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The Ten Commandments
of Risk Management
By David S. Rubsamen, M.D., LL.B*
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The great majority of medical malpractice cases reflect fact
situations that are repetitive. The restlessness of the anesthetized
patient is interpreted as a reaction to light anesthesia rather
than a response to hypoxemia; the feverish and listless infant
with a poor suck is treated in a routine manner and the diagnosis
of meningitis is not considered; the 32-year-old male with chest
pain that is typical for an impending infarction is treated for
muscle strain because he is "too young" to have a heart attack,
etc., etc. Just as these specific errors keep turning up, there
are broad generalizations which encompass a large fraction of
the settlements or adverse verdicts which physicians experience
each year.
ONE: Don't alter records. Altered records constitute
such a vexatious problem for defense attorneys, it would be appropriate
to make this the first five commandments. Consider the case of
a family physician who saw a 3-year-old child at 5 p.m. on a Friday.
The child had a low-grade fever and had been fussy all day. According
to the mother, the doctor's examination was cursory. The patient
was sent home. The mother was told to telephone if the child got
worse. At 2 a.m., the patient could not be roused, and the mother
rushed her to the hospital where a pneumococcal meningitis was
identified. There was severe residual brain damage. The doctor
learned of the patient's hospitalization the following morning.
He immediately went to his office and obtained the child's chart.
In the record he wrote just eight words, filling in three lines
which had not gone to the edge of the page. He indicated, "retinas
OK, neck supple, child is quite alert." These emendations were
so obvious, it is difficult to think the doctor was trying to
fool anyone. But the mere fact of the changes raised the question
of deceit motivated by a guilty conscience. This was enough to
dictate a million-dollar settlement. This occurred in a conservative
venue, and it is quite likely the doctor would have prevailed
if he had gone to trail, but for the record alteration.
Sometimes the record alteration consists of a lost page. This
is about as bad as a written alteration, because it implies the
page contained something adverse to the defense.
TWO: Keep good records. Every mistake is not actionable.
The standard of care is not perfection, it is merely living up
to a quality of practice which is represented by other competent
physicians. With this in mind, consider the value of an excellent
record by a caring doctor.
The patient was a 16-year-old high school girl whose family
had been going to the same internist for 20 years. The mother
brought her daughter to the doctor at 1 p.m. on a Tuesday afternoon.
The girl had been sick since the previous day with fever and malaise.
The internist's history and physical examination were detailed.
The patient's temperature was 102. The doctor specifically noted
the neck was supple and Kernig's sign was negative. A white blood
cell count was 9000, with 76 percent PMNs and 4 percent band forms.
He sent the patient home with a diagnosis of viral infection.
At 5 p.m. he phoned the mother to ask how her daughter was. He
was told she was about the same and was resting.
At 10 p.m. she fell out of bed, and the family found her unconscious.
She was immediately taken to a local community hospital, where
the emergency medicine physician made the diagnosis of meningococcal
meningitis, but delayed two hours before treatment was initiated.
Disseminated intravascular coagulation was a complication. The
outcome was amputation of both feet and the tips of several fingers.
The lawsuit proceeded only against the hospital, and the
case was settled for $1 million.
Why wasn't the internist sued? I asked this question of the plaintiff's
attorney, and he told me his medical reviewers were somewhat critical
of the failure to investigate further after identifying the granulocytosis,
but the detailed examination, and the fact the doctor called later
that day, caused the attorney to omit him from the lawsuit.
THREE: When a complication occurs, don't continue in a routine
manner. The classical situation concerns the anesthetized
patient who experiences a cardiac arrest during anesthesia induction.
Resuscitation is successful, then the anesthesiologist and surgeon
decide there was no significant injury and the procedure continues
as though nothing adverse had happened. There is no consultation
with a neurologist, so the hypoxic brain damage experienced by
the patient is not identified until he fails to awaken postoperatively.
