. Daw n Cram Texas Academy of Fam ily All Prog rams are accredited thro ugh the Phys ician 's Recognition Awa rd. Phys ician s and Cate gory I, with the AMA the above people at the folFor furth er infor mati on, please cont act one of lowing addr ess: y of Texa s Medical Bran ch Con tinui ng Educ ation Division, Univ ersit 77550. Phon e: (713) 765~ Tex. John Sealy Hospital, 8th Floor, Galveston, 2934. PROGRAMS SCHEDULED FOR 1978. Room, 12-16 hour s. This prog ram Febr uary , 1978 -An esth esia : Recovery will be conducted on the UTMB Campus. ew, 48 hours, Galvez Hotel Febr uary 5-11, 1978 - Fam ily Prac tice Revi ' Galveston, Tex. be announced. Galvez Hotel March, 1978 - Geri atric s, hour s and fee to ' Galveston, Tex. ez Hotel, Galveston, Tex. Apri l 6-8, 1978 - Cardiology, 20 hour s, Galv s. Location to be announced. April, 1978 - Infec tious Disease II, 20 hour Canc er Symposium. Hou rs to be anSeptember, 1978 - 2nd Ann ual nounced. Location to be announced. ent semi nars held in Angleton Beau Date s and subj ects for golden cresc ' be announced soon. will Fall this City mon t and Clear Lake for local society 'm eetin gs thro ugh Facu !ty spea ke:s may be scheduledPlea se call at least one mon th 1•n a dour office by callm g (713) 765-2934. e. vanc
LARYNGOSCOPE. JANUARY 1978
Vol. LXXXVIII
No. 1, Part 1
CAUSE AND ITS PREVENTION.*
MALPRACTICE -
S. ROSENTHAL, J.D., M.S., St. Louis, Missouri.
ROBERT
As legal counsel for several medical institutions in the City of St. Louis, for the purposes of advising administration with regard to medical malpractice questions and handling malpractice cases, I am called upon to conduct seminars directed to the hospital medical staff. The following material was taken from such a seminar given to the Department of Otolaryngology at one of these institutions. I. THE GENESIS OF A MEDICAL MALPRACTICE LAWSUIT.
Prior to the filing of a medical malpr!l-ctice case, the patient-plaintiff has sought advice from an attorney. This is elementary but leads us to the crucial question: what brings the patient to the attorney? Based on my experience, few patients seek medical advice. or treatment with the intent of eventually filing a lawsuit. There gene~ally must be some catalyst to change the patient's disposition or cause him enough concern so that he concludes that legal advice is necessary or appropriate. This catalyst can take one of many forms. A. Medical Accident. In any human endeavor mistakes are inevitable and, of course, the practice of medicine is no exception. When a patient perceives that a mistake has been made and that as a result he has been made to suffer, the patient may then seek legal advice. This perception can be based on an error obvious to the patient, on admission by the treating physician, or it may be brought to the patient's attention by a concurrent or subsequent medical care provider. B. Less Than Successful or Unexpected Adverse Result. Medicine is not an exact science and, as a result, untoward results occur in the absence of error. Such unfortunate results are easy for the patient to perceive but difficult for him to understand. Multiple questions arise in the pa~ tient's mind as to why a particular problem persists, or why a new problem has arisen. If a patient is unable to receive a satisfactory answer to these questions from those providing medical care, the patient may feel forced to turn to an attorney seeking an explanation. C. Poor Results fro m Previous Treatment Elsewhere. University hospitals in particular see many patients whom private practitioners refer after being unable to effectuate a cure. Such a patient may seek legal advice concerning the previous unsuccessful treatment. An attorney inves, •Presented a t Grand Staff Conference, D epartm ent of Otola ryngology, \Va.s hlngton Un lvers lt · Y School o f Medicine, St. Louis , Mo. Send R eprint Requ ests to Robert S. Rosenth a l, 112 N . 4th St .. S uite 330, St. Louis , Mo. 63102 or to Depa rtm ent of Otola ryngology, \Va shlngton Univ ersity, 517 S. Euc li d Ave., St. Louis, Mo. 63iIO.
