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Rick Bukata, MD
President of The Center for Medical Education

New Medicolegal Risks in the ED

by Greg Henry, MD

Greg Henry, MD

Medicolegal issues and the fear of lawsuits are the horror show of gifts that just keep on giving. Truth and fiction are often confused so this chapter hopes to straighten out a few urban myths and tackle some new areas of concern. Mr. Cal Chaney, General Counsel and Associate Executive Director of Policy for the American College of Emergency Physicians, was consulted for the production of this chapter. While there is an overabundance of articles to reference in most of the topics in this course there are precious few articles based on real science that are published on emergency medicine malpractice.

Some background is needed. Brown, et al, (Academic Emergency Medicine 17[5]:553, May 2010) published “An Epidemiological Study of Closed Emergency Department Malpractice Claims in a National Database of Physician Malpractice Insurers.” The authors looked at 11,529 closed claims which in some manner have to do with emergency medicine and are included in these cases. This is the database run by the PIAA (Physicians Insurance Association of America) for the period 1985 to 2007. It is estimated that this may represent one half of the emergency cases for that 22-year period of time. Although not totally representative of all cases, they draw some interesting conclusions.

  1. Misdiagnosis remains the primary source of malpractice litigation included in 37% of these cases.
  2. Failure to supervise was cited in 7% of the cases but is not linear. There were very few such cases in the early years and this problem is rising rapidly. The rise in advance practice clinicians (APCs) (PAs and NPs) will exacerbate this problem until there is some consensus as to what constitutes supervision — stay tuned.
  3. Sixty percent of cases were closed without indemnity payment, but for those cases the defense costs were substantial and are rising faster than expected. To be named is still to lose. We are only talking about the amount. Average indemnity payment — fully adjusted for inflation — went from $115,000 in 1986 to $348,000 by 2007 for the physician portion of the payment. This may reflect a growing unwillingness of hospitals to overly participate in settlements.
  4. Most cases involve serious injury or death. Nuisance cases seem to be on the decline.
  5. AN EPIDEMIOLOGIC STUDY OF CLOSED EMERGENCY DEPARTMENT MALPRACTICE CLAIMS IN A NATIONAL DATABASE OF PHYSICIAN MALPRACTICE INSURERS Brown, T.W., et al, Acad Emerg Med 17(5):553, May 2010 
    METHODS: In this study from Johns Hopkins University, 11,529 closed malpractice claims involving adult patients in the ED that were included in the database of the Physician Insurers Association of American during the period 1985 and 2007 were retrospectively reviewed. RESULTS: Most of the claims (81%) were attributable to physician specialties other than emergency medicine. Diagnostic error and improper performance of a procedure were the most common claims categories (37% and 17%, respectively); in 18% of the claims, no error was identified by the insurer. The conditions most commonly associated with claims were acute myocardial infarction (5%), fractures (6%) and appendicitis (2%). Claims associated with AMI had the highest paid-to-close ratio (42%) and the highest average indemnity ($317,281), and most AMI claims involved diagnostic error. Only 7% of the claims proceeded to trial and, of these, the verdict favored the defendant (physician) in 85% of cases. Most claims (64%) were withdrawn, dropped or dismissed without payment to the plaintiff; 29% of claims were settled with payment to the plaintiff. Claims involving patient death most often involved AMI, chest pain not further defined, aortic aneurysm, symptoms involving the abdomen or pelvis, and pulmonary embolism. From 1985 to 2007, there was a downward trend in the number of closed claims and paid claims per year, but an increase in the average indemnity payment ($115,952 in 1985 vs. $384,603 in 2007) and expenses involved in defending a claim (from $12,693 to $30,810). CONCLUSIONS: Efforts to improve coordination of care with other specialists in the ED and improve diagnostic accuracy for high-risk conditions might reduce malpractice exposure in the ED. 36 references (twbrown86@gmail.com for reprints) 9/10 — #21

Pediatrics seems to follow the same course as adult emergency medicine as expressed in the article by Najaf-Zadeh.

