MANAGING MEDICAL RISK

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MANAGING MEDICAL RISK

• Julie Altmix, RN, BSN
• Professional Risk Management

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4.95 million Rodriguez v. Aurora Presbyterian
Hospital (2000)
37 yo male w/ RSD routinely treated w/
guanethidine injection. Sedation required for
injections. Phenol was left at the bedside from
the previous case was mistaken for the
guanethidine. The MD injected the phenol. Pt.
arched back immediately which MD interpreted as
pain he injected some more phenol. Pain
continued MD stated he thought pt. was having
an allergic reaction to guanethidine. Nurse
corrected him said phenol had been injected.
Pt. required emergency fasciotomy to prevent
compartment syndrome.
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Rodriguez
Fasciotomy dressing changes were painful the MD
ordered conscious sedation. Pt. was not placed
on monitoring during conscious sedation. He had
an undetected arrest suffered catastrophic
brain damage.
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Rodriguez
MD settled prior to trial admitting he 1.
Declined standard CS monitoring 2. Elected to
monitor himself then did not 3. Wrongfully
injected the phenol
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Rodriguez Jury finds hospital nurse liable

• Failure of MDs hospital staff to follow PP
• phenol disposal
• monitoring during CS
• Failure of pharmacy to properly label phenol w/
  warnings
• Failure of nursing to safeguard patient to best
  of their ability
• report use of wrong medication
• intercede proactively during CS

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Occurrence of Known Complication8 million
verdict

• 30 y/o female patient underwent tubal ligation
  sustained bladder perforation
• Post-op course resulted in 3-wk stay with sepsis,
  respiratory failure, exploratory laparotomy with
  bladder repair

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• Defense claimed that ligation was performed
  within required standard of care and that bladder
  perforation was a known risk.
• Further stated that patient had an abnormally
  placed bladder that prevented him from observing
  entry of 2nd trocar into the bladder.

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• Court/jury rejected defense that bladder
  perforation was known complication and therefore
  not actionable since there was a finding of
  deviation from standard of care during
  performance of placement of 2nd trocar.
• (was placed angling downwards toward bladder when
  it should have been pointing away to avoid this
  complication)
• Proof of this deviation of practice obliterated
  otherwise valid defense to occurrence of known
  complication.

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• Defense also claimed abnormally placed bladder
  contributed to occurrence.
• There was no documentation in record regarding
  anomalous anatomy.
• This lack of documentation influenced jurys
  determination that such an abnormality didnt in
  fact exist

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• Known complications should always be discussed in
  consent process.
• Failure to do so, even where there is no
  deviation in performance of procedure creates
  liability and responsibility for all results of
  the occurrence of that complication

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Informed Consent

• A process, NOT a form!!
• Risk and benefits of procedure.
• Alternatives.
• Risk and benefits of alternatives.
• Risks and benefits of doing nothing.

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Unnecessary Mastectomy2.4 million verdict

• 50 y/o referred to surgeon after annual exam
  revealed lump.
• Surgeon ordered u/s and FNA results were
  equivocal for cancer.
• Surgeon recommended mastectomy.
• Subsequently, pathology demonstrated breast was
  free of cancer.

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• Patient alleged surgeon deviated from standard of
  care in failing to perform thorough diagnostic
  w/u prior to surgery.
• Defendant surgeon countered that he offered
  patient several options including biopsy and/or
  lumpectomy
• Where practitioners deviate from acceptable
  standards of practice in not performing
  sufficient diagnostic w/u it will not be an
  adequate defense to state that patient refused
  usual and customary procedure (work-up) and
  elected a radical procedure.

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Failure to diagnose compartment syndrome2
million verdict

• Teen-aged boy sustained tib/fib fractures during
  football game. Was taken to OR for repair.
• Post-operatively, nursing noted pt had dusky and
  cyanotic toes, weak DP pulse, numbness in
  portions of foot informed MD

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• Pt symptoms continued for 2 days without
  intervention required fasciotomy, developed
  osteomyelitis and necrosis with multiple
  subsequent debridements with loss of tissue. Has
  permanent limp
• Orthopedic surgeon contends he engaged in
  permissible judgmental decision in failing to
  include compartment syndrome in differential.

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• Multiple entries in nursing notes re s/sx of
  compartment syndrome.
• Defendant surgeon conceded in deposition that
  there was sufficient information of the patient
  initial symptoms on the day of surgery to include
  compartment syndrome

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• Liability might not be incurred in situations
  where MD exercises best judgement in conformance
  with standard of care.
• However where there is deviation from SOC then
  exercise of judgement will not prevail as
  defense.
• Practitioners are not deemed to be guarantors of
  rendering a correct diagnosis but still must
  comply with all acceptable standards when
  arriving at diagnosis.

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Failure to Dx Ectopic Pregnancy

• 22 yo college student underwent 7 week abortion.
• Pathology report concludes products of
  conception.
• Patient began bleeding w/ severe abdominal pain.
  She was seen in the ED who confirmed the path
  report and diagnosis.

