Apologies: Early Offers Mean Fewer ED Suits
Apologies: Early Offers Mean Fewer ED Suits
Unfounded claims aren’t settled, however
When a teenage patient presented to the ED at University of Michigan Health System (UMHS) in Ann Arbor with unexplained pain in her thigh, the emergency physician (EP) did all the appropriate things to make her comfortable, stabilize the situation, and get her a referral quickly to other specialists, but did not arrive at a definitive diagnosis.
After the orthopedic surgeon and sports medicine physician both missed sarcoma and the patient had her leg amputated, the patient’s family threatened to name the EP along with the other physicians in the ensuing lawsuit.
“Being careful not to criticize the others, we met with the parents, the patient, and their lawyer,” says Richard C. Boothman, the organization’s chief risk officer. At first, the patient’s father angrily blamed the EP for “starting the ball rolling in the wrong direction,” and missing an opportunity to make a diagnosis as quickly as possible.
The EPs involved and UMHS risk managers carefully explained the role that emergency medicine plays in health care, and why the expectation isn’t that the EP will always get a definitive diagnosis.
“The family was ultimately moved by our lack of defensiveness and our willingness to listen to the horrors of a bright, active teenager losing her leg,” he says. “Our doctors’ willingness to express their own sadness at the outcome, without feeling the need to be guarded on a human level, were important components to that conversation.”
The EP’s obvious empathy for the patient and family, even in the face of the initial hostility and accusations, “really made all the difference,” says Boothman. “Our emergency medicine doctors were not included in the ensuing lawsuit. Interestingly, the other doctors were cross-examined at trial about their refusal to meet the family like we did.”
Savings from Early Settlements
Average litigation costs for ED malpractice cases are approximately $105,000, compared to average settlement costs of $60,000, reports Boothman. “Settling meritorious cases proactively, without the need for litigation, saves a lot of money,” he says. “We incur far less cost, of course, with no attorneys’ fees on our part.”
Since UMHS’ error disclosure program began in 2001, average monthly costs have decreased for total liability, patient compensation, and non-compensation-related legal costs.1,2
With early settlements, plaintiff’s lawyers haven’t run up exorbitant costs, and may reduce their fees if they don’t have to litigate, adds Boothman. “There is a time value and no risk to a settlement that makes both litigants and lawyers willing to take less early,” he says.
“Medically Dishonest” Claims
Boothman says that the organization occasionally sees “medically dishonest” ED claims, which aren’t settled even for amounts considered to be “nuisance value.” For instance, patients sometimes threaten to sue EPs for failing to order head CT scans for children who present with a relatively mild head trauma.
“We know now that close clinical monitoring is as good as a CT scan for a child who took a tumble off his or her bike, in the surveillance for a possible subdural hematoma,” says Boothman.
Boothman says lawsuits have been avoided with non-meritorious cases like this after the EP explains upfront what happened and why before anyone has invested money in litigation.
“Occasionally over the years, we’ve been forced to defend and litigate emergency medicine cases that were supported by dishonest experts willing to testify for the patient,” he adds. “Most seem to be situations in which an ‘expert’ tries to attach more responsibility to the ED than is justified.”
One such case involved the death of a patient who presented with chest pain and shortness of breath, who fell at home as he was putting up Christmas lights and fractured ribs and his skull. He was admitted and three days later, as nurses were ambulating him, he suddenly collapsed and died from a massive pulmonary embolus (PE).
“The patient’s daughter was a physician, and one of the most unreasonable, hostile family members we’ve ever tried to reason with,” says Boothman. The claim was that the EP should have worked the man up for a PE, despite having a clear basis for his chest pain and shortness of breath.
An EP expert for the plaintiff testified that it is incumbent on EPs to rule out the most life-threatening diagnosis among the differential diagnoses first, no matter how implausible it seems at the time and no matter what the other evidence shows.
“He said that we should ‘assume PE unless proven otherwise,’ and that Doppler testing and a spiral CT should have been done,” says Boothman. “We felt the claim was completely unjustified, and the expert’s criticisms a dishonest depiction of what most emergency medicine physicians would have done under the circumstances.”
The case did proceed to litigation, and was settled for a very modest amount of money based on some nursing issues involved in the man’s inpatient care, he reports.
Patients Given Context
Boothman says that in his experience, EPs are skilled at making patients feel like they’ve bonded with the doctor, even when the actual interaction is relatively brief. “To make a patient feel like he or she is the only person who matters at that interaction, no matter how busy the ED is at that point in time, is a gift that many excellent ED physicians have,” he says. “And it makes a huge difference when something goes wrong.”
Boothman says that context is important when UMHS EPs disclose an error to the patient. They explain what they were worried about at the time, the pros and cons of every alternative to care or differential diagnosis, why they chose the path they did, and why it seemed reasonable under the circumstances.
“These are all important factors in doing a disclosure, and even more important in emergency medicine circumstances,” he says. “Just telling a patient, ‘Sorry, we blew it,’ without context, does more harm than good.”
EPs don’t say anything to the patient that they are not prepared to say in public, or even in a courtroom, adds Boothman.
“We view this as a process, not a single conversation, and almost never a conversation that occurs in the heat of the moment,” he says. “Few cases turn out as they first appeared. We always take time to investigate before committing ourselves one way or the other.”
References
1. Boothman RC, Imhoff SJ, Campbell DA. Nurturing a culture of patient safety and achieving lower malpractice risk through disclosure: Lessons learned and future directions. Front Health Serv Manage. 2012;28(3):13-28.
2. Kachalia A, Kaufman SR, Boothman R. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. 2010;153(4):213-221.
Sources
For more information, contact:
- Richard C. Boothman, Chief Risk Officer, University of Michigan Health System, Ann Arbor. Phone: (734) 764-4188. E-mail: [email protected].
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.