  1. EPIDEMIOLOGY OF MALPRACTICE LAWSUITS IN PAEDIATRICS Najaf-Zadeh, A., et al, Acta Paed 97(11):1486, November 2008 
    METHODS: These French authors reviewed six studies involving 6,742 pediatric malpractice lawsuits alleging medical error, and an additional 227 cases reported in the “Legal Briefs” section of “Pediatric Emergency Care.” RESULTS: The incidence of pediatric medical malpractice payments was observed to be about half that of cases involving adults (5.6 vs. 10 per 100,000 visits). The most common diagnoses varied by patient age. Up to the age of two years, they included meningitis, gastroenteritis, pneumonia and impaired neonate. The most common diagnoses included meningitis, gastroenteritis, appendicitis, intestinal obstruction and fractures between the ages of three and five years; appendicitis, meningitis and trauma/fracture at age six to eleven; and appendicitis, testicular torsion and trauma/fracture in older children. Death and major disability was most common in cases involving children below the age of five (91% vs. 63% in older children). Cases that most often involved fatal outcomes included myocarditis, intestinal obstruction, gastroenteritis, pneumonia and sepsis. Entities most often named in the 227 cases reported in “Pediatric Emergency Care” included hospitals (35%), emergency physicians (33%), office-based or hospital pediatricians (25%) and family physicians (16%), and the most commonly cited “misadventures” included diagnostic error (48%), treatment delay (18%), medication error (12%) and failure to consult or refer (11%). From 23% to 68% of the cases resulted in compensation to the patients and/or their families, and the average indemnity payment ranged between $160,000 and $2.2 million. CONCLUSIONS: Pediatric malpractice suits frequently involve selected diagnoses in infants and small children. The ED is a predominant setting. In ambulatory practice, failure to refer to a hospital was an important source of litigation. 31 references (amartinot@chru- lille.fr — no reprints) 4/09 — #21

QUESTION: WHAT IS THE AMERICAN COLLEGE OF EMERGENCY PHYSICIANS DOING TO POLICE THE QUALITY AND VERACITY OF EXPERT WITNESS TESTIMONY IN EMERGENCY MEDICINE LITIGATION?
In matters requiring technical expertise it is required in all states that the jury be schooled by expert witnesses from both sides of the question at issue. Some states require a board certified emergency physician to give testimony either for or against an emergency physician. Some states only require than an expert has a pulse and a license to practice medicine somewhere, which then allows them to speak to the issues at hand. ACEP has been involved with setting ethical standards for testimony by its’ members. The ACEP Expert Witness Reaffirmation Statement and the ACEP Policy Statement, Expert Witness Guidelines for the Specialty of Emergency Medicine, are available on the ACEP website (www.ACEP.org).

Since the original policy was passed by the ACEP Board of Directors in 1995 until September 11, 2013 there have only been 34 complaints acted upon by the ethics process according to in-house counsel Cal Chaney. Of those, 14 failed to meet procedural standards and were not put forward through the completed process. Seven complaints were withdrawn with no information as to the reasons. Of the 13 physicians who went through the process, 6 were considered to not have violated the ethics code of the college and were dismissed. Seven physicians were found to have violated the code and received letters of censure.

On October 11, 2012, the Directors found the testimony of Paul D. Blaylock, MD, JD, FACEP so egregious as to warrant a major violation. He was expelled from the College and the expulsion was formally posted in ACEP News, the January 2013 edition. This is the only such person who has been so disciplined by actual expulsion from the College. It has been pointed out that no defense experts have been put through the process, but it only takes one dues-paying member to challenge any testimony given. Cal Chaney has stated that ACEP will process all complaints on experts without regard to defense or plaintiff work with equal zeal as long as a member has signed the complaint.