Thus, the opportunity for immediate treatment of the brain injury
is lost. I have seen this reluctance to recognize possible error
replicated in a variety of fact situations.
FOUR: The inexperienced nurse must not be given an isolated
post. When the recent nursing graduate is given the graveyard
shift, because this is the least desirable duty, the stage is
set for a disaster. A particularly poignant example concerns a
nurse who had received her RN two months earlier. At 3 a.m. on
her first night of duty on the pediatric ward, she was the only
R.N. She sought to suction the tracheostomy tube of an unconscious
5-year-old who was on a respirator. It was unclear just how the
problem developed, but there was little doubt that the nurse's
unfamiliarity with the equipment resulted in a cardiac arrest
and death of the patient. Subsequently, the nurse abandoned her
career.
FIVE: Establish a rigid protocol for processing laboratory
results. For example, when a PSA value of 8 is lost to follow-up
because a laboratory slip is placed in a patient's chart without
the doctor reviewing it, the defense will be at a loss. Or perhaps
the laboratory does not telephone the emergency medicine physician
about a panic value, and critical treatment of the patient is
delayed for a couple of hours. It is essential that every hospital
and medical office establish an inflexible routine for communicating
and reviewing all laboratory results.
SIX: Look at the record of the prior visit. This is especially
critical where another physician has previously evaluated the
patient. For example, there was the patient with retrocecal appendicitis
who saw five different physicians at an HMO in the course of four
visits on successive days. Each visit was at night, and no physician
had the record of the previous visits to review. This was the
reason for the failure in diagnosis and the patient's death.
SEVEN: Don't hesitate to refer a difficult case. My greatest
concern about the managed care trend is that the specialist will
not be consulted in a timely manner. Every plaintiff's malpractice
attorney who has commented on the issue emphasizes that capitation
plus a delay in referral equals an excellent malpractice case
from the plaintiff's standpoint.
Whether or not the doctor's motive was an economic one, the plaintiff's
attorney will probably be able to make it seem that way. Thus,
from a strictly legal point of view, when managed care is combined
with capitation there should be a heightened awareness of the
need for timely referral.
EIGHT: The house staff requires appropriate supervision.
This is particularly true for the intern or first-year resident.
When a jury is convinced that an unsupervised trainee has exceeded
the scope of his skills, an adverse treatment outcome will almost
certainly be blamed on the failure of supervision.
NINE: Record your telephone conversations. Once the lawsuit
is filed, the patient's memory can become highly selective. Even
a brief notation about what the patient said and what the doctor
advised can be of great help to the defense. When the doctor expands
on his note, telling the jury in greater detail what was said
on the telephone, his testimony will then be much more believable
compared to a recollection unsupported by any note.
TEN: Carry adequate malpractice insurance. This admonition
requires some emphasis. It is true that occasionally the plaintiff's
attorney will not sue the uninsured doctor, because his case against
insured co-defendants is fairly strong. Therefore, even though
the uninsured physician might normally be the target defendant,
the attorney may choose not to run the risk that this doctor might
be hit with 100 percent of the verdict. But where the doctor is
the only prospective defendant, he will very likely be sued if
he has any assets.
For example, there was the case of an obstetrician who hospitalized
a 21-year-old primipara at 35 weeks of gestation. She had moderate
toxemia, and shortly after hospitalization the fetal heart rate
dropped to 80. The doctor delayed an hour and a half before accomplishing
a Cesarian section, and the outcome was marked brain damage. While
the doctor had considerable assets, he refused to settle the case.
The jury's verdict was $3.9 million. The doctor had been uninsured
for the previous 20 years, and he explained that he didn't choose
to obtain insurance because his hospital did not require this
of the medical staff.
*Reprinted with permission from the July 1996 Edition (Vol. 26,
No. 6) of Professional Liability Newsletter (PLN) Hercules, CA
94547, *David S. Rubsamen, M.D., L.L.B., Editor
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