Physician Bad Behavior

Nearly everyone within the healthcare arena knows a “difficult doctor”; that physician who  is abusive towards nurses and other staff, won’t admit patients to the hospital at the conclusion of a shift, or slacks off on paperwork. Negative physician behavior has been around for many years and is usually treated as a dirty secret.

Often times, the intimidation and poor communication from physicians is accepted because of the demand for physicians, but this behavior can result in serious safety issues that lead to medical errors, poor patient treatment and high staff turnover. The Joint Commission has issued a requirement for medical care organizations to have a policy in position to deal with bad behavior.

Some think the superior attitude displayed by some doctors has resulted in a culture of submissiveness. Over the last decade, health care advocates have fought to bring this issue to light and push back against this culture.

One of the major reasons for mistakes in hospitals is the state-of interaction between doctors and nurses. Oftentimes, nurses are doing their duty, reporting and documenting what's required, nevertheless the physician won't take action.

Have you have run into a physician with bad behavior? Tell us your experience!

Determining who is responsible in a medical malpractice lawsuit is essential to winning a case. Contact us to find out more about how medical malpractice lawsuits can be affected by physician behavior.

Lavern’s Law Could Impact Other States

Lavern Wilkinson, a 38 year-old mother of a severely autistic 15 year-old daughter went to the King’s County Hospital emergency room in February of 2010.  She was experiencing chest pain and the first year resident assigned to her case sent her for chest X-rays.  The resident then reported the results of those X-rays as normal.  She was sent home with Motrin for the supposed muscle spasms that were causing her pain.

But, the X-ray results were not normal. They showed a suspicious mass in the right lung that should have resulted in additional testing since it was cancerous. Over the following two years, Wilkinson returned to King's County Hospital several times due to continual cough and breathing problems. Doctors diagnosed her with asthma. More than two years after that first X-ray, in May 2012, doctors finally noticed that she had cancer. By this time, the cancer was untreatable and had spread to her spine, liver, and brain. She died May 7, 2013.

Currently in New York, a malpractice lawsuit must be filed within fifteen months of the malpractice, not within 15 months of the discovery of the malpractice. In Wilkinson's case, the statute of limitations had run out so she was unable to file a suit before the cancer was discovered.

The outcry over this appalling case has caused some politicians in New York to recognize the unfairness of the current statute of limitations law. "Lavern's Law" has been proposed in the state legislature to alter the statute of limitations to the discovery date. There's a real possibility this law will ultimately be passed after previous failures. The medical and insurance businesses have lobbied against this change saying it would be unaffordable. Other states without the date of discovery rule include Arkansas, Idaho, South Dakota, Minnesota, and Maine. The passage of this law may pave the way for change in these states too.

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Proctoring in Medicine and Associated Legal Risks

A proctor is somebody who supervises or monitors in an educational setting. In the practice of medicine, proctorship is somewhat more complicated. Comprehending the medical role of a proctor helps clarify the legal risk of proctoring.

In medicine, a proctor objectively evaluates the clinical competence of some other doctor. Proctors are utilized in hospitals to evaluate or to assess new and existing staff members that are requesting enlarged or new privileges.

The proctor does not provide patient care, but is only an onlooker. Thus, the proctor does not establish a physician-patient relationship and does not have any financial connection to the patient.

Since the proctor has no physician-patient relationship or a relationship with the doctor being proctored, the legal system is reluctant to hold proctors liable if performance falls below the standard of care. But in the event the physician shifts from a proctor into more of a preceptor job, she or he could be found liable.

A preceptor is very different from a proctor. Preceptorship serves an educational and training function, not a monitoring function. New skills can be taught by preceptors and they do develop a physician-patient relationship. A preceptor would hold the principal responsibility for a patient's care.

The line between observation and participating can be hard for a proctor. If a proctor volunteers to participate in a process, their function could then shift into that of a preceptor and can unknowingly produce a doctor-patient relationship. There is legal precedent for a preceptor being held liable for failing to intercede in a patient's care.

Proctoring is a standard method for credentialing physicians and surgeons, nevertheless, if they would like to avoid medical malpractice accountability, they must not participate in the decision making regarding the procedure or the procedure itself. Crossing that line can lead to medical malpractice risk. To learn more regarding the legal risks connected with proctoring contact us!

Patients Search the Internet For Health Info, But Is It Ethical For Physicians to Google Patients?

Patients regularly surf the internet for health care information, doctor reviews, and treatment choices, generally starting with Google. Nonetheless, is it ethical for physicians to Google their patients? Doctors and bioethicists are weighing if this sort of search is proper.

Jessica Pierce, bioethicist, says that doctors shouldn't Google their patients. An Internet search isn't an ethical method to gather information about a patient and a physician isn't likely to find anything clinically applicable, she writes in Psychology Today.

Others contend that Internet searches by physicians regarding a patient might be satisfactory in very limited circumstances.  Examples of possible satisfactory utilization of Internet searches include scenarios where the doctor has a duty to warn of possible injury, to see if a patient's story is credible, to see if another professional's advice raises questions about a patient's story, and if there are suspicions of abuse or concern about suicide risk.

One example the authors noted was an instance where the doctor discovered that a cancer patient misrepresented her family's cancer history and was increasing funds, maybe fraudulently, to attend a cancer convention.

A bioethicist at The Hastings Center, a bioethics institute, argues that these notions of what represents an appropriate search are too far reaching. She says that doctor intent is what matters most. Why is the physician moved to do this? Is it going to help the patient or is it just out of personal curiosity?

