Medical/Legal Issues

[dm123]

I was able to shoe horn my way into a CME meeting, principally designed and attended by graduating Residents. Initially figured it would be a somewhat boring two days of easy CMEs. Wrong!! Had a pre-test and post-test. The meeting was hands down one of the best events I've ever attended. We had to give a pretend deposition in front of a real plaintiff's attorney with the defense attorney at our side.

 

One issue of interest was if a PA feels they may have screwed up was that from a law perspective we report ASAP to the legal department of the hospital or the legal department of our malpractice insurance company, NOT our supervising physician. These flies in the face of my gut feelings and everything I've been taught. Plaintiff's attorney's have virtually unlimited subpoena power. Friends, co-workers, coleagues, even the PA's own medical doctor can be called and not in violation of HIPPA. Text messages, e-mails can be obtained. Only spouses are exempt.

 

The lead attorney from the medical center called to double check the Doctor/PA relationship. From around the corner in private she told me, and she was a JD/MD, what she would do would be to have a word in private with my supervising physician with no one else present, maybe describing it as a 'what if' scenario to keep him out of any purgery issues.

 

There was much more presented. The State Board of Medical Examiners had two representatives present, an accountant, malpractice insurance rep and an OB-GYN from Pennsylvania. I deduced lawsuits are in vogue there for OB. He said most all the Residents have at least one suit by the time they finish Residency.

 

On OB, the statute of limitations for kids doesn't expire until they are 18. Get that tail coverage.

 

If you have a chance to attend such an event, it would be well worth your time.

[Firemedic13]

Very interesting. I had heard that OB docs are paying up the wahoo for malpractice insurance, so that part didn't surprise me.

 

Actually, it makes sense to talk to legal first... your conversations with your lawyer are protected by law. You conversations with your supervisors are not.

[rcdavis]

There is NO WAY. I would report a potential negative interaction or threat of suit from a PT to the legal department and mal practice insurer without having discussed it with my SP.

 

Ultimately he has to answer along with me for my actions or inactions.

 

Then the TWO of us approach the hospital and insurer risk management personnel and report what we know, and start the process.

 

( making extemporaneous notes for our own records on advise on counsel, turning over future car e of the patient to other practitioners, etc).

 

Generally the insurers and risk management folks will give your specific instructions as to what to say or not, to write in the record or not, etc.

 

But there is no way that I am going to go to them without my SP being cogent of the situation.

 

Can you imagine the conversation otherwise?

 

SP: hey man, I just got a call from RM about a patient that you saw who feels you did incorrect repair of a wound dehiscence.

 

Me: yeah, I called them and the group and my insurer when she told me she was gonna sue

 

SP: WTF? When did this happen? And why didn't you tell me? I don't like being ambushed like this.. And expected you to tell me of things like this... Wait a minute.. In our practice agreement, I have instructed you to tell me about such situations ASAP so that I could become knowlegable about the case and possibly help defuse the situation

 

I will bet that this situation only happens ONCE with my SP.

 

My advice to us all is to keep your SP aware and quickly involved in any potentially negative patient interactions.

 

Risk management will eventually close the case one way or another, but you hopefully want your relationship with your SP to persist.

[Firemedic13]

Interesting point rcdavis. You probably do have a duty to report incidents to your SP.

 

On the other hand, let's do a little hypothetical: You screw up, figure out that it was a rare complication that you didn't check for in advance. But then again, probably nobody would've expected it to go wrong the way it did. So you go to your SP and you are feeling bad for the patient, right? And even though no PA in your position would've done anything different from you... you are now blessed with hindsight and say "Oh, I should've done x, y, or z instead." Which is true, to a degree. But now your SP will be required to admit that in court if asked... they'll have to say "yes, PA such-and-such did admit they should've done x or y instead" and it will blow your defense out of the water. Not because you did the wrong thing, but because you were feeling guilty and trying to figure out a way not to make the same mistake again.

 

This is kind of a touchy area, given the position PAs are in. I'll have to do some research on this next year. But it seems to me like you guys are in a bad position re: malpractice claims for a lot of reasons, this being one of them.

[marilynpac]

Interesting point rcdavis. You probably do have a duty to report incidents to your SP.

