Notes from a Plaintiff’s Attorney: Preventing and responding to complaints

By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

 

We continue our series of 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.

 

This situation bedevils doctors – a case that becomes a “telephone game” of distorted comments and finally ends up in a complaint that may ripen into a professional sanction or a lawsuit.

It turns physicians into their own worst enemies, first losing sight of how they may be antagonizing those who will later tell the story; then becoming defensive in a way that causes an investigator to conclude there actually was fire under the claimed smoke.

In this column we will look at how to make it stop.

To understand how to head a burgeoning problem “off at the pass” we will look at what happened to a doctor who was actually very conscientious and caring but who still ended up on the receiving end of a serious complaint with their hospital.

First, we need to review my five simple rules of pre-emptive risk management:

1. No one who has their own problem cares about your issues.

2. There is nothing worse than being dogmatically inflexible.

3. What you say will eventually be twisted by the teller to serve their own purposes, so you must speak with foresight.

4. What you do not do initially – on terms that you control- you will end up doing eventually under circumstances that are worse for you.

5. What you do not document to your advantage in your words the other side will later say to your disadvantage in theirs.

A neurologist, was consulted by an ER Physician to authorize thrombolytic therapy for the Patient, who had had a stroke.

This was a routine protocol under which neurologist would then receive a formal request to see the patient the next day to evaluate him after the therapy. Shortly before leaving the hospital that evening the neurologist was notified that the admitting doctor, who had taken over the patient’s care, had put in a request for a consultation. The nurse who conveyed this information did not indicate that the consultation was in any way non-standard. And neither the ER Physician nor the admitting doctor had personally asked the neurologist to see the patient on an emergency basis. The neurologist therefore went home.

The neurologist later received a call from a nurse in the ER. The nurse said that the patient was still in the ER because an ICU bed was not yet available, and that she was intubated and stable. She said that the patient’s family wanted to see neurologist immediately about “what is going on.”

The neurologist pointed out the family would have already had a full consenting discussion with the ER Physician about the thrombolytic therapy and would also have discussed future plans with the admitting doctor, while he had actually never seen the patient and had nothing to add.

The neurologist then also told the nurse that a physician would be expected to be making the call if there was an actual reason warranting return to see an ER patient. He was not in that category.

The neurologist thereby broke Rule 1.

The nurse had an upset family to address and therefore no interest in the logistics. Further, the neurologist had – albeit inadvertently – made her feel like an annoying underling. The neurologist thereby not only lost a valuable ally in dealing with the family but actually antagonized the only available spokesperson.

The neurologist, first stating that consulting does not normally occur in the ER, promised to see the patient in the morning.

The neurologist had now broken Rule 2, and actually not even in a logical way since Mrs. Patient was now actually an ICU patient just waiting for a bed.

Rule 3, of course, then kicked in and the family was told by the nurse that the neurologist was refusing to return because the case was not important enough because it was not an emergency.

Not unexpectedly, they became enraged.

So, what could the neurologist have done instead to stop what was already a setting fraught with problems from getting worse? The answer comes from Rule 2: Meet the situation on its own terms.

The neurologist should have simply spoken to the patient’s husband on the phone and explained the situation, while also assuring him that they would meet the next day when he had some solid information to provide.

The neurologist called back a few hours later to check whether the patient had been transferred to the ICU. The nurse said that the admitting doctor had transferred her to University Hospital.

The neurologist had now broken Rule 4.

What Dr. Consult intended as appropriate physician concern became, in this situation, a red flag for the prior refusal to come in. The way was now open for an evaluator to question why Dr. Consult did not come in if the case was actually worthy of ongoing concern.

The neurologist later found out that the patient had died after being transferred. See a pattern here?

The neurologist was later told by Risk Management that a complaint had been lodged by the family.

The complaint said that the neurologist never evaluated the patient despite being aware of a STAT consultation request. It also said that the neurologist was called multiple times but responded, “I’m not coming back. I’ll see her tomorrow. It’s not an emergency.” It also emphasized how compassionate and helpful the family thought that the ER Physician, the admitting doctor and the nurse were and mentioned that all three had “apologized” for the neurologist’s conduct.

Risk management asked for an answering statement from the neurologist.

The neurologist feared that this was the opening salvo in a lawsuit over the patient’s death. So wrote a statement that centered on his non-liability in that death. It described how the ER Physician had cut off the initial discussion about thrombolysis and seemed to be in a rush to administer the treatment. It also stated that it was inappropriate to keep the patient in the ER, instead of the ICU.

The statement was very defensive, going into detail about his typical pattern of response, emphasizing how seldom that involves seeing patients acutely and how he is usually in the hospital much later than on that day.

