If All the Docs are Doing it is it not Malpractice

Part of the legal definition of malpractice includes the idea that the treatment provided falls below the accepted standard of practice in the medical community.  In other words, it must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard operating procedures that are currently being widely used by other physicians in the city in which the doctor practices.

For a malpractice case to be successfully pursued in court, the treatment must also be shown to be negligent and of course result in some quantifiable harm to the patient. But what happens if certain harmful procedures were being widely performed by almost all of the other doctors in the community? Even if the harms are predictable and significant, is a doctor protected from liability just because "everybody's doing it?"

Many mothers back in my day used to answer their kids' protestations that "other kids get to do it!" with, "If everyone jumped off a bridge, would you do it too?" I can't speak for others, but mindlessly following the herd was not something that was encouraged in my family system.

I do not know off hand what the answer is to the question above. Perhaps some malpractice attorney who happens to read this might write in with the answer. The reason I thought of this question was something I recently read in the psychopharmacology (psych drug) newsletter Biological Therapies in Psychiatry (July 2014) about how often kids are monitored for side effects when they are prescribed psychiatric medications.

Regular readers of this blog know that I think that the diagnosis of pediatric bipolar disorder is in the vast majority of cases a scam, and that prescribing antipsychotic drugs to children to control their behavior is a reprehensible activity. Kids should not be sedated into being less affected by family dysfunction.   

That would be bad enough, but what is worse is that antipsychotic drugs have potentially dangerous side effects. Particularly with the newer, "atypical" antipsychotics, there is a significant risk of causing weight gain, type II diabetes, and high cholesterol. These risks may be higher in children and adolescents than they are in adults.

If a patient is psychotic, the benefits of these medications generally outweigh the risks, especially if the patient is monitored for the emergence of these side effects. And there are few other options. (Sometimes one drug in a class will do it in a given patient, but not another drug in the same class). If patients are not psychotic, and very few kids are, the benefits decidedly do not outweigh the risks.

At the very least, the doctor should take blood tests periodically to see if these side effects are developing. You would think that doing that would be the standard community practice.

Well, if you thought that you would be wrong. 

In a retrospective study by Delate and others (JAMA Pediatrics, 2014 May 5) of pediatric patients started on an atypical antipsychotic within the Kaiser Permanente system HMO in Colorado, the authors found that only 1 patient out of 1023 received the full recommended panel of baseline and follow-up blood monitoring!

That's right; you read correctly. 1 out of over 1000, or one tenth of one percent. Of course we don't know if kids in other health plans are being treated this negligently, but I would not be surprised.

So if almost all of the doctors in a community are making little kids jump off bridges, does this mean that they are not going to be held liable if they are sued for malpractice?

Hey Slapass What Are You Supposed to Be Doing Right Now Taint This

Hey fathead!

What are you doing here, anyway? Are you malingering, procrastinating, wasting your precious gifts, face deep in a laptop when you could be face deep in the lap of a fine young man or woman, ignoring your garden, ignoring your children, ignoring that strange man at the front door with the funny tic in his eye and the metallic smile, wishing you were somewhere else, wishing you could run off and join the circus, wishing that the world would stop and grant you a few more hours, biding your time until the muse comes up and bites you on the perineum, wasting your time until the oceans rise and wash over you and your uncompleted manuscripts?

Go on, get outta here! If I catch you on Twitter later this evening, there will be hell to pay, I assure you.

Are you still here? Do I have to take the switch to you?

Go away. Your naughtiness will be recorded in the annals for all to read and you will be mocked and people will throw potatoes at your head. And maybe bricks and nails.

I'm getting really angry now.

Go and make beautiful art, muttonheaded buffoon! The world is mooning over you, prematurely. The celebrity rags have already prepared their articles.

I am going to get on a plane now and whup the daylights out of your porkchop ass. Get ready, dinkums. When I arrive, I expect to see a first draft. Or hear your fine composition on the peee-a-no. Or taste your cake baked in the shape of the state of Texas. Or see the tree that you have carved into a fine replica of Abraham Lincoln. Or pet the little knitted Zombunny that you have stitched in your spare time.

Go now and do what you are meant to do.    

Is Your Psychiatrist Committing Malpractice Even if Doing What a Lot of Other Psychiatrists Are Doing

My malpractice carrier, which is physician owned and operated, recommends taking one of their seminars or online courses on different aspects of medical malpractice every year, and gives those policy owners who do a 10% discount on their yearly premium. 

The course I took this year was on misdiagnosis.