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CAUSE AND ITS PREVENTION.
tigating such a potential claim may, because of either his lack of sophistication or because of the pressure of time, file a lawsuit against all treating physicians in total ignorance of where the problem really lies. D. Patient Rejects the Treatment Plan. There have been several lawsuits generated because of a particular patient's inability or unwillingness to follow his physician's treatment plan. Particularly when such a patient dies, it is difficult for the patient's surviving relatives to appreciate the fact that the primary responsibility for the patient's demise rests with the patient himself. The blame, therefore, shifts to the physician and legal advice is often sought. E. Complaint of Experimentation. Patients who have otherwise accepted a bad result may become angered if they come to believe their treatment was experimental. This information may come from an informal discussion with a physician acquaintance, from a magazine article, or from a lay friend. It is most often founded upon poor communication between the patient and his physician. The patient's perception of himself as a human guinea pig causes him anger, and may well lead him to an attorney, even though his information is not reliable and is in fact erroneous. F. The An11ry Patient. The patient may find his way to an attorney to vent his anger or frustration. This anger may result from such things as a medical bill which the patient thinks is unreasonable, beyond his means, or which has been rejected by his insurance carrier. Or, the patient may become angry because of discourteous treatment by the physician and his office support. II. ASSISTANCE BY THE PHYSICIAN IN HIS OWN MALPRACTICE DEFENSE.
A. Early Warning Signs of ct Malpractice Lawsuit. It is important for the practicing physician to understand and be able to identify the early warning signs of a medical malpractice case. Early warning signs of a medical malpractice case include: the untoward or unexpected result, the dissatisfied or angry patient who does not feel that he has received the level of care he deserves, unexplained or unexpected requests for a copy of the patient's medical record, or an attempted contact by an attorney on behalf of the patient. If any of these signs are present, it may indicate a malpractice lawsuit is in the making. The significance of any one factor should be measured by the physician against his knowledge of the patient and the patient's family in deciding the imminence of litigation. Once lawsuit papers have been received or upon receipt of the threat to sue, the physician must act immediately to protect his interest. It is suggested that the physician contact his insurance carrier if he has insurance, or his attorney. Failure to act upon receipt of a lawsuit can result in a default judgment being taken against him and thus preventing the physician from presenting his side of the case. B. Th e Report. As attorneys charged with developing defense and protecting physicians, we ask to be contacted when any of these warning signs are present. The nature of this contact is by means of an incident report addressed to the attorney. In Missouri, addressing these reports to the attorney cloaks them within the attorney-client privilege and keeps them from being discovered by the potential claimant. The incident reports which are prepared in the anticipation of potential litigation, are not made part of a hospital record and are not generally distributed within an institution.
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CAUSE AND ITS PREVENTION.