The American Medical Association has new guidelines involving physician use of social media, nevertheless, those guidelines do not adequately cover this issue of a physician's Internet research on patients. The AMA admits this is an unresolved issue within the organization. The AMA's chair on the Council of Judicial and Ethical Affairs, Patrick McCormick, wrote in a blog post that physicians have a fundamental obligation to honor a patient's privacy and that professionalism and physician ethos extend to social networking.

Standards and guidelines involving a physician's use of the Web and social media are complex and still in development. To learn more,contact us.

The Case of the Accidental Recording

A decision in late June by a Virginia jury represents a sad and stunning display of doctors behaving badly.

A Virginia lawyer went to a gastroenterologist for a colonoscopy. After chatting with anesthesiologist, Dr. Tiffany Ingham, he readied his smartphone to record the post-op directions so he wouldn’t miss anything. He then inadvertently struck the record option before the process started and recorded the whole colonoscopy.

On his drive home, he played the recording and was stunned by the crass dialogue about his body parts and a line of insults toward him specifically by Dr. Ingham.

The patient filed a lawsuit against the physicians and their practices for medical malpractice, defamation, and punitive damages, even though the procedure went well.

The defense suggested the recording itself was not legal, yet in Virginia only 1 party must consent to recording of a conversation. The recording was entered into evidence and showed that Dr. Ingham talked about the patient’s sexuality, threatened to punch him in the face during the procedure, wondered if he had a sexually transmitted disease, and called him a “wimp” and other names.  

Dr. Ingham was found liable and the patient received $500,000 in damages. She has since moved to Florida and continues to practice there.

Doctors should be reminded to always appropriately discuss their patients, particularly in today’s developing technology age. A few inappropriate words can be quite harmful.

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The Changing Views on Customary Practice vs. Evidence Based Medicine in the Courts

In the courts, customary practice often is used as the standard for testimony. Nevertheless legal experts are beginning to see a shift in the balance toward evidence based medicine. Evidence based medicine uses evidence from medical research to optimize decision making.

The courts traditionally have focused on doctors' customary practice, however that is inherently subjective. Customary practice uses what "most doctors in the local geographic area or specialty usually do".

Customary practice can be very subjective and variable. For instance, forensic experts use their anecdotal and personal experience as a basis for their testimony on causation. These experience-based opinions are more subjective and are the reason experts often hold differing views on causation in a given case.

Evidence based medicine, on the other hand, uses objective analysis rather than subjective interpretation. Evidence based medicine implements the extensive utilization of the best current medical evidence, in making treatment decisions for patients. This entails using the most clinically applicable research and diagnostic testing.

One challenge of evidence based medicine is deciding what kind of evidence is admissible in court. One Supreme Court case, Daubert v. Merrell Dow, determined a trial judge as the one who pre-screens scientific evidence and decides which evidence to admit that will inform the jury. Such decisions could be beyond the skill and training of judges. In addition, clinical practice guidelines may not be available or may not be uniform.

The courts are more likely to embrace these standards if evidence based medicine is used by doctors in their own practices. And court acknowledgement of evidence based medicine and scientific standards will make physicians much more likely to embrace such standards to lessen their liability risk.

To find out more on the subject of evidence-based medicine, contact us!

How Mid-Level Providers Raise a Physician's Malpractice Risk Through Vicarious Liability

Nurse practitioners and physician assistants, considered midlevel practitioners or physician extenders, are very common in many physician practices. Midlevel providers supply many benefits for the doctor practice including: allowing a practice to serve more patients while also giving those patients more individual focus; they can be paid less than medical doctors; and lastly, they can be easier to get an appointment with since primary care physicians are retiring at an amazing rate in part due to increased government regulations and lack of compensation.

Midlevel providers can increase malpractice risks, however. Nurse practitioners and physician assistants work under the supervision of a medical doctor. Those physicians may be held responsible for their actions and for not adequately supervising the treatment they provide.

Vicarious liability is the legal term for extending liability through a connection with another party. Under this particular concept, a person who does not cause injury can be held liable through the relationship to the individual who did cause the injury.

Courts have ruled that the midlevel is an agent of the physician and can be held vicariously liable for negligence, even if the physician never saw the patient. Physicians often don't recognize the level of supervision needed to keep the liability risk low. Medscape does admit that the number of cases involving midlevel professionals is expected to grow given their increasing numbers in medical practices.

However, the American Academy of Physician Assistants sites numerous studies that show midlevel professionals are much less likely than physicians to be named in a malpractice suit. When they are sued, settlements and the awards are smaller than in cases involving doctors. The American Academy of Orthopedic Surgeons notes that many cases involving midlevel professionals also name the supervising doctor. Settlements that don't involve the physician are uncommon.

Physicians can minimize their liability risk by taking preventative measures:

• Thorough Review when Hiring. In the event the doctor knows or has reason to know the the midlevel is incompetent or unfit, he/she can be found negligent.
• Clear Definition of Scope of Work. Physicians must be specific regarding the estimated obligations and obligations of the midlevel to avoid potential errors. 
• Collaborative Communication. Midlevels ought to be made to feel comfortable coming to the physician with any issues or difficulties and should maintain a collaborative relationship.
• Communication with Patients. Patients should know they are seeing a midlevel professional and not a doctor. 

Vicarious liability suits are anticipated to continue to climb since midlevel practitioners are the future in outpatient medicine and primary care.

To find out more regarding the legal risks associated with midlevel professionals and the best way to minimize them, contact us!