For exampre, a surgeon is consulted to place a centrar line. Hc rs very rude and arrogant and speaks harshly to the patient. The patient signs conser.rt alter being informed of the conplications and alternatives in manng.i.n,. o pn"uroorl.,oru" occurs and thc paticnt is infuriated that this ,high_hand"ed bastard,hurt hirn. He files suit against the surgeon for malpractice. Wl;1 will be the most likely outcome ofthc suit?
In the same_ way that being pleasant does not absolve you of liability, being harsh and unpleasant do not equal rnalpracticc. A pneumothorax il; nn n…^innut complication ofcentral line placement. The patient was fully informed of this and still agreed to the proce-durc. There has not automaticaliy becn wrongdolDg in this cas
Evidence of harm is an important part of establishing marpractice. l’here must be both an error ln the care, as well as evidence that there has been an adyerse effect on the patient.
For example, a patient with diabetes has osteomyelitis on an X ray ofhis foot. The physician does not perform a bone biopsy and givcs the patient oral cefadro:i:7l for six weeks. After therapy is over, the osteomyelitis has completely resolved. The patient secs some literature on the Internet several months later conclu_ sively showing that a bone biopsy is an indispensable part of osteonyelitis care to determine an organism and its sensitivities. In addition, he sees that intravenous therapy is the standard of care. He files suit against the physician. What will be the most likely outcome?
The patient is right that the physician deviated from the standard of care on these two points. However, his disease was effectively treatecl and thcre was no harm clone to the patient, and in fact there was benefit. Therefore, malpractice has not occurred.
DEVIATIONS FROM I.OCAL STANDARDS OF CARE Physicians must practice according to accepted therapy based on demonstrated efficacy. Because there is a certain amount of subjectivity in care, it is incumbent upon the physi cran to determine what the locally accepted standard of care is. In addition, you must fully inform the patient of all options in care in order to make a truly i’formed choice.
For example, a surgeon has_ just moved into private practice in Beverly Hills, California, afler his research fellowship. His patient with lymphoma srgns consent for an exploratory laparotomy to stage lymphoma. He does not inform the patient that CT scanning is a valid option. The surgeon tells her, ,I don,t trust those scans. We always did laparotomies in my fellowship., The patient develops an abdominal wound infection leaving her with a scar that ends h…n…, o, a swimsuit model. In the suit that follows the surgeon states,l did the most accurate procedure for my patrent to exclude cancer in the abdomen. That is what all my protessors did in their studies." Wlat will most likely be the outcome?
The surgeon erred in two ways. First, he did not explain to the patient that a CT scan of the abdomen is a valid option to exclude stage III ly_pho_u. Because he did not fully inform her, he will probably lose the case. Second, the local standard of care outside of certain
research protocols is to do only the scans. Because the patient developed a complication hom an avoidable procedure and there has been harm, the physician is at fault and will probably lose the case. The same reasoning would be true for a surgeon insisting on an arillary lymph node dissection for evcry patient with breast cancer instead of a sentinel lymph node dissection. If the patient develops edema and cellulitis from an unnecessary procedure, then there has been harm. The sentinel node dissection is most often the local standard of care. In addition, if the patient was not informed of the option of an axillary dissection, then there has not been full informed consent. The patient cannot choose a procedure if she has never hcard of it.
INFORMED CONSENT PROTECTION AGAINST LIABILITY Errors and complications do not autornatically imply malpractice. In terms of errors, part of the liability depends on whether or not the error resulted in harm to tne parlent.
For example, a patient admits to the hospital for a knee replacement. The staff forgets to start the patient on deep venous thrombosis (DVT) prophylaxis. The patient does not develop a DVT, On transferring care several months later the patient obtains a copy of the chart and sees the omission. He files suit for a deviation of care. What is the most likely outcome?
Although it is a clear error to omit DVT prophylaxis in this case, no harm has occurred to the patient and it would be difficult to obtain monetary reimbursement for damages if the patient is unharmed.
Complications of therapy do not imply malpractice. The main issue in determining malpractice is whether the patient was fully informed that the Itarm could occur and whether or not he was informed of other valid options in therapy. If he was fully informed and he signed consent an).way, then malpractice has not necessarily occurred.