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The incident reports are asked to be written in the form of a narrative using lay nomenclature as much as possible. If portions of the chart help to tell the story, then these portions of the chart are asked to be attached to the report. All the actors and witnesses are asked to be identified by name, affiliation, and status, i.e., attending physicians, fellows, interns, R.N.'s, technicians, etc. The physician is asked in this report to own up to any recognized error he may have made in matter of fact terms. The incident report is not to function as a confessional and the physician is not asked to bare his emotional soul. If no mistake was made by the physician, this information should also be included in the report. If the physician thinks that others may be second guessing him or in any way critical of his treatment, this information should also be included, together with a brief comment as to the reason for the criticism and why it is inappropriate. In order to get the cooperation from the physician in supplying us with the incident reports, it is important for the physician to understand the purposes the incident reports are put to. Once an incident report is received, it is assigned a number and filed chronologically. The reports are screened to determine whether any follow-up is needed by either the legal counsel or any administrative body. Among the uses the incident reports are put to by the attorney are included the following key purposes. 1. Investigation of Incidents While They are Still Warm. In those incidents where there are a number of persons involved, where there is a complicated factual situation or where there is a poorly documented medical record, then further investigation is probably required beyond the story set forth in the incident report. Memor.ies are short and witnesses mobile. It is extremely important to be able to obtain a thorough narrative of events while all participants are still available and while facts are still in mind. The importance of investigating a claim while it is still warm can best be illustrated by an actual example. An internist whom I recently represented in a malpractice case had a patient referred to him as her primary care physician. This patient kept several vital factors relating to her health from our physician for various reasons. Because of the patient's false and misleading history, several problems that this patient had went undetected in our physician's initial physical examination. This patient subsequently presented herself in a hospital emergency room in acute distress and died 48 hours later. The issues presented in that case were whether our doctor made his differential diagnosis and instituted appropriate therapy within a reasonable time frame. Suit was not filed until two years after the incident occurred, just prior to the running of the Missouri statute of limitations. As is our usual custom upon receipt of the lawsuit papers, we obtained a copy of the patient's medical records and held a conference .w ith our physician. In this particular case, hospital records had not been completely or accurately kept. The times at which crucial tests were ordered, run and reported were either totally absent from the chart or were incorrectly noted. Similar problems were present relating to the time of the institution of the appropriate therapy and when and how much medication was given in response to the patient's deteriorating condition. During our conference with the physician he was asked to supply us with this vital data. We found he no longer remembered in precise detail the information needed. Upon further investigation, we found that most of the nurses whose names appeared on
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the chart were either no longer at the institution or had no independent recollection of the matter. After 24 total hours of meetings between the physician and myself, we finally arrived at the most probable chain of events based in large part on speculation and supposition. Although I firmly believe that my client had provided good medical care to this patient, this fact would have been next to impossible to prove to a jury based on the medical record and my client's recollection of events. In addition, because of the shabby state of the medical record and because of his lack of total recall, my client was extremely vulnerable to cross-examination. This case was eventually settled, when I thought under other circumstances it could probably have been won. In addition, because of our weakness, the settlement value of this case was artificially high. If within a day or two of the patient's death, I had had an opportunity to speak with our doctor and his support staff, I could have properly prepared for trial without such a terrific expenditure of our doctor's time and without running up otherwise unnecessary legal fees. 2. Resolving the Lawsuit at an Early Stage. One of the purposes in our incident report investigation is to obtain a thorough medical appreciation of the facts as they relate to a particular case. The purpose of doing this is twofold, first so that we can understand the factual issues involved in the case and, second, so that we can intelligently talk the plaintiff's attorney out of suing when it is appropriate. Several lawsuits, that might otherwise have been pursued, were nipped in the bud by a simple call to plaintiff's attorney at an early stage of his preparation. It has been our experience that before a plaintiff's attorney has invested a lot of his resources into a case and before he has become emotionally involved with his client's cause, he is in a much better frame of mind to be talked out of his potential lawsuit. If we can convince the plaintiff's attorney that his investment of time and resources will pay no dividend, he will often decide not to sue for economic if not ethical reasons. If, on the other hand, this investiment has already been made and the commitment has been made to the client, the plaintiff's attorney is prone to conclude that he has nothing to Jose and that he might as well follow this case through to the conclusion. There have also been a few examples of clear and obvious error with regard to the care and treatment of a particular patient. If it is concluded that a lawsuit is inevitable, some of these cases can be settled directly with the patient. This serves two functions: first, the patient does not have to split his settlement with an attorney and thus he receives greater recompense and second, the costs that would have otherwise been necessitated in the defense of the lawsuit are saved. 3. Early Preparation of Defense. Assuming there is no doubt that a claim is about to evolve into a lawsuit, then it is very important to organize promptly all those involved for the defense. This, of course, entails talking to the principals and getting the complete, factual picture documented. Often this process reveals factual or professional disagreement between main participants festering just below the surface. For instance, it is not unusual to have an internist pointing a finger at a surgeon and the surgeon pointing his finger at the anesthesiologist and so forth. The effect of such disputes being aired before a critical opponent can be devastating. It is thus important to have a private discussion with all those involved in the patient's care. Often the differences have arisen from a
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CAUSE AND ITS PREVENTION.
