by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast
That the choice to ally with someone who has harmed your patient and to deny your patient critical facts about their own health is an utter betrayal of the trust at the core of the physician-patient relationship is obvious.
However, it is also an excellent way to get yourself sued, and sued in a way that your malpractice insurance will not cover and that your malpractice carrier will not defend.
You have a duty of care to your patient that is predicated on the patient being informed as to matters concerning their own health. As soon as you decide to not reveal a relevant fact without a clinically valid reason to do so, you have breached that duty, and preventing the patient from possibly suing another doctor certainly does not come under the heading of “clinically valid”. If the patient is harmed as a result of your choice to deny them information about themselves because you wanted to shield another doctor, you will be liable for that harm and can be sued for it.
You can also be pulled into someone else’s malpractice case if you prevented the patient – now the plaintiff – from knowing about that other doctor’s error and that denial of information then led to a worsening of the harm that the other doctor’s malpractice initiated. That is because you are responsible for what is reasonably foreseeable to be a result of your conduct, and not telling a patient that they have been malpracticed on is certainly reasonably foreseeable to result in that patient not being able to seek correction.
In fact, even if the patient-turned-plaintiff does not bring you in, the defendant doctor can do so, demanding that you share in the judgment for your role in worsening the situation and thereby driving up the ultimate verdict or settlement.
In fact, when things hit the fan – which they will – the one thing that you can be certain of is that the doctor you covered for will show no loyalty to you.
There is also the fact that, if you practice in a jurisdiction with a Discovery Rule under which the ability of the patient to bring a lawsuit accrues when they know or should have known about the malpractice, if you intentionally interfere with the patient finding out about the malpractice when they reasonably should have you are not just liable for any damages they sustain thereby but you also increase the time to bring the case because in such jurisdictions the time to bring a suit is extended if there has been intentional concealment of the malpractice.
Even if you are in a jurisdiction where there is no Discovery Rule and the Statute of Limitations has already run out against the original doctor, you can still be sued independently for fraudulent concealment of the facts, which in most jurisdictions has a Statute of Limitations at least three times longer than that for medical malpractice.
However, because your conduct in all of these situations was intentional rather than negligent it will not be covered by your malpractice insurance. You will have to bear the costs of your defense and any verdict or settlement against you on your own.
That should be a very sobering thought.
Now, none of what I have said means that you cannot do what you think is appropriate to minimize the risk a colleague will face.
If the matter is such that it can sustain a minor delay, you can contact the doctor you believe has committed the malpractice and ask them to deal with it.
However, if you do do so you cannot then just close the book on the matter. You must follow up within a short period of time – remember, you may have to argue later that any delay that you introduced into the matter was not clinically significant – to make sure that it has been addressed. If it has not, then you must deal with the patient yourself.
Whether you are speaking to the patient initially or only after the malpracticing physician has failed to do so, you can, of course, put the matter in context to the patient. You can emphasize that there are alternative ways to deal with a medical issue or that the error was probably not clinically significant if you believe that those facts apply.
Of course, any conversations with another physician or with the patient should be fully documented by you.
In doing so, use restraint even if the other doctor’s conduct has changed your attitude about them from protective to exasperated.
You want to protect yourself from a retaliatory lawsuit by the other doctor and so you want to be seen as a professional doing what was right, not someone with a personal grudge. Make the points that (1) you detected the problem and (2) you made sure that the patient was informed in a timely manner, and then stop.
The one thing that you should never do – whether speaking with a patient or writing a note – is to state definitively that “This is malpractice”. That is a legal conclusion that you are not reaching.
You are laying out the clinical facts to make sure that your patient is properly informed, which is your ethical duty as their physician, and nothing more.
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All of this so far relates to a situation where you do not have to be directly involved with the other doctor’s negligent conduct. Some specialties, such as radiology and pathology, must, however, issue reports that incorporate review of prior studies, and so those physicians face an additional hurdle when dealing with someone else’s previous mistake.
However, even in these settings, the same rules apply.
Simply issuing your own report as though the other report never existed is absolutely unacceptable, and when it comes to light later you will be just as on the hook for any delays you introduced and just as subject to being held liable for intentional concealment as a doctor who was dealing with an entirely independent practitioner’s error.
…and it will come to light. Plaintiff’s attorneys are very savvy as to how a work-up proceeds and will also pay attention to the patient’s own history of what was done. If a gap appears to be present they will get copies of the billing records and match them to the studies they have reports for. Therefore, the study you pretended never existed will be found and your attempt to conceal it will do you great medicolegal harm.
You will also be opening yourself to being seen as negligent. That is because comparison to prior studies is part of the standard of care. Your apparent failure to do so – that is to say, a gap that you create by pretending that you never saw what you actually did see – will later look like a breach of the standard of care on your part if there is a lawsuit.
