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'Unwinnable' case holds lessons for ED managers
Medical facts often secondary, insists attorney
The malpractice case had all the makings of a large jury verdict: It was emotionally charged, with a tragic outcome for the patient, who was a quadruple amputee.
The plaintiffs alleged that the ED physician failed to diagnosis a "classic" presentation of a kidney stone that led to septic shock while the patient was still in the department. They further alleged that the ED physician failed to properly treat the shock and then provided improper information to the internist over the telephone, which caused him not to come into the hospital on a timely basis. The plaintiffs went on to say that all negligence by the subsequent treating physicians was causally connected to the ED physician since they relied on the department's alleged medical mismanagement and wrong diagnosis.
However, on Jan. 12, 2009, the Fort Lauderdale, FL, jury found no liability against the ED physician, the ED nurses, an internist, and a surgeon.
Compassion before competency
While the clients were clearly represented by talented attorneys, one member of the winning team says cases such as this contain important messages for ED managers and their staff. The first and most important is that compassion comes before competency, notes James J. Nosich, Esq., of the Coral Gables, FL, law firm McGrane Nosich. "I believe that it's easier to win when the jury looks, No. 1, at whether the ED doc is compassionate; and two, whether they are competent," he explains. "A lot of people perceive that you get bad treatment in the ED, so if you can convince the jury that they or their family member would want the defendant as their doctor, I think they would win almost every single time."
Nosich says he can't recall having an ED physician client who was not compassionate, so the real issue is communicating that compassion. "You have to show that at all times — while the time you spent with the patient was short — it was concentrated and caring, and that you wanted the best thing for the patient," he says. "You really have to explain emergency medicine, what these people are about, why they do their job, and why they like it." Nosich can't remember a single case he lost because the ED physician did not spend enough time with the patient.
Careful documentation is critical
Of course, medicine is an important part of any malpractice case, and careful documentation can bolster your defense, adds Arthur L. Diskin, MD, FACEP, vice president and global chief medical officer for Royal Caribbean Cruise Lines, who formerly oversaw the management of numerous ED physician groups and was a client of Nosich. "It's critical to document the content of your conversation, whether with the patient, the family member, or the attending physician," Diskin says. "With this type of complex case, especially involving a critical patient, what the doctor writes in the medical record is really far more than just somebody putting their signature on a piece of paper."
So, for example, the physician should document to the attending how seriously ill the patient is and all the medical findings. "That's much better than 'discussed case with Dr. Smith, who will admit patient,'" Diskin notes.
There is no 'I' in ED team care
Winning a malpractice case takes more than success in the courtroom: It also requires ongoing best practices on the part of the ED manager to educate and prepare the staff for possible lawsuits. One important thing for the manager to remember is that they are not an island, offers James J. Nosich, Esq., of the Coral Gables, FL, law firm McGrane Nosich.
"They have to understand that their role is limited in the ED to the team they have," Nosich explains. "They need to do their best to always try to educate physicians, nurses, techs, and midlevel providers that they are all on the same team and they all have one goal in mind, rather than trying to do it all themselves or blame other people on the team." More time should be spent "on having the best team you can," he says.
How to document
Teach your staff to document in a factual and nonconfrontational manner, says Arthur L. Diskin, MD, FACEP, vice president and global chief medical officer for Royal Caribbean Cruise Lines Ltd., who formerly oversaw the management of numerous ED physician groups and was a client of Nosich. "Document thoroughly the facts and sequence of events, without documenting arguments with other medical people in the medical record, like, 'I called the guy five times, and he still did not respond to my call,' or 'I told him the patient needed to be admitted, and he said I was an idiot,'" he says.
Nosich cautions, however, that great documentation does not outweigh great teamwork. "There have been cases where there was great documentation, and the ED still got sued, and vice versa," he says. "But remember: You don't control what the nurses do; but if they do something bad, you can get sucked into a suit, so everybody has to be on the same page and work on the same team."
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