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simple misunderst anding and can be overcome by a brief private discussion. Even if the problem is not resolved in this manner, it is still important that each physician know the perspective of other physicians before he either discusses the case with the patient or the attorney or testifies on the record. It is also valuable to line up support from independen t expert witnesses and medical literature at an early date, again so that their views may be considered by the treating physician before he is committed in a formal inquiry such as a deposition. Last, a knowledge of the facts is important in framing inquiries to the plaintiff and in conducting a medical, factual, and legal investigatio n in seeking to solidify the physician's defense. III. PREVENTION OF THE MALPRACTICE LAWSUIT.
A. Physician- Patient Relationship. As mentioned previously, most patients do not seek medical care with a lawsuit in mind. Something must happen to cause a patient to seek legal counsel. The two factors which predispose a patient to seek legal advice are anger and lack of information . Speaking with physicians, I am often presented with the same general inquiry: Dr. Jones has a national reputation, is excellent in his specialty and yet has four lawsuits pending against him, while Dr. Smith, who verges on incompetence and has made numerous errors, has never been sued. Why? This situation, while incongruou s and unfair, does happen. Although there are several reasons why this occurs, one principle reason often noted lies in differences in bedside manner. For instance, while Dr. Jones is probably aloof and uncommunicative, Dr. Smith probably has a good relationship with his patients who feel that he is concerned about their problems, whether he actually is or is not. Patients, who feel their doctor cares and who feel they have a strong personal relationship with him, are much more reluctant to sue than patients who have not developed such a relationship . The physician-p atient relationshi p is thus probably the single most important factor in preventing malpractice claims. It is important to view the patient as a partner in treating his ailments. Time must be taken to explain to the patient the nature of his problems and what the future holds in store for him. The patient must be given an opportunit y to refuse any treatment recommendations and all his questions must be answered. Nothing drives a patient to an attorney quicker than the feeling that the physician is unreachable or that he is covering up. Effort should be made to make the patient feel like a respected and important person, particularl y within the hospital setting. This requires the interest and concern of nurses, technicians and orderlies. The patient should be informed of the identity of his treating physician. The treating physician should take primary responsibil ity for the patient's care and should inform the patient that he is the one to look to for patient problems. The treating physician should tell the patient about the other persons at the institution who will be asking him questions or examining him or treating him. For instance, the patient should be told about the intern and resident who· will be responsible for him, the nature of their responsibilities, and what their purpose is. The patient should be informed of all specialists who are called in and the reason for their presence. If the primary care of the patient is to be provided by anyone other than the ad-
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CAUSE AND ITS PREVENTION.