QUESTION: WHO SETS THE STANDARD OF CARE?
In general the “standard of care” is that which a physician of like or similar training would do under like or similar circumstances. Since the 1970s the “Community Standard” has fallen to the wayside and a more national standard is used. What is done in 2013 in small town Arkansas should be similar to small town Michigan or Ohio. Similar types of hospitals should be giving similar care without regard to the state. All Federal cases follow the “Daubert Standard” in determining the limits of expert testimony. (“Daubert v. Merrill DOW Pharmaceuticals, 509 US 579. 1993”). This standard requires that the science expressed must represent the thinking of a substantial part (never defined) of the scientific community. The majority of states have also adopted the Daubert Standard replacing the much looser “Frye Rule” which allowed for considerably more “creative” testimony.

QUESTION: CAN THE GUIDELINES OF PROFESSIONAL SOCIETIES INDEPENDENTLY SET THE STANDARD OF CARE?
This question has plagued both the houses of law and medicine since guidelines first started to be written. ACEP policy is frequently put before expert witnesses as to what should have been done. It is nothing less than frightening to think physicians must follow every policy every time. It secondly assumes that the diagnosis is known at the beginning of the encounter. Does the 28-year-old with epigastric pain require the chest pain policy or the abdominal pain policy? Each patient needs to be approached on an individual basis. This is an area constantly under attack by the plaintiffs’ bar. A recent case illustrates how close the emergency medical community came to losing this fight. It has always been the contention of most that standard of care in a particular situation can only be set by proper expert testimony at the time of trial.

Jilek v. Stockson — originally a Wayne County, Michigan case, appealed to Michigan Court of Appeals, and then to the Michigan Supreme Court. In Jilek, a patient was seen in a hospital-owned urgent care facility. The billing was done with emergency medicine codes so the plaintiff argued it should be treated as an emergency medicine standard of care for chest pain patients.

The physician in the case won at the trial court level, but on appeal plaintiff claimed that the ACEP Chest Pain Policy should be the standard of care for all chest pains. The Michigan Court of Appeals sided with the plaintiff and ordered a new trial with ACEP Policy as a “res ipsa”* standard. This action was appealed by the defense to the Michigan Supreme Court with the only question being “what sets the standard of care”? On straight party lines a split decision overturned the Court of Appeals and supported the original trial court decision in favor of the defense. This was a huge win for not only emergency medicine but all specialties. The dangers of clinical policies are obvious. What they mean and what they require will continue to be a major point of attack by the plaintiffs’ bar.

Res ipsa (“the thing speaks for itself”) — One is presumed to be negligent if one had exclusive control of whatever caused the injury, even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.

QUESTION: IS THE “MAJORITY OF PRACTITIONERS” PLAINTIFF’S ARGUMENT ALWAYS “RIGHT” IN COURT?
There are multiple thoughts on defense. The “majority of practitioners” theory is best countered by the “two (or multiple) schools of thought” theory. If a “respectable minority” of doctors do something one way, there may be genuine validity to their approach. All progress in medicine requires doing something that has never been done before. This reversal of establishment practice haunts us all and it is often tough to know when the tide has turned in care. Prasod et al illustrates this problem in January 2012.