You do have the option to contact the physician who made the error and offer them them the chance to issue an addendum and contact the patient on their own. Of course, the same obligation to make sure that they did so as was discussed above will then apply and you will, just as in any situation, document the events in your own report.
You can also include any mitigating matters in your report – the finding was less clear previously, the rate of change is minimal and likely not clinically significant, etc.
There is also the problem of detecting malpractice by someone you are bound to in some degree of interest, such as a member of your own group or partnership or a staff member at a hospital where you have privileges.
Here, your concerns are very personal: Will I be putting myself on a financial hook? Will I be seen as a troublemaker by my hospital?
The simple answer is that the patient’s right to know about their own health and your duty to convey it trumps those issues, but in the real world there are ways to accommodate both.
If you are not able to get the other physician to deal with the problem themselves, you can bring the matter to the senior or operational partner of the group or to the administration or counsel of the hospital to offer them the chance to deal with the matter.
Again, you will use professional restraint when setting the matter out for them and will document what you did.
They have every incentive to act on what you tell them because they will face liability as partners or as employers/supervisors if there is a lawsuit, and so it is in their best interests to mitigate their future losses by contacting the patient early and possibly even working out an alternative settlement.
On the other hand, if you fail to bring the matter to their attention, you will be potentially liable to them for losses they suffer as a result of your concealment.
In other words, it is far better to be the helpful bearer of bad but controllable tidings than to be seen as an accomplice.
If, however, they do nothing or try to conceal the matter, you must speak to the patient. Your duties and ethics as a physician require no less.
In summary: Your loyalty is to your patient, not to the other doctor, but you can balance the two.
This article is as clear as mud, except that it blames physicians for whatever action they take/don’t take regarding concealing, exposing or disclosing alleged malpractice they may or may not observe from another practitioner with whom you shared patient care.
The intent of the non-de-plume author (who should have at least had the courtesy of using their real name) is to advise physicians that they cannot “conceal” malpractice. The author then refuses to explain exactly what “malpractice is.” It is an event outside of the standard of care? Is it a negligent event of lack of disclosure? Is it surgical/and or diagnostic negligence?
Then, who decides what category this falls under? The courts? Plaintiff attorneys? News media?
Ultimately all this article does is confuse physicians, who are already under enough stress. JD’s (even when combined with a medical degree) like to play legal games because they were trained by Socratic method to blame the messenger.
All I can get out of this is to contact your OWN healthcare attorney and ask them what to do. It shocks me that the author didn’t recommend this somewhere in this generally useless article. And when you do, be sure to pay your own attorney a fee for their advice, which puts THEM on the line, as they should be.
At that point, you can claim that you just followed your attorney’s advice. Then, let them deal with the fallout, remembering that you can also sue your own attorney for malpractice if he/she gives you lousy advice.
Michael M. Rosenblatt, DPM
The problem I have w/ this article is that it equates all errors with malpractice, and equates all adverse events as being malpractice.
No system that requires its participants to be perfect can succeed.
It would have been more useful to use the term “complication” instead of “malpractice” as they are very different different, though they sometimes overlap.
From my experience, it is not possible to withhold information regarding a significant complication; the patient or family find complications to be fairly obvious. Perforationg a colon from colonoscopy comes to mind.
And I’m not sure one can call an insignificant event a complication.
The point of this article as I see it, is to advise docs to not deny the obvious. And to not delay treatment of significant complications that resulted from the treatment of other docs.
I agree that the article could have been more clearly written if it were written from the perspective of a doc that actually treats patients; not from the perspective of a lawyer that benefits from such adverse events.
As a practicing dentist, as well as being involved with Peer Review for over 20 years, I can tell you that regardless of what you think of this article, it still bears value for any health care practitioner, in that it promotes the concept of transparency…..ie, there is almost nothing we learn about our patient that the patient shouldn’t know, however we choose to bestow that information on them (as long as it’s rendered objectively and non-judgmentally). Patients come to us for care, skill, and judgement, and withholding any of the information we learn in an examination of them falls below the standard of care. None of us would want someone else to judge whether we should know something gleaned from an examination performed on us, so why wouldn’t we practice that with our patients?
Patients sometimes ask my opinion as to whether care prior care was negligent, and I never take the bait. We must remember that we are hearing only one side of the story. It is certainly reasonable to request prior medical records. If things look bad, I may suggest that the state medical board do an independent investigation. Once lawyers get involved, the truth gets lost.