mitting physician, this should be explained to the patient. The patient should not be made to feel abandoned within the institution. If the physician who has been providing the primary care for the patient is going to be away from the hospital for any length of time, the , patient should be informed. The patient should be told who is to be responsible for his care in the absence of his treating physician and he should be assured that the substitute physician is competent and that he has been fully apprised of the patient's particular problems. It should be remembered that if the patient cannot identify with someone at the institution or if the patient feels that he has been abandoned, then he is much more likely to be angry and sue. This all boils down to one key factor: the patient should be treated with consideration and respect. The importance of a good physician-patient relationship can best be illustrated by a recent, true-to-life example. An out-of-state businessman, while having a dinner at a local restaurant, had a piece of meat lodge itself in his distal esophagus. After realizing the meat would not dislodge itself, he presented himself at the hospital emergency room and was ref erred to an otolaryngologist. :While the otolaryngologist was attempting to remove the meat, the cervical esophagus sustained a one centimeter tear and as a result, the patient developed an infection and pneumonia. Although the meat was removed, the wound healed, and the infections cured, the patient unexpectedly died as a result of an apparent cardiac arrythmia just before he was to be discharged from the hospital. The patient's widow in this particular case just happened to be a secretary to an attorney. Conversations with this attorney revealed that the widow firmly believed that her husband had received the best care available, that she and her husband were treated with courtesy and consideration by the hospital and that she was fully satisfied with the complete explanation provided by the physician. Further, she felt that during her husband's lifetime, the physician had been open and candid c.oncerning her husband's condition with her husband and herself. The widow thus had no desire to sue either the physician or the hospital. While there was no negligence present in this case, if the widow had come to question the level of care received by her husband or if there were any questions that remained in her mind as to what really happened, the lawsuit no doubt would have been filed. While this lawsuit may have been terminated in a verdict in favor of our defendant, such result would have been after a large investment on the part of the doctor in both time and emotion, not to speak of attorneys' time and expense over a period of years. B. Qua,lity Medical Records. After talking to his angry client in a potential malpractice lawsuit, the first thing that a plaintiff's attorney will do is obtain a copy of the medical record. Plaintiff's attorney will generally pore over the record looking for the presence or absence of particular facts that will support his client's position. For this reason, it is particularly important that the record not be unnecessarily utilized as a means of criticism of previous medical care. Such a note will be the first item that will attract the plaintiff's attorney's attention and may well serve his justification for filing a lawsuit. At the very least, the doctor or nurse making such a note will be called to the witness stand by the plaintiff's attorney and questioned at length to explain away his note. Criticism and comment are extremely important in medical education and in providing quality medical care. There are, however, better forums to express such
ROSENT HAL: MALPRACTICE -
CAUSE AND ITS PREVEN TION.
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criticis m such as the hospital committees, grand rounds, persona l contact or peer review. autoThe medical malpra ctice lawsuit differs in many respects from an t acciden bile automo an in that is nce mobile acciden t case. One differe acwitness eye on based jury the for ructed reconst are facts case, the . counts or the reconst ruction of the accident scene by an expert witness l medica the around s revolve hand, other the on case, ctice A medical malpra record. The medical record tells the story. The plainti ff will argue that the based on the medical record, the physician obviously did not perform indicat es proper care, or that the absence of a note in the medical record not bethat an event either did not occur or that the reason for the note things ous danger most the of One event. the up cover to was there ing The fact. the after record the alter and try that a physici an can do is to carerecord the in story te comple the tell to is a dilemm this to n solutio in detail fully and completely with particu lar care being taken to record e, preinstanc for date, future a at ned questio be might which events those . patient his and an physici the n betwee surgica l or treatm ent conferences t A physici an who is a complete and accurat e historia n will alsotopreven occur. a malpra ctice suit from occurri ng by making mistake s less likelyrelatin g to A major functio n of the record is the tran sf er of inform ation sevbeen have There r. anothe to er provid care health one from a patient broke n nicatio commu of avenue this eral lawsuit s filed simply because Finally , down and an inappro priate treatm ent was provided as a result. with care l medica seek not do as we mentioned previously, most patient s can s patient These ons. excepti are there er, a lawsuit in mind. Howev A usually be spotted by the physician, by their overly-demandinga nature. k noteboo kept y actuall y recentl lawsuit a filed psychia tric patient who ng recordi him, with contact in came who e everyon sue to ned threate and encountheir names in his little book. When patient s of this nature are medical ary exempl that sure make to taken be must care tered, extra in the believe to reason any is there if records are kept. The same is true a plating contem be might he that patient a of ent treatm course of the lawsuit. recIt should be remem bered that the only way to have a good medical take also should ans Physici it. nt docume y properl to ord is to take the time the respons ibility to make sure that those providi ng supplem ental care, such as nurses, keep the record up to date and accurat e. doctrine. C. Inform ed Consent. Inform ed consen t is a complex legal basvery t, consen ed inform behind theory Withou t getting into the legal paa If body. his to done is what control to right a has patient a ically an physici the , surgery for ent treatm to tient does not give his consent tand unders not does patient the If . battery al technic for liable can be held le of conthe risks associated with a procedure, the law says he is incapab bad reined unexpla for liable held be can an physici the senting to it and nt. treatme sults even in the absence of neglige nt are Inform ed consen t is an element in most malpra ctice lawsuit s that expert an get cannot he that realizes y attorne ff's plainti the When filed. accepted witness to testify that the defend ant physician deviated from the has left he that all is issue t consen ed inform the then care, of rd standa iapprox , problem t consen ed infor:m in the lawsuit_. If it were not .for: the ar. disappe would office our m s lawsmt the of rd one-thi mately To avoid inform ed consen t problems, the patient should be told: (1)
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ROSENTHAL: MALPRACTICE -
CAUSE AND ITS PREVENTION.