 

On the other hand, let's do a little hypothetical: You screw up, figure out that it was a rare complication that you didn't check for in advance. But then again, probably nobody would've expected it to go wrong the way it did. So you go to your SP and you are feeling bad for the patient, right? And even though no PA in your position would've done anything different from you... you are now blessed with hindsight and say "Oh, I should've done x, y, or z instead." Which is true, to a degree. But now your SP will be required to admit that in court if asked... they'll have to say "yes, PA such-and-such did admit they should've done x or y instead" and it will blow your defense out of the water. Not because you did the wrong thing, but because you were feeling guilty and trying to figure out a way not to make the same mistake again.

 

This is kind of a touchy area, given the position PAs are in. I'll have to do some research on this next year. But it seems to me like you guys are in a bad position re: malpractice claims for a lot of reasons, this being one of them.

 

Wow, anything you say can and will be used against you in a court of law...

[Firemedic13]

Wow, anything you say can and will be used against you in a court of law...

 

Personal Injury attorneys (who, despite everything do actually provide a valuable service... just not in this case) will take a deposition from you and your SP. In the deposition they will ask an SP if you admitted there was something you would've done different. The SP is required to answer or face perjury charges. So an SP will say something like "No one could've predicted that. While PA so-and-so admits they should've done x or y, those just aren't realistic for a patient presenting the way this one did. It would've cost extra money, and wasted time 999,999 times out of a million. I would've done the same thing. There were no signs of any kind this would occur."

 

Then the PI attorney will go over the deposition and, in front of a jury of high school dropouts, ask the following carefully worded question "Did PA so-and-so admit they should've done something different? Yes or No?" The SP will try to give the full answer and be cut off... "I said Yes or No?"... any answer other than "yes" or "no" will result in that testimony being struck. So the SP will have to answer "yes"... and BINGO the plaintiff is given a 3 million dollar judgement if the insurance company doesn't just settle first and raise the SP's rates.

 

 

EDITED TO ADD: this is just my opinion based off experiences I and others I know have had dealing with similar situations, and not the definitive and carefully measured advice of an actual attorney, nor is it meant to be interpreted that way in any shape or form. kthnxbai.

[COTA for now]

And if they big bad lawyers ask you if you consulted with your SP, and you didn't, how is that supposed to sound good? What RC said may not be the best choice in a CYA sense, it removes trust in the SP, and seems to be the less ethical way to proceed.

[Firemedic13]

Good point COTA. Like I said, you guys are in a weird position. This might make a very interesting area to study for an LLM... anyways...

 

I was assuming for that hypo, however, that this was a situation in which the procedure/dx was already done without consulting the SP in advance... as opposed to one in which you had already consulted with the SP. If you already had then a) the SP is aware, and b) the SP shares the liability with you.

[andersenpa]

Personal Injury attorneys (who, despite everything do actually provide a valuable service...

 

Still looking for evidence that this is true....

[dm123]

Firemedic 13,

 

What you posted is what we were told at the conference. Another lawyer tactic is to ask you the same question a different times during the deposition and in court if it goes that far fishing for a different answer. This is when you have to depend on your defense attorney to help out.

 

Whether or not you discussed openly with your supervising physician, I'm guessing, would be immaterial in a malpractice case. I would suspect it would be to their legal benefit not to know. The PA/supervising position from a legal prospective should probably discussed in advance so both PA & Physician are on the same page in case Murphy raises his head with input from legal council from the state in which you practice. Each state could be different. As I mentioned, our State Board of Medical Examiners had two representatives present. The PA/Physician roll in such a case would be a good topic to bounce off the State Medical Board as well.

 

An example of a type of suite used at this conference was when a surgical towel, not a sponge somehow found it's way and was sewn up inside the patient's abdomen. Big, heavy people can hide a lot of stuff in there. Anyway, the surgeon blamed the scrub nurses, the scrub nurses said it was not hospital policy to count towels and it was the surgeon's fault for using a towel instead of a sponge. The sponge count was correct. There are also no radiographic strips on towels like sponges. This was settled out of court. Murphy can bite anyone.

 

In my state, since John Edwards was awarded $23,000,000.00 in a malpractice case, defendant's attorneys are not so quick to settle. It has resulted in lower insurance rates an not as many frivolous lawsuits. The Plaintiff's attorney is not so quick to anti-up the funds for expert witnesses, private researchers and the like on a contingency if he know's he must have a strong case.

 

What was such a shocker was the subpoena power of the Plaintiff. They said that if the defendant saw a Psychiatrist for his on benefit in coping with a mistake, those records could be subpoenaed as well, over riding HIPPA. This was not just the JD/MD's opinion but the other attorneys present as well.

