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?
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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.
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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.
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If treatment is being considered, the patient should be fully informed of the limitation in the doctor’s capabilities.
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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.]
I am a veteran and have worked in the VA as the head of a department in one of their largest hospitals. For the VA leadership, veterans are “labrats” and you can do anything whether you are credentialed or not. One of the docs who worked for me would perform invasive procedures, without permission or supervision and with no experience, perform readings on PET-CT scans without the requisite training and not being on the facility’s license for Radioactive materials. If there was an adverse event, they would conceal it from me and not inform the patient. Can one imagine performing a thyroid biopsy on a normally located thyroid and puncturing the lung – well this happens in the VA! Of course it was not reported and the patient was not informed. There were others who were not authorized users of radioactive material who would countermand our prescriptions and administer something else providing less information and give more radiation. There was nothing I could do to correct the situation – I had gone up the chain of command to the Secretary of the VA and to the Inspector General – other than inviting retaliation and harassment to me and those of my staff who believed that taking care of veterans was an avocation. In what other brand of healthcare facility would someone be given 6 units of mismatched blood products and then ascribe the patient’s death to renal failure with no admission of administering mismatched blood products I have absolute proof of what I have described.
While there are several practitioners in the VA who are caring and committed, there is enough tolerance by the leadership who exert minimal oversight, and impose no sanctions for unacceptable practices. Of course, the miscreants invariably are given large bonuses.
This is because the Taxpayer provides them with immunity through the TORT Claims act.
My solution is that instead of the high minded and righteous sounding directive given by Abraham Lincoln which enjoins us to “provide for those who have endured the battle” – they should have Dante Alighieri’s quote emblazoned on their portals “Abandon all hope ye who enter here.”
The second case about clot lysis in a below-the-knee case is interesting technically for an unexpected reason. An interventional radiologist is not experienced or trained in lower extremity compartment-release surgery which could be the real cause of the blood clot. Lysis of the blood clot would not save the foot if the patient had a concomitant diagnosis of acute compartment syndrome. Blood clots are commonly found in such pathology.
Ironically, the one specialist not considered for this case was the podiatrist. Quite a number of podiatrists release emergent compartment syndrome cases secondary to sports and other injuries. The problem here was that the staff was not familiar with levels of care and surgical experience of modern DPMs, who successfully do these procedures in most states. It is unlikely that this even occurred to them.
It is likely that the vascular surgeon would know how to properly diagnose and do the release. But if a vascular surgeon was not available to even examine the patient, this does the patient no good. A good sports-medicine MD would catch this in a few seconds.
Technically a compartment release is well within the licensure of most DPMs, and modern, experienced, residency trained DPMs are very comfortable with it. Obviously I never saw this patient. But within any thorough diagnostic evaluation of a lower extremity blood clot and cold foot, compartment syndrome must be ruled out. It is unlikely that it was in the above case. I know of one DPM in a Western state who gets called to many ER’s all over his city to evaluate patients and perform these when necessary. He developed this reputation because of his experience in sports-medicine surgery.
Sadly, plaintiff’s attorney would call upon many highly experienced DPMs to testify against the radiologist who tried to treat a compartment syndrome with only clot lysis, and completely missed it, resulting in an amputation.
Michael M. Rosenblatt, DPM
The interesting point that Dr Rosenblatt comment concern is which doctor should treat the patient when fields overlap as they seem to more and more. know of one hospital where trauma call has gone from being shared with plastic, ent, and oms to ent and oms then finally just oms is handling all facial trauma.
Dr. Rosenblatt’s analysis sure scared me: I’ve pushed a lot of catheters in my career and would think nothing of going below the knee–I’ve gone into tiny nth-order branches in the brain without problem. But it didn’t even cross my mind that the patient described might have had a compartment syndrome! And it wouldn’t have entered my mind to ask a podiatrist, even though my late brother (smartest of the three of us, all of whom became doctors) had been one before he went to DO school.
I guess that an earlier MJ post discussing what to do if you’ve had a few cocktails and get called–while you’re not on call. Not answering the phone, or at least listening to a description of the problem and declining to get involved, might prove to be the most prudent course to take.
JH
For the doc returning from family issues, there would be no reason to discuss this routinely with her office patients as long as she practices within her comfort zone. Most of “bread-and-butter” medicine is entrenched deeply in the brain after extensive training: like riding a bike. For example, I haven’t performed a thyroidectomy or tonsillectomy since 2008, but I feel confident offering these procedures simply from my past extensive clinical experience and volume of cases performed. The patient is made aware of, and then must accept the potential complications of surgery. I would fully disclose to my patient that I haven’t performed this operation in 6 years, but that I feel comfortable moving forward. If the patient chooses to go elsewhere, it’s one less thing to worry about.
Back to the GYN, she ought not be compelled to inform a patient she hasn’t performed a pap-smear in a year.
Scenario 2: Keep high-risk patient encounters, especially in a hospital setting, to a minimum if you’re a private practitioner. Leave those encounters for the docs that have sold their practices to the hospitals. And even for the physician hospital employees: never do any procedure you’re not trained to perform, or any procedure that you’re not covered for or trained in dealing with possible complications arising from such procedures.
Dr. Joseph is correct. If you are a CEO of a Fortune 500 Company or a member of Congress, the hospital where you go will find a specialist to take care of you, somehow. But for the rest of us, we must accept what we have required physicians to do, that is, mind the lawyers. Our liberal politicians have decided they want to control physicians and limit their professional choices and income. That is where we are.
I have learned, as have some of the physicians who write here, what it means to fight a peer review action. In my case it was as a consultant. Others have not been so lucky. A peer review complaint is vastly worse than a malpractice action because there are literally no rules. Everyone of them is different.
Doing more than you are trained to do will put you into risk of a peer review complaint. You can count yourself lucky if it only leads to a lawsuit against you. I was on staff at a teaching hospital that allowed DPMs on staff to matriculate with surgeons more experienced than themselves to learn new operations and procedures and expand their repertoire. Like many who view the world through aging glasses, I had no idea how lucky we were. I’m sure this is now unheard of. You do have some chances for fellowships and if you can find someone, proctoring. New-product reps are always willing to find a way to get you trained.
We now have large metropolitan hospitals, (as Dr. Joseph said) which hire physicians to work as employees. These doctors are shielded, at least to some extent, by a phalanx of lawyers on retainer. But those shields can disappear in a second if it is in the hospitals’ interest to make it so. Consequently, he also advises not to attempt procedures you are not comfortable with or have not done in a long time, even if you are a hospital employee.
As I grew older in practice, I limited my surgery, ironically with no regrets. Protecting myself put me into a new comfort zone that both surprised and thrilled me. The World can do without podiatrists. (Some diabetics might object, however.)
In your case, you limit yourself, not because you are really unsure of your qualifications, but for fear of the processes that are standing front and center to be used against you. You are wise to heed that fear.
Michael M. Rosenblatt, DPM
the long and short of my diatribe was that – if you want to practice medicine with impunity and near complete protection – try the VA.