what his problem is, (2) what the recommended course of treatment is, (3) what alternative treatments are available, (4) what the benefits are of the recommended treatment, and (5) what the risks are associated with this treatment. Of course, the most important element of the informed consent conference are the risks. Any· physician can present to his patient a litany of horrors in the informed consent conference; this is not expected or required, however. The patient may be informed of insignificant risks, such as transient pain of the arm, if those results are likely to occur. The patient should also be informed of the major risks, such as death, (even though the chances of occurrence are remote) if the knowledge of these risks may make a difference in the patient's decision making process. Last, the individual patient should be taken into account; for instance, while a change of voice as the result of an operation of the larynx may be inconsequential to most people, it may be devastating to the career of an entertainer. The court clearly rejects the following rationale sometimes offered by doctors: "If a patient knew of the risks of this procedure, then the patient would reject the procedure. The rejection of the procedure would not be in the patient's best interest. Therefore, the patient would be better off if he did not know the risks as he would then undergo the procedure." This attitude is viewed by the courts as both paternalistic and condescending and as ignoring the right of the patient to control his own body, Any physician who relys on this rationale, no matter how well intended, is treading on thin ice. If the physician feels, however, that the mere informing of the patient of risks may cause adverse consequences to the patient, (i.e., in cardiac care patients) then the consent should be obtained from the next closest relative. The fact that the patient was not told the risks himself should be clearly documented in the record with the reason why the patient was not explained the risks. This is a rare situation and is certainly the exception and not the rule. The mere informing of the patient of the risks involved in a certain procedure is not enough. The informed consent must be documented in the chart. Most informed consent cases end up in a swearing match between the physician and the patient in the courtroom as to what was said in the informed consent conference. The jury has the responsibility of listening to both sides and determining whom to believe. If there has not been a well-documented medical record with respect to informed consent, the result is an all-too-predictable scenerio: PLAINTIFF'S ATTORNEY: Doctor, can you tell the jury what you told Mrs. Plaintiff concerning the risks associated with the surgery you performed on her. DEFENDANT DOCTOR: I tell all my patients ... PLAINTIFF'S ATTORNEY: Doctor, I am not interested in what you tell all your patients; I only want to know what you told Mrs. Plaintiff about the surgery you performed on her on February 13, 1975. DEFENDANT DOCTOR: But I have performed five hundred similar operations since February 13, 1975, and there is no way I can remember what I told one particular patient. PLAINTIFF'S ATTORNEY: Okay, tell me who was present at this informed consent conference.
ROSENTH AL: MALPRACTICE -
CAUSE AND ITS PREVENTION.
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I know Mrs. Plaintif f was there, and I think Mr. not really sure; I don't remember. I'm but too, Plaintif f was DEFENDA NT DOCTOR:
ETC., ETC., ETC.