 

There were a lot of ashen faces in the room after this discussion.

 

Concerning towels, I got a major butt chewing from a surgeon I worked with. In school, the surgeon used towel clips (looks like a pair of hemostats with claws like an eagle) to clamp the towel to the skin. Looking back, it created an unnecessary wound but it probably wouldn't end up inside the patient.

 

Another point, PA's are judged against PAs, nurses against nurses, and doctors against doctors as far as what is considered standard and acceptable practice. We are not judged as to what a physician would do. This statement raised more issues in my mind but since it was mostly a physician gig, I had spoke up enough.

 

 

Personal Injury attorneys (who, despite everything do actually provide a valuable service... just not in this case) will take a deposition from you and your SP. In the deposition they will ask an SP if you admitted there was something you would've done different. The SP is required to answer or face perjury charges. So an SP will say something like "No one could've predicted that. While PA so-and-so admits they should've done x or y, those just aren't realistic for a patient presenting the way this one did. It would've cost extra money, and wasted time 999,999 times out of a million. I would've done the same thing. There were no signs of any kind this would occur."

 

Then the PI attorney will go over the deposition and, in front of a jury of high school dropouts, ask the following carefully worded question "Did PA so-and-so admit they should've done something different? Yes or No?" The SP will try to give the full answer and be cut off... "I said Yes or No?"... any answer other than "yes" or "no" will result in that testimony being struck. So the SP will have to answer "yes"... and BINGO the plaintiff is given a 3 million dollar judgement if the insurance company doesn't just settle first and raise the SP's rates.

 

 

EDITED TO ADD: this is just my opinion based off experiences I and others I know have had dealing with similar situations, and not the definitive and carefully measured advice of an actual attorney, nor is it meant to be interpreted that way in any shape or form. kthnxbai.

[Beorp]

Another point, PA's are judged against PAs, nurses against nurses, and doctors against doctors as far as what is considered standard and acceptable practice. We are not judged as to what a physician would do. This statement raised more issues in my mind but since it was mostly a physician gig, I had spoke up enough.

 

I don't quite understand that statement. Shouldn't PAs be held to the same standard of care as physicians?

[rcdavis]

I don't quite understand that statement. Shouldn't PAs be held to the same standard of care as physicians?

 

Now THAT THERE is an interesting question. the school I trained at trained us that, " if we were not able to perform on the same level as a general practice physiciN, we should not be doing the ...( whatever)...

 

But, apparently the eyes of the law judge us against what a reasonable well trained and adequate PA would do in a similar circumstance ( eg, "would any well trained, certified, and practicing PA have recognized the ST changes in this EKG that show an acute MI.?"... Would most Well trained certified PAs reconize that accutane is contraindicated in pregnancy ( were accutane available??). In other words, what the PA COMMUNITY STANDARDS ARE.. NOT THE PHYSICIANS.

 

before we all get to upset about that statement, it is instructive to realize that the PA standards and the Physician standards are usually one in the same.

 

To get back to the op discussion, however, I still disagree about the premise that we should be speaking with the lawyer before we speak to our SP. The premise that we MAY say gee I wish I'd done it that way rather than the way I did ( based on the outcome) is not an admission of guilt or culpability.. It is a simple reconition that we wished the outcome had not occurred, and that maybe another approach could have changed the outcome..

 

It does not imply that the act itself CAUSED the outcome...

 

Unless the act did cause the outcome, and the act was negligent ( "the family told me she was allergic to penicillin.. And the record noted that she was allergic to penicillin... I shoulda listened), I fail to see how discussing the vase with your SP can be at all exposing you to litagative exposure.. After all, I guess you could create that conversation as a m&m case and get it protected as peer review.

 

Jesus.

 

Davis

[ventana]

I would say talk to your SP if a legit threat came in (how many "I am gonna sue you" do you get that you know are BS to get opiates)

 

I like the idea of "hypothetical" but unsure it would hold up

 

 

Treat the SP discussion like you were talking to an attorney I guess??

 

 

Then go see legal

 

 

I worked with a CRAZY new doc in an interventional pain clinic (I last 10m she then get terminated about 15m after I left) that was in the legal office more then the exam room - never a good sign

[rev ronin]

1) There's no such thing as HIPPA. HIPAA, on the other hand... Not that I'd normally nitpick this, but when you're discussing the nuances of laws, it's always best to actually get their acronyms right.

