Technology: A Critical Care Blessing, and a Malpractice Curse
May 1, 2000 5 minutes read
Technology: A Critical Care Blessing, and a Malpractice Curse
By Julie Crawshaw
Advances in life-saving and life-extending technology are obviously a boon to critical care medicine. But they also can put critical care physicians on the hot seat in malpractice trials.
Simply stated, if you don’t use the best and latest medical devices—despite their cost—a plaintiff’s attorney is likely to use them against you and your institution in a lawsuit.
"The problem in ICU is that it’s a very expensive area of medicine for the hospitals," says Jeffrey S. Raynes, a malpractice lawyer in San Bernardino, CA. He points out that keeping ICU patients alive, often on life support, is costly. How much neuromonitoring are physicians permitted to do? How do they know whether they have cerebral oxygenation? Are they judging cerebral oxygenation from a pulse oxymeter or are they actually testing brain oxymetry, which probably costs about $100 for the electrodes?
"You can’t do everything that’s possible, but if a jury hears there were things available that would have given the CCU doctor good information they don’t much care that those things would have added to the cost.
"You have to remember," Raynes says, "that generally you are in court because you had a catastrophic result. To get on the stand and say Well, we can’t do this in every case because it would be financially negative’ doesn’t sell well to juries."
In other words, it’s easy for administrators to look at the bottom line in critical care, but if you have one patient who comes out hypoxic or ischemic you’ll wish you’d had cerebral oxymetry.
Raynes sees this as being one reason there’s so much new medicine occurring today. For example, heart surgeons are beginning to look at doing more beating heart surgery without the heart-lung pump. "They’re looking at it not only because it’s safer, but because it’s much less expensive," he says. "With that in mind, it’s hard to justify not using all the safeguards and precautions you possibly can."
In critical care, Raynes says, lawyers need to realize that the first evaluation is the distinction between a poor medical result and poor medical management. "Any patient in the ICU has a good chance of having a poor result," he says. "When families come to me after having bad experiences in CCU, I tell them the first thing we need to do is understand that some people die on the table. It doesn’t have to mean anyone did anything wrong—in fact, the care could have been heroic."
Impeccable charting is the best preventive medicine against malpractice suits, and Raynes says that good charting practice doesn’t require that everything be written down. However, the physician who charts positives but not negatives will have a poor outcome in trial.
"They don’t win against any quality attorney," Raynes says. "Defeating them is as simple as asking Weren’t you taught in school to chart all significant findings, both positive and negative?’ If they don’t answer that affirmatively, an expert witness will."
He strongly counsels physicians to remember that it’s as important to chart that a patient has a normal temperature as it is to chart an abnormal one. The information is meaningful either way.
"You’d be shocked at the number of lawsuits we see where physicians don’t chart negative findings and then ask us to assume that they did everything and it was all normal," Raynes says.
Raynes accurately observes that not every ICU patient comes in from open-heart surgery. "It’s much more common now to get critical care patients through the emergency department. They come in drug-overdosed, HIV-positive, with systemic illnesses, diabetic, hypertensive." He noted that when lawyers look at these cases it’s important for them to realize how much easier it is to evaluate ICU cases after the fact. "While the trauma is occurring, it’s not easy to keep these people alive. I’m very careful with critical care cases," he says.
Communication is also a key factor—communication between doctor and patient, between doctor and doctor, between doctor and nursing staff, between doctor and the patient’s chart.
"Generally speaking," Raynes says, "the higher the level of communication, the better the level of care and the lower the risk of a malpractice lawsuit. Oftentimes, whether a case is or isn’t filed depends on the chart. The more information on patient care that needs to be supplied verbally, the harder it is to defend the case."
Malpractice defense attorney Thomas A. Packer from San Francisco concurs. "Many successful plaintiffs got that way because of poor chart keeping. The adage is, if you didn’t chart it, you didn’t do it." Packer knows whereof he speaks. As vice chairman of the Medical Liability Committee of the Defense Research Institute (DRI) and a partner in the San Francisco-based law firm of Gordon Rees, he’s had plenty of experience in counseling and defending physicians accused of malpractice.
Packer’s fellow DRI committee members are attorneys, risk management professionals, insurance representatives, and in-house counsel for health care systems who are all interested in common issues in defense of medical liability claims. "We hold an annual two-day seminar to discuss matters of common interest in defending medical malpractice claims so that they can be more effectively defended and resolved," Packer says.
DRI was organized in 1960 by attorneys who were concerned that the scales of justice were beginning to weigh too heavily in favor of plaintiffs and that balance in the civil justice system needed to be restored. Since 1976, DRI has held more than 300 continuing legal education seminars throughout the United States on topics ranging from insurance coverage and practice, medical malpractice and environmental and hazardous waste litigation, to employment law, products liability, and drug and medical device litigation.
One good way to avoid lawsuits is simple: Establish a good rapport with your patients and their families. Raynes and Packer both observe that what often stops people from filing lawsuits is that they’re pleased with their physicians. "A very good, open relationship with a physician will deter a patient from filing a malpractice case to begin with," Packer says. "Even if a mistake is actually made, if the communication and relationship are good, the patient may well not bring suit."
Packer notes that there are certainly a large number of claims against health care professionals that are without merit. He always wants his client sitting next to him in court during a trial, to show commitment to the case and so the jury gets to know the defendant. But going to court always takes huge chunks of time away from the defendant’s practice, and there are always delays in trials.
"Many times my physician clients will see patients starting at 6 a.m., get to court by 8:30, maybe see a patient during lunchtime, and then again after 5 p.m. so that they can see their patients and keep their income streams going," Packer says.
He notes that in any medical malpractice case, the first thing the plaintiff must prove is liability, that the provider acted below the standard of care for the community by doing (or failing to do) something reputable doctors in the community would have done. The second is that the plaintiff sustained harm as a result, and for this the plaintiff bears the burden of proof.
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