Plaintif f will then take the stand and state this is the only surgery she has ever undergone, this was a big day in her life, and that she will never that forget what transpir ed that particul ar day. Plaintif f will go on to state prothe with ed associat risks about said was nothing that positive is she cedure, and had she only known about these risks, she certainl y would not have undergo ne the surgery . The jury will then decide whom toitbelieve much and under the aforeme ntioned circumstances, the jury will find . plaintiff the with identify to easier Is Mrs. Plaintif f intenion ally lying? Possibly, but maybe not. In a rey 23, cent study reported in Medical World News, V:ol. 17 (4), Februarone to recorded was patients 20 of ce conferen consent d 1976 the informe patwo days prior to surgei:y. Four to six mo!1ths after surg~ry, these tients were asked what risks had been explamed to them pnor to surgery with and only 29 % of the pa~ients could give an accur~te response. Even was what recalled patients the of % 42 only 0n, suggest1 of e influenc the failed patients 20 all Finally, ce. covered in the informe d consent conferen pato rememb~r major parts of the inf?rme d consent con'f erence and twovery tients, for mstance , stated t~at the mforme d .consent conference was cursory, lasting only two mmutes or so, while the actual tape recordin g of the conference showed that it lasted more than 24 minutes. The reason for these patients ' inability to recall may be due to the emotional burden out that the patient was under at the time of the conference or blocking the that fact the merely just or hear to want not did of things the patient patient wasn't listening. What should the informe d consent note say? The note should include problem, the following bits of informa tion: ~ d~finition. ?f the ~atient's risks the and benefits spec1f1c its with together re procedu d the suggeste fact the' occurred it when ce, alternat ives, who was present at the conferen that the patient indicate s he understa nds what has been explained and the fact that the patient wishes to proceed. Finally, it should be noted that no assuranc es or guarant ees were given to the patient that the treatme nt will effectua te a cure. An example of a good informe ? consent note that appeare d the day before surgery in a chart of a patient who recently sued his neurosu rgeon is as follows : "Review of myelogram indicates an anterola teral mass intradural extrame dullary at T-11 on left most compatible with memingioma. I have discussed the risk and complications of lack of surgery as well as those of surgery , i.e., paralysi s of legs, loss of bladder function, rectal function, sexual function, blood clot, infection and anesthes ia. I have explained these to both the patient and his wife. They are fully aware of these. No assuranc es or guarant ees given. They wish us to proceed with surgery , laminectomy with explorat ion and tumor removal. Will proceed with operatio n." This is followed b~ a note th.at .the. Chief of Service concurs. It is signed and dated by ~he ~esident and it is signed by the Chief of Service with a 11 o.k. next to his signatur e.
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While this note is not perfect, if called upon to do so, this neurosurgery resident could accurately reconstruct for the jury what transpired in that informed consent conference between doctor and patient specifically as to what risks were explained to the patient. Such an informed consent note can be very effectively used in the courtroom. In a recent case we handled, an orolaryngologist was sued for allegedly damaging the chordatympani nerve of the plaintiff during a stapedectomy operation. Plaintiff's attorney searched nationwide to find an otolaryngologist to criticize the defendant physician's performance of the operation without success. Without an expert witness, the court dismissed the malpractice court of plaintiff's petition and all that was left of the lawsuit wa.s the informed consent issue. The plaintiff testified that the defendant physician did not warn her that following surgery she might have a metalic taste and that her hearing might not improve. The defendant physician reconstructed the presurgical conference with the aid of the informed consent note in the chart projected onto a screen in the courtroom for the jury to see. The doctor explained that the note was prepared simultaneously with his conference with the patient