Can someone please read and edit the these “Notes From a Plaintiffs Attorney” before they are published. I assume they are supposed to be an insiders guide for physicians but they appear to only:
1. Further confuse a confusing issue
2. Give advice that appears to be advantageous for plaintiffs attorneys
3. Show how screwed up and unfixable our tort system is.
4. Illustrate that this really is the beginning of the apocalypse!
This latest rendition is so bad it almost laughable. Let me get this straight! If we doctors suspect malpractice we should render a legal opinion without knowing all the facts in order to aide the patient in their attempt to sue for a complication which may or may not fall below the standard of care even if we might defame the other physician. Otherwise we could face liability for withholding our belief that malpractice has occurred, even though we have no way to confirm it. God, help us!
Dr. Mobley:
These “Notes From a Plaintiffs Attorney” ARE read beforehand. They are not edited because then they would NOT be “Notes From a Plaintiffs Attorney”. Most of the advice in the series has been reasonable. For example – The Notes’ treatment of Doing a Deposition was spot on.
Medical Justice does not agree with everything that this Plaintiff’s Attorney is stating. But, I believe it is an honest account of how this particular plaintiff’s attorney parses cases.
As to what to do if you suspect overt malpractice – here’s a case I am aware of. PMR doctor sees patient for persistent pain. Obtains routine films and finds a retained sponge. He calls the referring doctor (the surgeon) and says there’s a sponge. The PMR doctor says nothing but tells the patient he must follow up with the original surgeon. The patient goes back to the original surgeon who does not come clean. He does recommend placement of neurostimulator to treat the pain. Surgeon implants the device and coincidentally removes the sponge. Patient is never told about the sponge.
Should the PMR doctor have mentioned to the patient anything about the retained sponge? Perhaps more facts are needed. Most people understand that retained sponge is a problem.
I think the important point is not to withhold information from a patient. Your job is to be an advocate for your patient – not an advocate for a plaintiff. It is true that in many cases you do not have all the facts. And in the plastic surgical world (your world), we see so many colleagues criticizing surgeons who operated on common patients without all of the facts.
Let me try to cut through the confusion and keep it simple. This is just one person’s opinion, though. Like so much in life, a balanced approach is needed. If obvious malpractice has been committed and you have all of the salient facts, the right thing to do is to tell your patient what you know. More often, you will NOT have all of the facts. It is reasonable to get more facts – such as by calling the prior doctor. One benefit is that you may be able to calm a volatile situation (particularly if you learn the prior doctor treated at or above the standard of care). Of course you do not want to render judgment without adequate information.
And yes, the tort system is screwed up.
Fear is an incredibly powerful motivator. If the intent of this article was to strike fear into the hearts of physicians, then BRAVO! It accomplished what it was intended to do. If instead it was to educate and/or teach morality, it is a useless waste of time. Thanks for nothing.
Medical Justice Editor DID help clarify the article. One wishes he had written it instead. Editor gave an example of a “retained sponge.” This is a res ipsa loquitur example of malpractice. Everyone knows that the sponge count is signed off at the responsibility of the surgeon, whether their signature appears on a sign-off form or not. That is a clear example.
Others however are not quite so obvious. This unsigned article does not clarify what constitutes malpractice, unless it is like what Supreme Court Justice Potter Stewart, Jacobellis vs. Ohio (1964) said “looking” at pornography: “I can’t define what is pornography, but I know it when I see it.”
The author of this article accomplished an amazing feat. He/she connected his article on “shielding” malpractice with a logical discussion of dirty films.
Michael M. Rosenblatt, DPM
This is a particular problem for certain fields where the doctor basically leaves his signature on the patient such as dentistry and plastics.
I agree on something as concrete as a retained sponge. Res ipsa loquitur (it speaks for itself) is one of those rare times when you need no additional information to understand that malpractice has occurred.
A more common senario would be: A 67 year old with hypertension is 1 year out from a facelift by Dr. X and has severe bilateral preauricular scaring. She is a heavy smoker. She asks “did the other doctor do something wrong?” She claims she did not smoke after her surgery. She notes she had bilateral large collections of blood develope the night after her surgery.
It gets a little more sticky with a real world example!
In the real-world example above – the patient with severe bilateral pre-auricular scarring… The answer to the question “did the other doctor do something wrong?” is more often than not – “I don’t know.” There are too many details that would need clarification before a doctor could fairly answer the question one year later.
Did the patient really stop smoking? Was the operative report available for review? How did the doctor respond to the blood collections – if they even existed? And a multitude of other details.
Is there an obligation to be a private investigator? As a treating doctor, probably not. But, it might be helpful to pick up the phone (with the patient’s permission) to speak with the first doctor letting him know that Ms. Jones is in the office. She is asking about what might have happened during the surgery and post-op phase. You’d like to do your best to help fill in gaps in her knowledge. Frequently, the first doctor will appreciate your call. And the details might provide insight into your proposed treatment of the patient. Finally, passing this information back to the patient might provide closure.
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