Disclosure• Neither I nor any member of my immediate

family has a financial relationship or interest with any proprietary entity producing health care goods or services related to the content of this CME activity.

• My content will not include discussion / reference of any commercial products or services.

• I do not intend to discuss an unapproved investigative use of commercial products / devices.

Preventing Malpractice Lawsuits in Pediatrics /

Pediatric Emergency Medicine

STEVEN M. SELBST, M.D.

A.I. duPont Hospital for Children

Wilmington, DE

Jefferson Medical College

Philadelphia, PA

Closed Claims- Average Indemnity 1985-2006

• Neurology $302,181 1st

• Neurosurg $300, 843 2nd

• Ob-Gyn $267,711 3rd

• Pediatrics $261,231 4th

• Intern Med $182,297 11th

• Emerg Med $158,401 15th

• Gen Surg $158,237 17th

• Ortho Surg $148,053 19th

• Fam Med $139,966 21st

Source: Physician Insurers Assoc of America, 2006

Malpractice Lawsuits

• 1/3 AAP members named

• ED = high risk• 85% suits involve

“off-hours”• Most settle out of

court• 10% reach jury

High Risk Cases

Pediatric Emergency Medicine

Meningitis

Appendicitis

Fractures

Testicular Torsion

Selbst SM, Friedman MJ, Singh SB Ped Emerg Care, 21:165-169, 2005.

High Risk Cases Pediatric Emergency

Medicine

• Wound complications

• Medication errors

• Myocarditis

• Dehydration

Why people sue

Bad outcome

Negligent care

Poor communication

Why people sue

Monetary needs

Anger/revenge

Guilt/displaced blame

“Save next patient”

Relatives

Greed

Lawsuits and The ED

Why Us?

Long waiting times

Impersonal registration

Brief contact with physician

Rapport not established

Physician strain

The Legal ProcessIs it Malpractice?

• Bad outcome or bad practice?• Was there a:

–Duty to treat–Breach of duty–Injury related to this

• Role of an expert

Standard of Care

What a reasonable practitioner, in that specialty, under those circumstances, would do

Risk Management Strategies

1. Practice good medicine

2. Communicate well

(patients, staff, consultants)

3. Document the good care

Practice Good Medicine• Act reasonably

•Consider mother’s concerns

• Observe if worrisome history, exam

• Focus on persistent vomiting, lethargy

• Arrange follow-up

• Look for improvement

Practice Good Medicine

• Follow policies and protocols– Often sought by attorneys– Make sure they are reasonable– Defend deviation from guidelines

• Supervise trainees– Lack of supervision-- medical errors

Singh H, et al. Arch Intern Med 2007;167:2030

Case Illustration

13 Year Old Male

cc: Abdominal pain

Allergy - none

Medications - acetaminophen

Exposure - none

PMH - none

History (Nurse)

RLQ pain since last AM

Nausea, vomiting

Walks with obvious pain

NPO, no BM 2 days

Fever to 102

Resp easy, awake, guarding abdomen

Ambulates, off stretcher, no difficulty

History (Physician)

Began yesterday when woke

Throwing up, nausea

Pain mostly RLQ

Better with movement

Past history of pain with urination

Urine clear, no blood

Vital Signs

Temperature 103.9

Pulse 98

Respirations 24

Weight 44.6 kg

Blood pressure 122/82

Physical ExamHEENT Benign

Lungs CTA

Heart RRR

Abdomen Positive BS, tender R and LLQ

Mild-moderate involuntary guarding

No rebound, no mass

Rectal Vault empty, no stool

Abdominal X-Ray

Small calcified mass - pelvis

Possible appendicolith vs renal stone

Official reading: “Appendicolith cannot be ruled out”

CBC

WBC 9.76 Segs 83

Hgb 14.7 Bands 14

Hct 41.6 Lymph 2

Plts 233 Baso 1

UA

Sg < 1.005

PH 6.0

Protein, glucose Negative

Bili, blood Negative

Nitrates Negative

Ketones Trace

Impression

Probable renal lithiasis

Plan

Repeat UA

Acetaminophen

IV NS

Re-evaluation

PO taken well

Less pain

Mild abdominal tenderness

Impression: renal colic vs AGE

Discharge Instructions

Encourage oral fluids

Strain urine, save any stones

Ibuprofen

Your Thoughts?

Case Illustration

Triage at 2000

16 yr old girl

Trouble breathing 45 minutesPMH asthmaAlert, dyspnea

Numbness hands & feet

Lungs clear

• T- 39.2 • P- 112 • RR- 40 • BP- 112/90

Physician Hx at 2020

C/O left shoulder, LLQ painBegan while drivingNumbness, tingling fingersDifficulty breathing resolvedNow C/O pain everywhereSaw psychologist in past

Exam

• Alert, anxious, appears upset• Skin- warm, dry• Neck- supple• Heart/ lungs- normal• Abd- soft, LUQ tender• Extrems- 2 + pulses, FROM

Course 2130

• Feels fine- “wants to go”• “Histrionic patient”• Abd soft• Joints FROM, no swelling• CXR negative• Assessment- Viral syndrome• Plan- recheck 3-4 days

Your Thoughts?