and explained the significance of all the numbers, diagrams, an.d symbols he had pla~ed on the note. Based on this testimony, it took the Jury less than ten mmutes to hand down a verdict for the defendant physician. Had it not been for his note in the chart, the result may well have been different. D. Conclusion. As attorneys for medical institutions, we frequently speak with groups of physicians and discuss how to avoid malpractice lawsuits. Generally, we receive a good response and the physicians we speak to are enthusiastic about doing what is necessary to solve this problem. However, because physicians are busy and old habits are easy to fall back into, it has been our experience that this enthusiasm may be short lived. As attorneys, we don't pretend to be competent to tell physicians how to conduct their medical practice. Our function is to make the physician aware of the potential legal problems that he faces and to encourage him to use this knowledge as a factor in his daily practice of medicine. Malpractice lawsuits are not prevented solely by practicing "defensive medicine." Positive steps can be taken by the physician with the investment of very little time or resources. It is important that the physician treat the patient as a partner in his attempt to solve the patient's problems. It must always be remembered that, although the patient is not sophisticated in his knowledge of medicine, he knows what hurts and he is very concerned about it. Time must be taken to discuss the patient's problems and answer his questions in order to help take some of the mystery out of his aches and pains. Before any treatment is rendered, the physician must make sure that the patient understands the risks associated with the treatment and what alternatives are available and this must be documented in the chart. The physician must always keep a complete medical record and he must stress the importance of keeping a good medical record with his support staff. The record must be written with the understanding that someday it may be read by the patient or his attorney. Finally, the physician must be aware of the warning signs of a medical malpractice case and be prepared to react thereto. All incidents should be documented by, at the very least, the physician making notes for his own
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ct the events sometime in the reco rd so that he will be able to reco nstru able, the physician should inavail sel futu re. If the physician has legal coun the warn ing sign s of a potential litiform such counsel immediately when have an oppo rtun ity to reac t to the gatio n appe ar so that the attor ney will tions of the prac tice of medicine situa tion. Last , the legal medical consideraici~ n should not. let th~ .law conmus t be kept in mind ever y d.ay. The phys the law m dec1s10n makider cons ld shou mly certa trol his prac tice, but he ing in his ever yday practice.
L BRA NCH . THE UNI VER SITY OF TEX AS MED ICA
ersit y of Texa s Medical The Con tinui ng Educ ation Division of the Univ Bran ch, Galveston, Tex. Mrs. NeK ee NcNulty, Assi stan t to Step hen R. Lewis, M.D., Dire ctor; Spec ial Proj ects Assi stant . er, the Dire ctor; and Ms. Daw n Cram Texas Academy of Fam ily All Prog rams are accredited thro ugh the Phys ician 's Recognition Awa rd. Phys ician s and Cate gory I, with the AMA the above people at the folFor furth er infor mati on, please cont act one of lowing addr ess: y of Texa s Medical Bran ch Con tinui ng Educ ation Division, Univ ersit 77550. Phon e: (713) 765~ Tex. John Sealy Hospital, 8th Floor, Galveston, 2934. PROGRAMS SCHEDULED FOR 1978. Room, 12-16 hour s. This prog ram Febr uary , 1978 -An esth esia : Recovery will be conducted on the UTMB Campus. ew, 48 hours, Galvez Hotel Febr uary 5-11, 1978 - Fam ily Prac tice Revi ' Galveston, Tex. be announced. Galvez Hotel March, 1978 - Geri atric s, hour s and fee to ' Galveston, Tex. ez Hotel, Galveston, Tex. Apri l 6-8, 1978 - Cardiology, 20 hour s, Galv s. Location to be announced. April, 1978 - Infec tious Disease II, 20 hour Canc er Symposium. Hou rs to be anSeptember, 1978 - 2nd Ann ual nounced. Location to be announced. ent semi nars held in Angleton Beau Date s and subj ects for golden cresc ' be announced soon. will Fall this City mon t and Clear Lake for local society 'm eetin gs thro ugh Facu !ty spea ke:s may be scheduledPlea se call at least one mon th 1•n a dour office by callm g (713) 765-2934. e. vanc
