Tempted to Blame Colleague? It May Have Unintended Effect

Liability increases for all concerned

When Robert B. Takla, MD, MBA, FACEP, chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI, was named in a lawsuit early in his career, he was certain he hadn't breached the standard of care, though the same may not have been true regarding one of his emergency physician (EP) colleagues.

Five minutes before Takla's shift ended, a 67-year-old patient came in with a fever, so to move things along, Takla ordered a complete blood count, urinalysis, and chest X-ray, and documented this in the chart.

"That was the extent of my involvement with the patient," he says. The patient ultimately died of septic shock, and the only EP named in the subsequent lawsuit was Takla, not the EP who actually cared for the patient.

"I was mortified and angry, as I knew I had done nothing wrong. If there was anybody that the plaintiff's attorney should have been going after, it was a different EP," says Takla. "The defense said, 'Just trust me, you don't want to rat out your colleague. Let this run its course.'"

The case was settled for a nominal amount, and the second EP was never named in the case. Takla was instructed not to volunteer the information that he signed the case out to his colleague, and the plaintiff was never able to identify the other EP.

The more information that the plaintiff's attorney has, the more opportunity there is to prove there was negligence and deviation from the standard of care, warns Takla. "The less information there is available to them, the more difficult their job becomes," he says.

Getting two EPs involved in a case to point fingers at one another can only benefit the plaintiff, says Takla, because both are admitting that something went wrong. "The hospital is ultimately the deep pocket, but when you have the wide receiver pointing at the quarterback and vice versa, somebody is going to say, 'You guys messed up.'" he says. "The plaintiff doesn't care who pays."

At first glance, "finger pointing" may seem like a reasonable strategy, says Ben Heavrin, MD, assistant professor of emergency medicine at Vanderbilt University Medical Center in Nashville, TN, as shifting the blame onto another party may soften the perception that the accused was negligent, but it can quickly backfire.

"Finger pointing may make the accused appear overly defensive to a judge, attorney, or jury," says Heavrin. "This perception, in turn, could make the suggestion of provider negligence more plausible in their eyes." Finger pointing may result in additional unexpected testimony, as well, says Heavrin, and which may not be in a defendant's best interest.

"Finger pointing helps the plaintiff meet his burden of proving malpractice. It is the legal equivalent of shooting a ball into the opponent's basket," says Victoria L. Vance, JD, a health care attorney with Tucker, Ellis & West in Cleveland, OH.

Minimize Differences

Finger pointing happens when an individual defendant puts his or her self-interest ahead of the defense as a whole, explains Vance. "From a defense perspective, the preferred approach is that all the defendants 'fly in formation,' and mount a unified defense, making the plaintiff prove his case against each and every defendant," she says. Establishing that one defendant has committed malpractice is a tremendous burden, notes Vance, and proving that multiple defendants each breached the standard of care is "exponentially more difficult."

In some cases, it may become clear that the liability of some defendants may be greater than others. In that situation, the defendants are best served by focusing on defending their own conduct without being overtly critical of their co-defendants, Vance says.

"In situations where the liability profile among the defendants is disparate, and there are no signs of finger pointing, the plaintiffs' attorney will often concede that not all defendants are culpable, and non-liable defendants will be dismissed from the case," says Vance.

There are some situations where a fair and effective defense requires the defendant to be unapologetic about his or her role in the patient's care, however, and testify to facts that are unflattering to a co-defendant, adds Vance.

For instance, an EP may have given an order that was not followed, a nurse may have failed to properly monitor a patient and notify the EP of a significant change in his or her condition, or an ancillary service provider may have failed to notify the EP of a significant diagnostic result in a timely fashion.

"But even if the facts reveal separate liability exposures, very often the defendants can still find unanimity on issues of causation or damages," says Vance. "Again, the defendants, as a whole, benefit from such efforts to minimize their differences and focus on unifying themes."

