We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

Dirty Harry said, “A man’s got to know his limitations.”

The best general medico-legal advice is to do nothing that is not fully within your technical and knowledge comfort zone. When you move outside your specific area of expertise you will be held to the Standard of Care of an experienced and qualified practitioner in the area you have entered.

However, real life as a practicing physician has a tendency to not cooperate with the ideal.

Recently, two physicians raised questions about how to handle moving outside that ideal zone of practice, one in an elective setting and one in an emergency setting.

1. The elective scenario addressed an obstetrician-gynecologist who took a year off for family issues. She was now re-entering full-time practice. She felt confident dealing with most situations. Her concern was whether to inform patients that she had not recently performed surgical procedures.

The critical issue here is the one the doctor addressed – she believed that her skills were adequate for cases she expected to encounter. She could refer more complicated cases to colleagues while she eased back into practice.

If this assessment is valid, then the fact that she had not been operating consistently for the recent past is not something a “reasonable” patient would want to know in deciding whether to undertake care with her. That element is the predicate for informed consent.

Her situation is similar to that of a general surgeon who may infrequently perform mastectomies with axillary node dissection relative to the number of cholecystectomies that he performs, for example. That surgeon is not required to inform a breast cancer patient that he last performed such a procedure a year ago if his skills are adequate to address a standard procedure for which he is eminently qualified.

The same would apply if the original questioner had been absent from practice for a longer period but had taken skills training during or after that interval to compensate for a lack of hands-on patient care. That she had re-apprenticed, for example, on hysterectomies would not be something she would be required to disclose as long as her current skill level was adequate.

This situation is distinct from physicians performing a new procedure, such as their first laparoscopic cholecystectomy. In that setting, reasonable patients would want to know they are Patient Zero. That fact must be revealed to them as part of the consenting procedure.

2. The emergency scenario addresses an on-call interventional radiologist requested by the ER to do a small vessel clot lysis on a patient with an acutely cold foot. Although such procedures were listed as potentially covered by interventional radiology (the credentialing line item listed “angiography and related procedures”), small vessel clot lysis was not a separately credentialed issue for the physician. Apparently, vascular surgery had previously fully covered these patients and so the radiologist, whose experience was predominantly in dealing with large vessel disease above the knee, had not done such a procedure (which also requires intensive ICU follow-up) in several years. This time, however, the vascular surgeon was tied up in a complicated case at a different hospital and “time is foot.”

This is a more complicated situation because it occurred in a hospital.

This means that EMTALA came into play.

This patient, already admitted into the ER, was unstable by definition and the hospital had held itself out as providing the type of care that the patient needed (i.e.; it had not pre-emptively closed to vascular cases when the surgeon became unavailable).

If the hospital was utterly unable to do the needed procedure, it could stabilize the patient as best as its resources allowed, and then transfer him to a facility able to treat him definitively. But by the hospital’s own standards, it did have an alternative – the interventional radiologist – and so a transfer could be an EMTALA violation.

To understand what may be medically counter-intuitive, it’s essential to remember that the purpose of EMTALA is to prevent dumping of unstable patients. It was designed as a blunt instrument – it actually does not parse out what might be ideal for a specific patient.

The hospital went to the interventional radiologist, relying on the general language in the credentialing contract, in its own interests.

However, the radiologist was under a countervailing duty to the patient to not act negligently in that patient’s care.

Here, there was the additional case-specific issue of it being potentially below the Standard of Care to do a clot lysis without immediate access to vascular surgery to cover for complications. But for our purposes, let’s just look at the primary issue: the radiologist’s concern that his skills were rusty and that he would serve the patient suboptimally by proceeding.

It is the essence of negligence – a breach of the fiduciary duty of care to the patient – to perform a treatment with the expectation that it will do more harm than good.

EMTALA does not change this calculus- the hospital is the entity obligated to meet the required standard and it cannot pass this to the individual physician, even if that physician is on-call under a contractual duty to the hospital. The hospital cannot compel the doctor to act if the doctor believes that acting is a violation of their duty to the patient.

What can change this situation, however, is a shift to a more acute emergency, without transfer as an option, under which the physician’s reservations about their own skill recede under the imminence of the harm to the patient.

Even though Good Samaritan laws, which raise the standards for actionability to gross negligence in recognition of the limitations that emergency situations present, do not generally apply to hospital-based care, it is assumed a true emergency bends the rules from the ideal.

If the physician believes that, under the circumstances, the risk of their not treating the patient is greater than the risk of treating with a less-than-ideal skill set, the matter then becomes one of informed consent.

In this specific case, for example, it must be explained to the patient that:

  • the vascular surgeon may not be available for several hours but that the risk of limb loss increases with the duration of the ischemia;
  • there is no less “interventional” treatment option because intravenous thrombolytics are not appropriate for the patient’s condition;
  • the available physician has performed the necessary procedure and monitored its follow-up in the past but has not done so for several years; and
  • a vascular surgeon will not be available at the time if complications occur

and the patient must then be given the option to wait until the vascular surgeon is available or to accept the procedure being done by the radiologist.

That the patient made the choice to proceed after being appropriately informed will make the radiologist defensible if, despite his best efforts (the standard he is expected to adhere to, albeit that his skills are limited) there is a complication more severe than inevitable limb loss (which is, of course, the actual damages starting point for this patient).

So where do these two situations leave us in terms of general rules?

  • The doctor must make a realistic assessment of his own capabilities to determine if there is a limitation that a reasonable patient would want to know about before consenting to treatment.

  • If a limitation in those capabilities is such that treating the patient would not be expected to yield a net benefit, then the doctor should refrain.

  • If treatment is being considered, the patient should be fully informed of the limitation in the doctor’s capabilities.

  • If the patient elects to proceed, the doctor is still required to perform to the maximum extent of his capability.

Summary: The essential question for physicians faced with a situation which may require them to practice outside their ideal limits is whether that treatment will be, under those circumstances, expected to benefit the patient. In a hospital setting the requirements of EMTALA do not alter this duty of the physician to the patient. A patient should be informed of any significant limitations in the physician’s skill.

[Medical Justice notes: Here, the vascular surgeon was taking care of another patient. He understandably could not be in more than one place at one time. The question is what to do in these circumstances. Ideally, the ER would have a protocol detailing what’s to be done if a particular patient comes in, and the covering physician is not available. Codifying this upfront makes such sticky situations easier to address than dealing with them ad-hoc.]