Communicate Well

Case Illustration

16 year old “feeling terrible”

3 ED visits in 5 days

Dx flu, atypical pneumonia, stress

Mother wants admission

Mother escorted out of ED

Admitted elsewhere with pneumonia

Failure to Communicate 70 % of lawsuits involve

communication style, clinician attitude • Inadequately explained diagnosis,

treatment

• Failed to understand patient/family perspective

• Discounted, devalued patient/family views

• Patient felt rushed

Beckman HB. Arch Int Med 154:1365-1370, 1994

Failure to Communicate Families who sue are dissatisfied with

patient-doctor communication.– 13% doctor would not listen– 32% doctor does not talk openly– 48% doctor attempted to mislead– 70% doctor did not warn about

outcome

Hickson GB, et al. JAMA 267:1359-1363,1992.

Failure to Communicate

Unsolicited patient complaints about physicians are significantly related to lawsuits.

Hickson GB, et al. JAMA 287: 2951-2957, 2002.

Communication Skills

Patient satisfaction is key

Consider professional training, role playing

Patient advocate helps

Triage and registration important

Unhurried appearance

Dress, posture, manners

Demonstrate compassion

Apologize for wait time

Listen well

Speak clearly, simply

Hide your own anger

Communications Skills

ED Physician

Communication Skills

• Tell family what to expect

• Keep family informed

• Don’t demean others

• Avoid joking, stray comments

• Calm angry families

Discharge Instructions

• When to see PCP

• When to return immediately

• Review written instructions

• Obtain signature

Medical Record

• Your best defense

or

• Plaintiff’s best witness

Recommendations for Documentation

Carefully Document• History of illness / injury• Physical exam & vital signs• Time of exam, orders, procedures• Patient change or improvement

–“Tell the chart”

Recommendations for Documentation

Carefully Document• Conversations with consultants• Reports of procedures, tests• Diagnostic impression, thought

process• Discharge instructions• Disposition

Recommendations

For Documentation

Show a concerned, professional note

Avoid inflammatory remarks

Carefully note correct body part

Document injuries with diagrams

Additional Recommendations

for the Medical Record

Do Not:

Black out or erase

Engage in “battles” on paper

Use insensitive terms

Use unnecessary terms

Alter the chart later

Advantages of Telephone Management

• Many for the patient

• Some for office practitioner

• None for ED physician

Liability Case – Telephone Mother called: 13-month-old baby, 3 day hx of chickenpox . Now fever, bruising.

Office staff did not bring in for visit.

Child died from group A strep sepsis following varicella.

Office has no record of phone call.• Settled for $400,000

Liability case – Telephone

Mother called: spoke with nurse in office on Saturday. Teenage son had scrotal pain. Nurse said doctor would call back.

No one called back until Monday. Testicle lost from torsion,

subsequent ischemia and necrosis.

The plaintiff was awarded $150,000.

ED Telephone Advice Mock Scenario

D. Issacman, et al Pediatrics 1992

5 week old - fever, signs of meningitis 87% EDs gave advice28% did not ask age60% advised same day evaluation28% did not recommend evaluation

Disadvantages of Telephone Management

• Complete history is difficult• Physical exam is impossible• Many distractions in ED• Instructions may be misunderstood• Documentation is difficult• Follow- up is difficult

Indications for Telephone Management

• Poisonings• Life-threatening emergency• Help patient get access to care• Patients who just left ED

Always tell patient to come to ED

ISSUES OF CONSENT

Treating Minors Without Parents

• Temporary custodians may lack authority

• Allowed for emergencies• Should attempt to contact parents• Telephone consent should

be witnessed

15 year old boy

• Unaccompanied by parent

• C/O inguinal adenopathy

• Concern about GC

15 year old boy

• Should he be seen without parent?

• Should parent be informed of diagnosis?

• Suppose mother gets bill, wants info?

Treating Adolescents Without Parents

Teaching Points

• They often present without parents.

• They often don’t want parents to

know of visit.

• State laws for treatment vary.

Problems Related to Treatment

Medical issues

-Delay in care could harm patient

-History from teen may be incomplete

Billing issues

Ethical issues

Emancipated Minors Do Not

Need Parental Consent Married (past or present)

High school graduate

Pregnant (past or present)

Self-employed

Served in armed forces

Living independently

Parental Consent Not Needed

Any medical emergency

Venereal disease

Pregnancy / abortion

Contraceptive services

Drug, alcohol abuse services

4 year old Choked on Peanut

• RR 44, slight retractions

• Decreased BS on right

• CXR consistent with FB

• Difficult IV, Mom angry, wants out

4 year old Choked on Peanut

• Should mom be allowed to leave AMA?

• Should you get court order?

• What are the dangers of leaving AMA?

Leaving Against Medical Advice

Teaching Points:

Parents Have Rights to Refuse Treatment

• Best to avoid this situation

• Establish rapport with parents

• Another physician may help

• Document the scenario / sign forms

• Invite them back

When Leaving AMA

is Not Permitted

• Suspected child abuse

• Life-threatening situation

• Patient / parents are disoriented

Teaching Points

• Use caution- chest pain, abd pain

• Use caution if child can’t ambulate

• Care given by others impacts you

• Change of shift is dangerous time

• If consultant needed, insist on help

Teaching Points

• Vomiting is not always GI pathology

• Postpone LP if infant in distress

• Ask for help with complex wounds

• Read the notes of others

• Describe patient improvement in discharge note

Bottom Line

Listen to & talk with your patients

Provide high-quality care

Document carefully