Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

A worrisome trend seems to be catching fire.

To illustrate:

A physician in his 70s may have raised his voice during surgery or a procedure. Perhaps he made a staff worker or hospital employee feel uncomfortable, or even sad. Maybe the moment was tense. The physician may have been diligently focused on getting the job done during a make or break moment. The doctor was not focused on anything other than helping the patient.

The staff worker or hospital employee then files a complaint. This morphs into a concern that the physician, deemed elderly, should be sent for neuropsychological testing. Is a single unpleasant encounter during a tense moment a warning sign for neurocognitive decline? If so, I never received that memo. 

Now, here is where it goes from bad to worse.

The physician wants to cooperate. He believes this exercise is silly. He should be able to pass the tests and get back to work quickly. How could he not pass the test? He has treated thousands of patients doing high-risk cases. Boxes of thank you notes fill his office. He is an asset to the institution.

During the neuropsychological evaluation, one of the many tests includes remembering objects for immediate recall and a number of minutes later. One variation is the Common Objects Memory Test (COMT).^[1]

The subject is shown 3” × 5” color photographs of 10 common objects (button, chair, clock, comb, cup, key, knife, leaf, scissors, and umbrella) across three learning trials at the rate of one photograph every 2 sec. The subject is asked to name the objects aloud as each is shown and forewarned to remember them. If the subject cannot name an object, the examiner names it for the subject to repeat to ensure registration of the target word. Recall of the 10 objects in any sequence is requested immediately after each learning trial. The examiner records the objects that are correctly recalled, the order of their recall, as well as any intrusions. After the third learning trial, the subject is distracted for 3–5 min with unrelated test activities. Following this approximately 5-min delay, the subject is asked to recall the objects again. The 5-min delayed recall is immediately followed by a recognition test in which the subject is shown a set of 20 photographs that includes the10 original objects and 10 distracters. The subject is asked to indicate with a simple “Yes” or “No” whether an object was seen in the three learning trials. The distracter objects are similar to the original objects in terms of familiarity and visual complexity as judged by the authors during consensus meetings. After another approximately 30-min interval filled with unrelated test activities, another recall and recognition test are administered. For the second recognition test, a different set of 10 distracter objects is used. The main scores of the COMT are the number of objects correctly recalled (out of 10) during each of the three learning trials and each of the two delayed recall tests, and the number of objects correctly identified (out of 20) as old or new during each of the two delayed recognition tests.

Age does affect performance on the COMT.

But does performance on the COMT predict problems in the clinic or operating room?

Back to our vignette.

The physician does OK on the Common Objects Memory Test compared to his age-matched peers. The report comes back, Dr. X is above average for his age matched peers, but relative to individuals in their 30s, he would be considered “cognitively impaired.” The recommendation is for the doctor to consider winding down his practice and retire with dignity before patients are injured.

The ten common objects on the COMT test are forgettable. They have no emotional valence. They’re neutral. Why WOULD anyone remember them?

What if the test for a neurosurgeon, for example, consisted of ten cards: MR of pineal tumor, large herniated L4-5 disc, intracranial pressure reading of 36, and so on. You get the picture. Items worth remembering. Surely that matters more than scissors and umbrella.

If 70+ year old physicians performing at above-average in memory recall are deemed impaired relative to 30 year old colleagues, are we to conclude that the most talented physicians are in their 30s? They should be heads of departments and academic chairman? Not to disparage those in their 30s, but there is something to be said for experience.

Good judgment comes from experience.

Experience comes from bad judgment.

The more you see and do, the better you get.

One other memorable saying from one of my mentors. The cure for a surgeon’s arrogance is long term patient follow-up. It takes time to go from good to great.

Remember, the sentinel event which set up these dominoes in the vignette was a complaint by a hospital employee that the doctor appeared to be mean to him/her. Their feelings were hurt.