 

2) If this is in fact a real risk, I see a new type "risk review" meeting coming: PA, SP, and lawyer. That keeps the SP in the loop, while maintaining attorney-client privilege. I've been in enough meetings that included a bored lawyer, or seen enough email threads that included a non-participating attorney on the to: line, in my corporate life to anticipate this as a predictable next step.

[Firemedic13]

 

2) If this is in fact a real risk, I see a new type "risk review" meeting coming: PA, SP, and lawyer. That keeps the SP in the loop, while maintaining attorney-client privilege. I've been in enough meetings that included a bored lawyer, or seen enough email threads that included a non-participating attorney on the to: line, in my corporate life to anticipate this as a predictable next step.

 

This is actually a really good idea. I wish I had thought of it. I think privilege does extend in this situation. Check and make sure, but this might be TCR. Though, if they were suing both of you (the PA and the SP) then the SP will need their own representative there too.

[rcdavis]

Wait a minute.. Does not privilege extend to peer review discussions ?

[Firemedic13]

Wait a minute.. Does not privilege extend to peer review discussions ?

 

It appears it does. Different states appear to have different rules on the issue, but it looks to me like most (if not all) extend it to peer review committees, their discussions, paperwork, tests, etc... basically everything but their final findings. Also it looks like for licensing purposes confidentiality may be waived (Ie. you are awful, have killed 400 people while practicing, and shouldn't be allowed to touch a ball point pen, much less a syringe) just long enough for the licensing board to look at their findings.

 

However, Many states seem to require that you have a well set up peer review committee primary concerned with M&M issues... in advance.

 

In that case simply sitting down with your SP and calling it a "peer review" meeting could backfire on you. Especially since if you discuss potential litigation during your "peer review" process you might negate privilege (if you even had it in the first place)/

 

I would consult your attorney or legal department. :D

 

Also, it may be possible for conversations with your malpractice insurance company to be covered under attorney-client privilege. So you might want to look into that.

[dm123]

1) There's no such thing as HIPPA. HIPAA, on the other hand... Not that I'd normally nitpick this, but when you're discussing the nuances of laws, it's always best to actually get their acronyms right.

 

Yep, You got me on the HIPAA thing. Acronyms are my huckleberry.

 

 

2) If this is in fact a real risk, I see a new type "risk review" meeting coming: PA, SP, and lawyer. That keeps the SP in the loop, while maintaining attorney-client privilege. I've been in enough meetings that included a bored lawyer, or seen enough email threads that included a non-participating attorney on the to: line, in my corporate life to anticipate this as a predictable next step.

 

Sounds appropriate to me as well. I still think it would be appropriate to bring the "what if" question up to your SP before an event occurs.

 

As far as the penicillin analogy is concerned, it is my understanding you do not have to do anything wrong to be involved in a civil suit. What if, when the check-in person or aide ask if the patient had any known allergies and the patient thought the aide was referring to ragweed or the mangy dog next door. Maybe the patient is hard of hearing and coughed during the question. Many little old ladies don't like to admit their infirmities (deafness). You see the patient, NKA or NKDA is on the chart, and you give penicillin. The patient has an anaphylaxis and ends up in ICU. Ultimately, the patient says the "doc" ( it seems all LOLadies think every guy in a white coat is a doctor and hasn't yet grasped what a PA is all about), didn't ask me if I was allergic to Penicillin and I wasn't sure what the shot or little green pill was. Months, years pass. The Plaintiff attorney asks you "did you ask the patient if she was allergic to penicillin before Rx her?" Assume you say no. Most PAs would but everyone has those days. Maybe it isn't penicillin you give but a Cephalosporin. I've never personally heard of people allergic to penicillin having a reaction with Keflex or the like but supposedly 5-10% of patients are cross sensitive. A lot of it is give to people with a reported allergic reaction (many of who I doubt as it probably was an Ampicillin rash. Murphy comes out to bite. This is oversimplied but the event with the towel is evidence crazy stuff happens.

 

Generally, the Plaintiff's attorney use a shotgun approach suing everyone including the lint bunnies in the blankets. After much anxiety to the defendants, they are set free if there is no financial gain to keep them involved. Sorry Firemedic13, I just had to get that in.

[Firemedic13]

No worries. I am aware of the kind of people I will be joining. And, to be fair, a lot of times they name everyone so they have a better chance of figuring out who is really responsible at discovery. It is just a shame that so many innocent people end up stressed out beyond belief during the process.