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Ectopic cont

• She was d/c are antibiotics and GYN f/u
• 3 hours later patient continued to experience
  pain. Her roommate took her to the student health
  clinic. In transit the patient lost consciousness
  and arrived w/o respiration, bp or pulse. She
  went into irreversible shock and died.
• The pathology slides of the abortion were
  reviewed and found to contain decidual tissue,
  without evidence of villi or fetal parts.

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Questions 1

• Because the final diagnosis of products of
  conception was technically correct, the
  pathologist would not be liable for this patients
  death from an ectopic pregnancy?

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Answer 1

• False
• Only decidual tissue findings indicated that
  the pregnancy may not have been terminated, or
  that it may not have been an intrauterine
  pregnancy. These factors were critical to the
  patients well-being and should have been
  reported.

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Question 2

• A pathologist has a duty to note and report
  possible disease entities consistent with a
  tissue finding, especially if one or more may be
  life-threatening?

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Answer 2

• True
• When only decidual reaction is found on an
  attempted pregnancy termination, it could signify
  a successful pregnancy termination, an
  unsuccessful pregnancy termination or an ectopic
  pregnancy, among other possible diagnoses.
  Because ectopic pregnancy is a leading cause of
  maternal death, special notation and urgent
  notification of the attending physician was
  required.

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Question 3

• Since the pathology request form did not contain
  the question rule-out ectopic, the pathologist
  did not need to consider another potential
  disease condition?

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Answer 3

• False
• A pathologist is expected to be aware of
  associated disease processes and to report
  potentially life-threatening ones to the
  attending physician.

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Failure to timely dx/tx pneumoniaWrongful
Death2 million

• 38 y/o female called PCP w/ c/o cough, aches,
  pains and fever. Without examining pt, PCP
  prescribed abx, assuming dx of bronchitis.
• 2 d later pt called PCPs office again 2x stating
  she felt worse. Was not asked to come in to be
  examined.
• 1 d after that, pts husband called stating pt
  was worse, was advised to go to ED.

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• In ED c/o severe respiratory problems. Was dx w/
  bronchitis, prescribed OTC cough medicine and
  pain reliever. D/C to home without performing
  x-rays.
• 2 days later seen at same ED w/ c/o extreme SOB.
  CXR revealed severe bilateral pneumonia.
• Intubated and admitted. Expired 7 days later.

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• Allegation
• Negligence in failure to timely diagnose and
  treat patient
• PCP should have had pt come in for examination
• ER MD should have ordered CXR
• Defendants
• stated that patient was suffering from bronchitis
  until 24 hours prior to last ER visit

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• Practitioners are advised that only a physical
  exam can justify administration of medication
  since only then can nature and extent of pts
  condition be accurately determined

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• ED physician was swayed by d/w PCP who never saw
  patient but was sure pt had bronchitis
• PCP who failed to appropriately evaluate patient
  should not influence intervening MD as to
  accuracy of that blind diagnosis
• PCP should encourage full exam and independent
  opinion

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DEFENSE VERDICTAlleged Lack of Informed Consent

• 44 y/o w/ DCIS was to undergo mastectomy. Did
  not want implants, elected TRAM flap.
• Post-op had delayed healing of abdominal wound
  which then left her with hypertrophic scarring.
  Also developed complications of fat necrosis in
  right breast and inverted nipple.

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• Allegation
• Had she been informed possibility of suffering
  such complications would not have agreed to under
  procedure and would have likely opted for breast
  implant
• Surgeon countered
• Pt was given adequate information re risks and
  alternatives

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• Surgeon dictated 5 page consultative report
  documenting that
• Pt did NOT want implants
• Fat necrosis and scarring were potential risks of
  this procedure
• Discussed these risks at her 2 pre-op visits
• Surgeon had been planning to create new nipple
  and areola during 2nd procedure but on day of
  surgery, pt requested that the areola be
  preserved.

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• Take the time to provide patient w/ all
  reasonable information relevant to making
  informed decision in advance so pt will have time
  to understand, appreciate and reflect on
  decision.
• Clear, concise documentation of those
  conversations provides substantial basis of
  evidence necessary for successful defense.

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MEDICAL RECORD DOCUMENTATION

• Preserves information about medical treatment.
• Assures continuity of care between providers.
• Preserves information that will help defend
  providers in malpractice suit.
• Inaccurate incomplete records create question
  of fact

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DISCLOSURE

• What happened
• Consequences for patient
• Treatment required
• APOLOGIZE
• Elicit questions

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Patients might understand a bad outcome or even
a mistake. But they cannot forgive a lack of
concern. - Apologies can go a long way toward
resolution
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Do Not

• Speculate
• Ascribe fault or blame
• Include confidential peer review information

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TIPS

• Expect anger, listen, do not become defensive
• Good communication is important with
  patient/family
• Never contradict treatment by a peer in the
  presence of the patient or family.

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