Given the complaint was based on a single event (with no mention of patient safety or a clinical outcome), it’s surprising this morphed into a recommendation to be evaluated by a neuropsychologist. Vanderbilt’s (VUMC) Center for Patient and Professional Advocacy (CPPA), the nation’s opinion leader on physician professionalism, has much to say about co-worker observations in terms of promoting accountability for disrespectful and unsafe behaviors. In an article published in Joint Commission Journal on Quality and Patient Safety in 2016, VUMC described its Co-Worker Observation Reporting System (CORS).^[2]

The CORS process begins when a coworker submits a report describing a professional colleague’s conduct that the coworker perceives to be unsafe or disrespectful via VUMC’s online occurrence reporting system. If egregious or unlawful conduct is alleged, the report is referred to officials in charge of investigating and taking action in response to such reports. All CORS reports are uploaded to Center for Patient and Professional Advocacy for coding and analysis. The database identifies how many previous CORS reports, if any, have indicated unsafe or disrespectful conduct associated with the professional, and all reports are reviewed by CPPA’s operational leader for appropriate and timely next steps. Specifically, in collaboration with CORS faculty champions, previously trained departmental “messengers” (other physicians or APPs) are identified to receive first and second reports associated with a named professional. Third and subsequent reports are compiled for delivery by designated authorities.

What does the Center for Patient and Professional Advocacy view as the time-tested best practice for managing single-report sharing?

Single-Report Sharing. The designated peer “messenger” receives the report within one business day of its online submission and is asked to review the report and share it with the associated professional. These “cup of coffee conversations” are intended to be private (whenever possible, in the clinician’s office or work space), timely (within five working days of receipt), respectful, and collegial. When sharing with a colleague that a coworker had perceived behavior or performance inconsistent with professional standards, messengers were trained to remain nonjudgmental, acknowledge other potential perspectives, and ask the professional to consider the content and self-reflect. The goal was to offer an opportunity for “self-regulation.” Messengers were asked to return a secure online survey to confirm whether the report was shared and, if not, the rationale for not sharing.

In other words, for a single incident that is not egregious or unlawful, the best approach is an “informal cup of coffee” discussion delivered by a peer. Non-adversarial. The single goal being to persuade the individual to reflect on what happened. The vast majority of times, that’s the end of the matter. The physician has learned from the process. Everyone benefits. 

With Center for Patient and Professional Advocacy’s approach (which is licensed to medical centers across the country), are physicians routinely shuttled for neuropsychological evaluations after a single encounter? No, they aren’t. They are approached for an informal “cup of coffee” conversation delivered by a peer. Turfing this to a neuropsychologist to evaluate for cognitive decline is overkill.

Finally, is short term memory a wonderful measure for cognitive performance? Let’s see. I hate mayonnaise. I actually loathe mayonnaise. At a restaurant, if I order a sandwich and see it comes with mayonnaise, I ask they substitute mustard. A modest request. If the server fails to write down my request, odds are high I’ll have to remove the mayonnaise with a knife once my order is delivered.

A better measure of cognitive performance would be having the judgment to know our memories are collectively fallible, no matter your age, and if you take notes, you are more likely to get it right. If you’re a server at a restaurant, young or old, write the order down. There’s no shame in that.

And I’m skeptical of some proxy measures of performance. If you want to prognosticate on a physician’s talent in the clinic or operating room, see how they perform in the clinic or operating room. Yes, it’s that simple. All physicians have some deficiency. Over time, they learn how to compensate for any deficiency. And thrive. The measure of physician cognitive performance should be patient safety and outcomes. Not whether you can remember scissors and umbrella.

If a doctor yells at a staff member, and a complaint is filed, and there’s no pattern of such behavior, work it out with an informal cup of coffee conversation delivered by a peer. Keep it simple. Vanderbilt’s Center for Patient and Professional Advocacy has demonstrated this suffices. It works.

Yes, there are some elderly physicians who need to have their metaphorical car keys taken from them. But the price for pushing early retirement on senior physicians based solely on performance on Common Objects Memory Test is too high.

What do you think?

[1] Kempler D, et al. The common objects memory test (COMT): A simple test with cross-cultural applicability. Journal of the International Neuropsychological Society (2010), 16, 537 – 545.

[2] Webb LE, et al. Using Coworker Observations to Promote Accountability for Disrespectful and Unsafe Behaviors by Physicians and Advanced Practice Professionals. Joint Commission Journal on Quality and Patient Safety. 2016; 42: 149 161.

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.