For exemplq an actress develops stage IV non-Hodgkin’s lymphoma. you inform her that neither surgery nor local radiation will be appropriate. She agrees to undergo combination chemotherapy and has been informed of all the potential adverse effects including hair loss, sterility, and peripheral neuropathy. Ihe usual and customary dose ofthe chemotherapy is given and the patient loses her hair and develops neuropathy from the vincristine. She is not able to work because of her appearance. She files suit because of this. What will be the ntost likely outcome?
Although in this case harm has occurred to the patient, the physician is not herd liabre for malpractice. He has fully informcd the patient that her besi option for survival was che, nrotherapy and that hair loss and 'europathy could occur. Although it is unfortunate that this has occurred, that does not make it malpractice.
INFORMED REFUSAT IS AS IMPORTANT AS INFORMED CONSENT lf a paticnt refuses therapy it is not sufficient to say that the patient was a competent adult who had the ability to refuse therapy. The patient must be fully informed of the effects and possible outcomes of refusing therapy incruding all the harm that courd occur rf the patient still refuses then there has been no malpractice. It is also not acceptabre to say that a paticnt was difficult, abusivc, or unable to understand English. The physician has an obliga_ tron to provide information to adult patients with decision-rnaki’g capacity in a language that they can understand.
For example, a 60-year-old rlan conles to the emergetcy department with one hour of chest pain and an ST seglnent elev.rtion myocardial infarction. The patient is a recent immigrant who speaks French and untlerstands little English. you inform the patient that the best therapy is angioplasty and possibly thrombolytics. You explain that they can develop intracranial bleeding from the thrombolytics ancl a hematoma at the site of the catheter placement from the angioplasty. The patient, anxio,s to avoid thcse complications, refuses both. you do not double check the refusal with a translator. The patient dies and his family sues you for malpractice. In your defense you point out the clear fact that you offered the patier.rt lifesaving therapy and he refused. what wiI be the most like]v outcome?
In addition to informing a patient of the complications of therapy, you must atso infbrm them of the complications of not receiving the therapy. ln addition, if there is the question of a language problem, you must obtain a translator to double check your patient under stands the impact of withholding the treatment. In this case it was not docunrentecr that you told the patient that he could die without the treatment. He was not fully informed. You would lose the lawsuit.
PATIENTS MUST FUttY INFORM THE PHYSICIAN OF THEIR MEDICAT PROBTEMS
For example, a man is admitted for a possible DVT. He denies any past medical history. He does not infornt you of his recent diagnosis of a gastric ulcer after encloscopy for severe uppcr gastrointestinal bleeding. There is no previous record at this hospital. You give him heparin anrl he hemorrhages rnassively. Hc sues you for harn.ring him. His lanlrcr knorvs 1’ou gave heparin to a patient rvith a history of bleeding tl.rat harmed the patient. What rvill be the most likely outconc?
In addition to a patient’s rigl.rt to be fully infonned of the risks and benefits of therapr, the patient also has a responsibility to inforn you of their entirc medical history. There is no malpractice if the patient has a complication from a previoLrs illness that he did not tell )rcu about and you hacl no way of knorvir.rg ol If the patient has a history of an allergy to penicillin and he does not tell you when you ask, you are not held liatrle if ,votL administer penicillin nnd he develops an allcrgic reaction.
RISK MANAGEMENT
Risk management is thc term applied to the administrative portion of the hospital devoted to assessing liability issues in terms of care. Risk managentent assesses deviations in carc and analyzes cases in which rvrongdoing might have occurred in order to mininrize the risk of litigation for the hospital.
MEDICAT ERRORS
Thc pl.rvsician has a duty to inform patients of crrors in care if those errors will have an impact on the paticr.rt’s care. The patient has a right to hnol’what is happening in his management. This includes all errors that ntay affect the outcorrc of the patient’s care. lnforn.ring the patient is not limited just to telling him about the errors that you krow he l’ill find out about or to infbrm hin.r just about thc ones that may rcsult in litigation ar.rd malpractice. If I bring my car to you for repair and,vour assistant breaks the lvindshield by rnistake, I l.rave a right to be informed. The car is my propertv and I havc a right to knorv r.vhat is happeninglr’r’ith it.
On the other hand there is no mandate to inform a paticltt about minor errors that will have no impact on her care or treatment. If thc blood tests wcre delayed or a single test forgotten the patient does not have to be informed of this as rong as the informatio’is obtained in a timely fashion and as long as it will not impact her care. The main dcterni, nant of the rced to inform the patient is not the rnagnitude of the n.ristake, but rather the impact on her life and health carc.