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How should physicians respond if requested to do something that increases risk? Don’t treat the request as a “take it or leave it” proposition. The choice is not merely to (1) refuse, or (2) acquiesce, with grave misgivings. Rather, this type of request is better viewed as an invitation to negotiate. Based on real events and situations reported by CAP member physicians, this article will illustrate circumstances in which physicians had to negotiate a fair resolution. In the end, we will propose practical ways for physicians to avoid or minimize the risk of litigation, working within the system.
SCENARIO NO. 1
Several years ago, staff pediatricians gave up
privileges to attend births when the hospital hired
neonatologists to care for newborns in the delivery
room. But as births increased, there became too
few neonatologists to attend all the births
occurring at the same time. On these occasions,
pediatricians on-call for the ER were informed
that they were expected to back-up in-house
neonatologists . The hospital neither restored the
pediatricians’ privileges, nor offered to sponsor
clinical skills update classes. Naturally, on-call
pediatricians were reluctant to offer delivery room
care, lacking recent clinical experience.
Pediatricians requested CME updates in newborn
delivery room care so their privileges could be
restored.
Deficient Clinical Skills & Hospital Privileges
SCENARIO NO. 2
Vascular surgeons are concerned because hospital
nurses threaten to go on strike. In an emergency,
will only registry OR nurses be available? Registry
nurses would be relatively unfamiliar with a
surgeon’s routine, his preferred instruments and the
hospital layout. Hospitals cannot simply shut down
because of a strike, but patient safety requires
trained, experienced OR
nurses. In this situation,
surgeons could lobby
hospital administration for
specific qualifications in
surgical training and
experience for the temporary
registry nurses. Advance
planning could help develop
surgeon-specific,
customized instrument trays
and standing pre-operative
orders for emergency
surgeries that may be
necessary during a strike.Labor Dispute & Work Stoppage
SCENARIO NO. 3
The hospital has instituted a prospective open-heart
surgery patient review, to be done by the
Cardiology Committee. What if the Committee
decides that a patient is not a good surgical
candidate, and recommends referral to a high-risk,
cardiac surgery hospital? Cardiac surgeons,
lacking staff privileges at the high-risk hospital,
are concerned about increasing their potential
liability. If the cardiac surgeon documents a need
for open-heart surgery, but is precluded by the
hospital’s Committee from performing the
surgery, are risks increased? Clearly,
collaboration between attending physicians,
surgeons and the hospital is optimal in this
scenario. Helping the patient understand how his
or her physicians may differ in medical judgment,
as part of the informed consent dialogue, will tend
to decrease the risk for all.
Prospective Review & Increased Risk
KEY ELEMENTS TO CONSIDER Physicians should know what the hospital’s Medical Staff bylaws require. When disagreements arise, check to see if the bylaws address the issue. For example, hospital bylaws typically prohibit physicians who lack recent clinical experience (and/or the specific hospital clinical privileges) from participating in that type of care. Bylaws also set forth the requirements for ER call. Negotiate from the Perspective of Patient Care and Safety If patient care may be compromised or endangered because of any of the above, the physician may have a legal responsibility to speak up. For example: Is there a question of meeting the standard of care (e.g., missed diagnosis)? Or, is there a question about adequacy of staff or their competency? Follow the Chain of Command Follow the logical chain of command when patient care or safety may be at risk. In a hospital, this would usually be:
Enlist the Aid of Hospital Administrative Personnel Hospital administrative personnel who may also be helpful include: (1) the Director of Nursing, (2) the hospital Risk Manager and (3) the Director of Performance Improvement and/or Peer Review. These individuals view themselves as patient advocates and will be interested in issues related to patient care and safety. As full-time staff, they can devote more time to resolving the issue, as compared to a staff physician. Complain Effectively When there is a potential that patient care and/or safety may be compromised, the physician should clearly define the situation or issues. Avoid vague criticisms. For example:
DON’T: “My patients never get the follow-up I’ve ordered.”
DON’T: “If I get sued over this, the hospital better pay my claim!”
DON’T: “It’s Radiology’s responsibility, I’m not going to do it.”
Good physician-hospital relationships require work! Physicians with good negotiation skills will find them valuable.
Members with further questions may call the CAP HOTLINE at (800) 252-0555 or CAP Risk Management at (800) 252-7706.
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