The course was not really geared to psychiatrists at all, but it seemed to me that the general advice still applies to them. However,  in my experience the advice is not clearly being followed by a lot of my colleagues these days. If these recommendations are indeed valid, and I certainly agree that they are, a lot of psychiatrists are getting away with gross negligence. 

Statistics show, by the way, that doctors are actually far more likely to get sued for something they did not do wrong than they are to get sued for actual malpractice. Isn’t that bizarre?

Some of the advice in the malpractice course concerns two major criticisms of my colleagues that I have written about extensively on this blog and in my last book: relying on symptom checklists, and relying on a diagnoses made by a prior clinician. Truly frightening.

So, as a public service, here’s some information from the course that psychiatric patients might find useful if they are considering suing a psychiatrist for malpractice. From MedRisk (Medical Risk Management, Inc.).

Misdiagnoses were more likely to be considered negligent in malpractice suits. Misdiagnoses were more than three times more likely to result in serious patient injury than medication errors.

2.      Multiple case law decisions have consistently held that the patient has no duty to volunteer information the physician does not ask about, and the patient’s only duty is to answer the physician’s questions honestly. (A smoker actually has no duty to tell his cardiologist about the smoking if the cardiologist does not ask!)

3.      Review any written history questionnaires with the patient to make sure the information is accurate. Patients who are sick or in pain can’t be relied on to even read the questions carefully, let alone provide thoughtful answers. Many patients will simply respond with a “No” to all prior diseases without reading the list and some patients, as discussed below, may not even be able to read or understand the questions. For example, the patient with a known history of high blood pressure may answer “No” when asked if he has ever been diagnosed with hypertension simply because he doesn’t know that they are the same thing. So make sure that your questionnaires are worded as simply as possible. Even then, review the responses verbally with the patient and make sure that you really do have a useful medical history. 

      

      Most healthcare instructional materials provided to patients are written on a 10th grade reading level or higher. Yet the reading level of the average patient is 4.6 grade levels below the last year of school completed, which means that a typical high school graduate reads at around an 8th-grade level. Further, the average Medicaid recipient reads at less than a 6th grade level, with more than one-third reading below the 4th grade level.

4.      Hear the patient outwhile taking the history and do not interrupt. Physicians are often overworked, overbooked, and scrambling to stay on schedule. This can leave them anxious to get to the point of a patient visit. One study found that physicians on average interrupted patients only 18 seconds into the explanation of the reason for the visit. This is significant because patients typically have a list of several complaints or observations they would like to discuss, yet rarely get beyond the first or second before being interrupted. Cutting the patient off before you’ve heard him out is called “premature closure,” and the main problem with this approach is that it assumes that the presenting complaint carries the most medical significance.

This is often not the case because the patient experiencing multiple symptoms may not know which are the most important, nor which may be related to the same underlying cause. For example, the patient who reports transient blurriness in her right eye may not realize that the simultaneous tingling sensation she feels in her right arm and leg are related. Premature closure typically involves a patient with a serious but uncommon diagnosis who presents with symptoms suggestive of a less serious and more common diagnosis.  

Contributing to premature closure is a general human tendency to hear what we expect to hear, and mentally filter out as extraneous any details that we don’t expect. Fortunately, the main assumption underlying premature closure—that patients will talk endlessly if allowed—appears to be incorrect. Several studies have found that patients who are allowed to list all their concerns without interruption rarely speak for more than two minutes. Allowing the patient those two minutes not only prevents premature closure, but can actually save you time by allowing you to focus on the most important symptoms first. It also avoids those “Oh, by the way…” conversations in which the patient brings up a new problem just as you’re headed for the door.

And finally:

5.      Every doctor owes a duty of making an independent assessment of the patient, utilizing the full range of his or her clinical skills, regardless of whether you’re a primary care provider or a sub-specialty consultant. If you’re an FP [family practitioner] and receive a specialty ob-gyn report informing you that a 60-year-old woman who had a hysterectomy 15 years ago is pregnant, you’d obviously recognize that you’d received the wrong patient’s report or that some other mix-up had occurred. Yet far less blatant errors occur all the time in the exchange of patient information, and you should always be mindful of that possibility any time the specialist’s opinion doesn’t fit your clinical finding or the patient fails to respond to treatment as expected.

Clearly, the same can be said for not entirely relying on the diagnosis of some other practitioner even  in the same specialty, who may or may not have done a good diagnostic workup, but instead doing one’s own independent assessment. If a  psychiatrist prescribes something to you after initally talking to you for just fifteen or twenty minutes, find another doctor.