Not in Patient's Chart

Ann Robinson, MSN, RN, CEN, LNC, principle of Robinson Consulting, a Cambridge, MD-based legal nurse consulting company, says that some situations are "almost impossible to avoid finger pointing, from a nursing perspective," such as an EP failing to listen to the nurse's report of a deteriorating patient, who finally goes into arrest.

"The nurse may have documented in the chart that the physician was made aware of the situation, and many minutes have gone by," she says. "If the timeline is examined retrospectively, it is clear that the nurse did everything possible to try to stave off this disaster."

The plaintiff's attorney would likely exploit this as a weak point in the defense, says Robinson, adding that it's a mistake for ED nurses to chart statements such as "the physician ignored what I told him."

She says that a better approach is to have a conversation with the EP or go up the chain of command so the conflict can be resolved immediately. If the ED nurse documents every attempt made to admit a patient he or she feels isn't ready for discharge, and the EP insists on discharging the patient anyway, the nurse should simply document the discussion that occurred, says Robinson. "That generally covers any potential liability that the ED nurse has, as far as their scope of practice, to be an advocate for the patient," she says.

Robinson reviewed a chart that stated, "Dr. advised, Dr. did not listen." "Try to keep in mind that what you are documenting will be read by other people, and will potentially be discovered during litigation," she says. "Ask yourself, are you writing a story as to what happened, or are you just airing grievances?"

If an ED nurse feels that the EP is making a mistake that could harm a patient, says Robinson, he or she has many avenues to utilize, including risk management, the ED medical director, physician quality assurance, and corporate compliance. "There are certainly ways to deal with that, but not in the patient chart," says Robinson. "The dispute is not relevant to that patient's care."

Provide No Opinions

If an EP says that the nursing staff was negligent, or an ED nurse says that an EP was negligent, says Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX, this could lead to such questions during a deposition as, "Have you complained about this before," or "If you knew this other health care provider was not doing a good job, did you do anything about it?"

"Plaintiff's attorneys love that, because they don't have to do any work. They just sit back and let the defendants criticize each other," says Stimmel. "The plaintiffs look like good guys because they are not saying too many negative things, and we damage ourselves. All of a sudden, everybody looks negligent."

If something was missed because a radiologist misread a film, an EP does have to point out that he or she depended on a radiologist. "However, when you chart in that situation, I would suggest you be very careful in the wording," says Stimmel. "Be very fact-specific, and provide no opinions."

Instead of charting "the radiologist missed a mass" or "the radiologist misread the film," as one EP did in a chart reviewed by Stimmel, the EP should chart, "Received the radiology report on 5/10 from Doctor A, which noted no mass. Patient returned one week later, second film noted mass." This way, you have charted defensively to protect yourself, without providing an opinion.

"The radiologist is going to be less angry with you," says Stimmel, adding that the radiologist may have a reasonable explanation why a particular mass could not be observed on a particular film.

Likewise, says Stimmel, if an ED nurse doesn't think an EP is responding appropriately, he or she should chart in quotes both what he or she told the EP and the EP's response. Sometimes, the ED nurse may chart a vague statement like, "I conveyed a status update to Dr. Smith, and he doesn't feel the patient needs a further exam."

In this case, says Stimmel, "Many times, the EP will say, 'The nurse didn't tell me all of the information. If I had that information, I would have made a different decision.'"

Years later, in the middle of a lawsuit, says Stimmel, no one will be able to swear exactly the information they conveyed to another health care provider. "Additionally, EDs have been dismissed from lawsuits when there was complete, detailed, accurate charting," she says. "I've seen EDs remain in a lawsuit through trial when there was finger pointing in the chart."

Sources

For more information, contact:

• Ben Heavrin, MD, Assistant Professor of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. E-mail: benjamin.heavrin@vanderbilt.edu.

• Ann Robinson, MSN, RN, CEN, LNC, Robinson Consulting, Cambridge, MD. Phone: (410) 463-3770. E-mail: ann2water@gmail.com.