Excessive workload coming up at trial — Plaintiff attorneys are calling it ‘factory medicine’
Forty percent of attending physicians reported that once a month they have an unsafe workload that could lead to patient harm, according to a recent survey.1
“Clinician workload is only getting worse because so far, the main way health reform reduces costs is to pay providers less. Yet productivity has not improved,” says Peter J. Pronovost, MD, PhD, FCCM, one of the study’s authors and senior vice president for patient safety and quality and director of the Armstrong Institute for Patient Safety and Quality at Johns Hopkins Medicine in Baltimore, MD.
As a result, says Pronovost, nurses are now caring for seven rather than five patients, and hospitalists and intensive care unit physicians are caring for 15 rather than 10 patients. “These workloads often exceed a safe threshold,” he warns.
Seven percent of the 506 hospital-based physicians surveyed said their heavy workload likely led to a patient complication, and 5% reported it probably caused a death over the past year.
Hospital leaders should have a mechanism to monitor workload or perceptions of workload, and they should evaluate if reduced staffing is truly saving money, advises Pronovost. “It may be that the increased patient complications, staff burnout, and turnover associated with excessive workload exceed the savings from reduced staffing,” he says.
The theme of “the overworked doctor” is coming up more often in medical malpractice litigation, says Bruce H. Nagel, Esq., an attorney with Nagel Rice in Roseland, NJ. “One of the recurring themes in our cases is, ‘Has the doctor done a thorough and complete examination and spent sufficient time with the patient to discharge their duty?’” Nagel says. “We are always looking at timelines and the amount of patients seen by the doctor.”
Jurors likely will sympathize when they learn the entire examination took only a few minutes after the patient waited for more than one hour to be seen, for example. “Some offices book patients for only six minutes,” Nagel says. “The reality is that doctors are seeing more and more patients every day because the insurance carriers are under-reimbursing them.”
Computerized charting makes it easy for the plaintiff’s attorney to point out to the jury that the doctor only saw the patient for a few minutes, and this argument is often persuasive, reports Nagel. “You now have a very defined timeline. If the patient has to wait to be seen and then the doctor only sees them very briefly, that strikes a chord with most jurors,” he says.
Juries won’t sympathize with MDs
Plaintiff attorneys can argue that excessive workload was part of the reason a physician wasn’t providing reasonable care, says Steve Levin, JD, an attorney with Levin & Perconti in Chicago.
“We have tried cases where what’s really going is factory medicine,” he says. “Patients are just being shuffled in and out of the office. If you are seeing too many patients in a specific period time, you cannot act as a reasonably careful doctor.”
Levin has seen physicians and nurses candidly acknowledge being overworked and understaffed during depositions. “They will sometimes admit it and say they are doing the best they can with limited resources,” he says.
Juries might sympathize with nurses forced by employers to care for more patients than they have time for. “We then gear the case toward the ownership or administration, as opposed to the direct care providers,” Levin says. “But if physicians allow themselves to be in a situation where they were not able to provide care in a reasonable manner, a jury is going to hold that against them.”
1. Ichtalik HJ, Hsin-Chieh, Pronovost PJ, et al. Impact of attending physician workload on patient care: A survey of hospitalists. JAMA Intern Med 2013; doi:10.1001/jamainternmed.2013.1864.
• Steve Levin, JD, Levin & Perconti, Chicago. Phone: (312) 332-2872. Email: email@example.com.
• Bruce H. Nagel, Esq., Nagel Rice, Roseland, NJ. Phone: (973) 618-0400. Fax: (973) 618-9194. Email: firstname.lastname@example.org.
• Peter J. Pronovost, MD, PhD, FCCM, Senior Vice President for Patient Safety and Quality, Director of the Armstrong Institute for Patient Safety and Quality, Johns Hopkins Medicine, Baltimore, MD. Phone: (410) 502-3231. Fax: (410) 502-3235. Email: email@example.com.
Patient refused care? Lawsuit might not happen
After an elderly man was diagnosed with rectal cancer, his son alleged a delay in diagnosis. “He threatened to get a lawyer and sue the doctor for not ordering the proper diagnostic exams that would have detected the cancer earlier,” says Denise Shope, RN, BSN, MHSA, ARM, CPHRM, a risk management consultant at RCM&D, a Baltimore, MD-based insurance brokerage firm.
When the medical record was reviewed, however, the physician had clearly documented that the competent patient had refused the colonoscopy exam on multiple visits to his primary care physician. “The doctor repeatedly had detailed his conversation in writing, and his patient knew of the risks,” says Shope. “When the patient’s son and his lawyer reviewed the medical record, the case and complaint fell silent.”
If a case is dismissed or dropped early, and there is no payment or indemnity made on behalf of the defendant doctor, then there is no required reporting to the National Practitioner Data Bank, says Shope. “Obviously, the longer the case is in litigation, the more costly the case in terms of court fees, expert testimony, and attorney fees,” she adds.
Shope says a well-documented informed consent or refusal of care, along with the patient’s acknowledgement of receipt of educational materials, can make a plaintiff attorney reconsider pursuing a malpractice claim. “Plaintiff attorneys do not like to see non-complaint patients. It makes it more difficult to argue their case of negligence,” she says.
Shope says an example of good documentation of informed consent would be the completion of a well-written standard informed consent form, along with a complete progress note indicating the purpose, risks, benefits, and alternatives to the proposed treatment or procedure. She says physicians should include these items in their documentation:
• A list of any educational materials provided to the patient or the patient’s representative.
“This can be as simple as a one-page brochure, or as sophisticated as a DVD that patient watches in the physician’s office or takes home to view,” says Shope.
• Consent forms written in laymen’s language.
“These should be easy to comprehend,” says Shope. “A signed copy of the consent form can be provided to the patient or family representative.”
• The fact that patients were provided with an opportunity to ask questions at the time of consent.
“The physician should offer the opportunity answer any questions or concerns at any time going forward,” says Shope. “All of this should be captured in a well-written progress note in the patient’s medical record.”
• The physician’s explanation of the risks of the refusal and alternatives, along with the risks and benefits of the alternatives.
“The physician should never use disparaging remarks or comments regarding the patient’s refusal of care,” she says. “Labeling the patients as ‘stubborn’ or ‘stupid’ is not helpful and can be damaging if the record is ever presented to a jury.”
Every competent adult patient has the right to refuse care, says Shope. The physician has the duty to inform and explain the diagnosis, disease, treatment options, risks, and benefits of the proposed treatments and procedures, and the risks and benefits of the alternatives, and will be held to the “reasonable and prudent” standard.
“Good documentation of this process can only help the physician in the event of litigation,” says Shope. “It becomes difficult to defend the physician’s actions when the record is silent to the informed consent or informed refusal process.”
If a patient refuses the care recommended by the physician and subsequently has an adverse outcome as a result, it would be difficult to find a sympathetic jury to favor the patient/plaintiff, according to Shope. “Therefore, a plaintiff’s attorney may not want to pursue the negligence claim against the physician, or at the least, may avoid the failure to provide an informed consent allegation,” she says.