  1. REVERSALS OF ESTABLISHED MEDICAL PRACTICES: EVIDENCE TO ABANDON SHIP Prasad, V., et al, JAMA 307(1):37, January 4, 2012 
    Although replacement of good medical practices with better ones represents an ideal scenario, all too often physicians are encouraged to continue using medications or procedures that offer no advantage over prior treatment options. The authors, from Northwestern University, the University of Chicago and Stanford, comment on this phenomenon, citing examples of persistence of use of certain interventions long after well-designed trials reported that they were not beneficial. Clinical trials often address trivialities or are designed to bolster the sales of specific products, and rarely rigorously address the merits of long-standing clinical practices that would best be abandoned. A study of 35 trials of established clinical practices published in 2009 reported evidence that contradicted current practice and constituted a reversal in nearly half of the trials (46%). Most “standards of care” are not subjected to rigorous scientific validation that focuses on patient-oriented outcomes rather than surrogate variables. Furthermore, once the purported value of a medical intervention has been disproven, physicians are often very reluctant to abandon the practice, particularly if it is a lucrative one. Reversal of established practices implies that patients receiving disproven interventions have been subjected to potential harms without meaningful benefits, and has the potential to undermine confidence in the medical profession. These authors cite the importance of careful scrutiny of current clinical practices, and call for the strengthening of standards for new drug and device approval, requiring proof of patient benefit, ensuring that researchers investigating new products have no relevant conflicts of interest, and prohibiting manufacturers from funding studies of their own products. 10 references (jioannid@stanford.edu — no reprints) 7/12 — #11

The “Clinical Innovation” defense might apply when there is really no right answer or general consensus, but beware. One must be very much attuned to the fact that there is a difference between innovation, experimentation, and just plain crazy. The ultimate in the fight as to what constitutes standard of care is the TPA debate. There are no good answers here and the current ACEP Clinical Policy is part of the lack of the consensus on this issue.

  1. EMPIRICAL CHARACTERISTICS OF LITIGATION INVOLVING TISSUE PLASMINOGEN ACTIVATOR AND ISCHEMIC STROKE Liang, B.A., et al, Ann Emerg Med 52(2):160, August 2008 
    BACKGROUND: Despite advocates of tPA treatment for ischemic stroke, many emergency physicians and emergency medicine organizations do not support its widespread use. Medicolegal concerns about the administration of tPA for stroke might represent a barrier to its use. METHODS: The authors, from California Western School of Law in San Diego and the UCSD School of Medicine, reviewed 33 cases involving tPA for stroke found in a review of seven databases. RESULTS: The number of cases involving tPA and stroke increased from 5 during the initial five years after FDA approval (1996–2001) to 28 cases in the five-year period 2002–2007. Just over half the cases (58%) involved emergency physicians as defendants; the six cases (18%) involving neurologists also involved emergency physicians. A neurology consult was not obtained in ten of the 22 cases involving patients presenting to the emergency department. Failure to diagnose or delay in diagnosing the stroke was a cause of the action in two- thirds of the cases (67%) and failure of the treating physician to provide tPA was cited in 29/33 (88%). Injury caused by tPA was cited in only three cases (9%). Most of the cases (21/33 or 64%) were decided in favor of the defendants (physicians). Two of the twelve verdicts decided in favor of the plaintiffs involved claims that tPA treatment resulted in injury (verdicts in these two cases were $315,000 and $30 million). Overall, payments to plaintiffs ranged between $100,000 and $30 million. CONCLUSIONS: In this series of legal cases, failure to diagnose ischemic stroke and treat with tPA was more common than adverse effects of tPA for stroke. 10 references (baliang@alum.mit.edu for reprints) 1/09 — #10

QUESTION: WHAT’S NEW IN INFORMED CONSENT?
Informed consent and informed refusal are two sides of the same coin. In the 2008 New York case of Prasad v. New York Presbyterian Hospital, the “my brother’s keeper” doctrine won out. Mr. Prasad was taken to the ER having suffered a major trauma from a significant fall. There was a question of a head injury. As part of a full trauma workup the physician did a rectal to which Mr. Prasad protested. The physician was of the opinion that the patient was in no condition to make decisions and proceeded ahead. The patient went on to recovery and sued New York Presbyterian Hospital both civilly and criminally. The criminal charge was dropped. In the civil matter the physician actions requiring substitute judgment were sustained in court. This is good for all of us but things can get murkier.

What do you tell a patient or family about the potential harm of a CT scan? The growing knowledge base on long- term effects of radiation is difficult to quantitate. In the article by Berlin it is pointed out that a Kansas Federal Court stated the long-term risks of diagnostic radiation are not based so much on fact and should be considered a theory.