Throughout the statement the neurologist referred to everyone but the physicians only by their status (“the patient”, “the nurse”). The family was described as “demanding” the neurologist’s return.

At this point the neurologist reached Rule 5 and broke it as well.

In trying to defend against a feared malpractice case – instead of addressing a current complaint about communication, the neurologist gave a reviewer good reason to believe that there was something more to dig for — flagging an uncharacteristic early departure, thereby raising questions about a reluctance to return.

The neurologist was also now, by criticizing keeping the patient in the ER, adverse to the hospital and the ER- the side that might need for support in litigation. Here he was unable to show any personal action to deal with that alleged improper care.

The neurologist – who actually had excellent relationships with staff and patients – also came off as dismissive of everyone, something which reviewers (or jurors) would certainly notice in a case about a claimed refusal to meet with a worried family.

This response was the result of anger and anxiety, leading to a loss of focus on the real issue which was – as always – reasonability under the circumstances:

1. Given the facts of the case, it was reasonable to avoid evaluating the patient that night. Neither treating physician had asked for an urgent evaluation and a later evaluation would be more clinically revealing.
2. It was reasonable for a consultant who had not yet examined the patient and who had no up-to-date information to hold off on discussing her status with the family; particularly when when there were physicians better equipped to do so.

Here is what the neurologist should have written:

At (time) on (date), I was called by Dr.ER, who was treating Mrs. Patient. He intended to administer tPA for a stroke. At that time he indicated some urgency because the therapeutic window, while still acceptable, was narrow.

As appropriate clinical criteria were met, I agreed to the treatment being initiated.

I had no further conversations with Dr. ER about Mrs. Patient, nor any conversations with Dr. Admit, who took over her case from Dr. ER.

Neither Dr. ER nor Dr. Admit requested that I come to see Mrs. Patient personally that evening.

In this setting it is typical for a request to be submitted for me to see the patient the next day to best evaluate the effect of the thrombolytic therapy. I was informed of such a standard (i.e.; non-STAT) request later that evening and intended to see Mrs. Patient the next day, as per usual practice.

I was called at (time) by Nurse ER, who told me that Mrs. Patient’s family wanted to see me because they wanted to know “what was going on.”

Nurse ER told me that Mrs. Patient was still in the ER because there was no ICU bed available yet and that she had been intubated and was stable.

I said that I was not the proper physician to address the family’s larger concerns since I had only had a telephone conversation with Dr. ER about the tPA. I also said that there would have been a full consenting discussion with the family by Dr.ER as well as a discussion of future plans with Dr. Admit, who had not discussed those plans with me. In that setting I felt that I had nothing substantive to add.

I asked that the fact that I had not examined or treated Mrs. Patient be conveyed to her family and that they be assured that I would see her the next day to best evaluate her post-treatment progress and would speak to them fully at that time.

I later called back to find out if Mrs. Patient had been admitted to the ICU so that I could plan to see her there before the nurses’ shift change in the morning. I was told that she was being transferred to University Hospital by Dr. Admit.

I was later informed that Mrs. Patient had died while at University Hospital but was not given any further facts regarding this.

If I can provide any additional clarification please do not hesitate to contact me.

This version includes the five requirements for a good response to the challenging situation of a professional complaint:

1. Projects a non-defensive certainty in the appropriateness of what is said.
2. Directs to the actual complaint but still addresses the possibility of more extensive action by emphasizing reasonability at each step and filling in necessary facts smoothly, again without flagging them defensively.
3. Permits the complainer to save face because the goal is to stop the problem, not to win an ongoing fight.
4. Takes the high road by not trying to affix blame. This not only impresses the reader with the responding physician’s professionalism but, going back to point 1, avoids projecting defensiveness.
5. It is brief, which is the best insurance against making a statement that you will regret later.

This response “detangles” the situation by pointing out the baseline error by the family as to the doctor’s role at its core, explains every apparent inconsistency, such as why a doctor who claimed to be uninvolved in the case would be calling back about patient disposition, and opens no other doors of inquiry.

It says, “Move along…nothing to see here…”

If the matter still proceeds to a disciplinary panel at the hospital, to an action at the state board or to litigation it is a stable platform which the neurologist’s attorney can use to explain everything without difficulty.

Preventing an escalating communication snafu is best. Responding to an escalating communicating snafu later in writing is also an important skill.

In summary: Dealing pre-emptively with the “emotional politics” of medical practice (the 5 Rules) can avert serious medicolegal consequences. Responses to complaints should be emotionally restrained, non-condemnatory, respectful of patients and staff and focused on the reasonability of the physician’s conduct under the circumstances (the 5 Requirements).