Want to Prevent Malpractice Suits? Listen Up

By Rubsamen, David S. | Medical Economics, April 24, 2000 | Go to article overview

Want to Prevent Malpractice Suits? Listen Up


Rubsamen, David S., Medical Economics


After back surgery, a 47-year-- old truck driver, still unconscious from anesthesia, lay in a private room. An orderly had been told to "watch him." And watch him she did, as his atelectasis progressed to cyanosis, cardiac arrest, and severe brain damage. That led to the first million-dollar malpractice award (one that was actually paid) in my home state of California. The year? 1967.

In those days, the successful malpractice lawsuit was distinctly uncommon, and typically involved evidence of obvious neglect, buttressed by the testimony of an expert witness. By the mid-1970s, a significant number of medical experts-many of them recruited from academic centers by the growing legion of plaintiffs' attorneys--were marching to the witness stand to testify against their colleagues. Along the way what constituted "neglect" and "the standard of care" became increasingly open to interpretation.

In a 1973 trial, for example, the plaintiff contended that constant, rather than intermittent, pulse monitoring should be the standard of care during surgery Four experts for the defense said, "Palpating the temporal artery every few minutes is the way we all do it for brief surgeries." The jury, however, chose to believe a single expert for the other side; the result was a $1.2 million verdict for the plaintiff, a 38-year-old housewife who'd suffered cardiac arrest and brain damage during a 20minute tubal ligation. Money talks: After two similar big-dollar settlements, California anesthesiologists were employing constant pulse monitoring, and malpractice insurers in the state soon revised their own standards to call for this safety measure.

By the early 1980s, the biggest malpractice awards arose from perinatal damage. But the greatest volume of cases stemmed from alleged errors in diagnosis, with experts on both sides warring over the meaning and import of highly complex medical facts. Failure-to-diagnose claims remain a prominent part of the malpractice landscape todayand these errors of omission are every bit as crucial as the errors of commission highlighted in the recent Institute of Medicine report. A missed diagnosis has become even more of a hazard in today's environment, in which everything seems to be forcing the doctor to speed up the pace of seeing patients. Patients themselves are very much aware of these time pressures.

Errors are likely to occur when doctors-confronted with a difficult diagnosis, but feeling hurried-don't stop and listen to the patient. Instead, they count on a battery of lab tests to provide the answers they need. My advice: Shut the door, tell your staff not to interrupt, and spend some extra time with the patient: "Please tell me again all you know about this illness. …

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