  1. INFORMING PATIENTS ABOUT RISKS AND BENEFITS OF RADIOLOGY EXAMINATIONS UTILIZING IONIZING RADIATION: A LEGAL AND MORAL DILEMMA Berlin, L., J Am Coll Radiol 8(11):742, November 2011 
    The author, a radiologist from NorthShore University HealthSystem in Skokie, IL, comments on the need for informed consent relating to cancer risk prior to exposure to ionizing radiation from diagnostic imaging. Explanation of straightforward, well-documented and immediate complications of radiologic imaging, such as the risk of reactions to contrast administration, is relatively simple because objective information on the frequency of these complications is widely available. The importance of explaining these potential complications and obtaining informed consent is not contested. However, it is more difficult to quantitate the risk of a future cancer resulting from exposure to ionizing radiation from radiologic examinations. To date, estimates of this risk have been based on theory, conjecture and extrapolation. Individual state courts have generally held that not all conceivable risks must be disclosed, but only those “material risks” that might be significant to a reasonable person for which definitive incidence data are available. According to a Kansas federal court, the determination of cancer risk due to low doses of radiation from diagnostic imaging is not based on fact but rather on theory or hypothesis, which “cannot be used to establish legal cause.” In fact, some experts contend that CT scanning might not be associated with any risk at all, noting that a requirement for informed consent prior to imaging might engender more harm than good, dissuading patients from undergoing needed imaging studies. This author concludes that while there is no question about the need for informed consent based on facts, there appears to be no immediate solution to the dilemma regarding the duty to disclose a potential but unproven cancer risk. 12 references (lberlin@live.com — no reprints) 8/13 — #30

Brink, et al, take a different view of this physician responsibility. The question of who must inform the patient (emergency doc vs. radiology) is never really discussed.

  1. INFORMED DECISION MAKING TRUMPS INFORMED CONSENT FOR MEDICAL IMAGING WITH IONIZING RADIATION Brink, J.A., et al, Radiology 262(1):11, January 2012 
    The authors, coordinated at Yale University, challenge the concept of “informed consent” prior to medical imaging with ionizing radiation and make the case for “informed decision making” as a preferable alternative. Written informed consent serves as a legal document attesting that a patient has been informed of the risks and benefits of a given procedure or intervention, but true informed consent is not achievable in this situation as the precise risk of exposure to low levels of ionizing radiation from medical imaging has been estimated but not clearly defined. The potential effects of patient age and gender, the type of imaging to be performed, and the risk of cancer unrelated to imaging in the general population add to the complexity of the issue. The authors point out that the risk of death due to a multitude of common activities appears to exceed that of death due to cancer caused by exposure to medical imaging, yet informed consent is not required for participation in these activities. They further note that the act of signing an informed consent form does not ensure that a patient understands the information provided, since multiple studies have reported that health-related materials far exceed the average reading level of adults in the US and that patients often fail to read such documents in their entirety. The process of informed decision making, on the other hand, requires education of patients and a subsequent dialogue about risks and benefits, and is likely to result in a greater understanding of the issues on the part of patients. Educational materials regarding the risks and benefits of imaging include the Image Wisely and Image Gently projects. Information is available at www.imagewisely.org, www.imagegently.org, and www.radiologyinfo.org. 22 references (james.brink@yale.edu — no reprints) 8/12 — #29

As always, psych patients represent a major question as to the ability to give consent. Owen in 2008, publishing in the British Medical Journal, contends that mental incapacity and psychiatric disease are not always to be found in the same patient. Some people are crazy but neither dangerous nor stupid. He takes the radical position of suggesting that physicians should assess the patients.

  1. MENTAL CAPACITY TO MAKE DECISIONS ON TREATMENT IN PEOPLE ADMITTED TO PSYCHIATRIC HOSPITALS: CROSS SECTIONAL STUDY Owen, G.S., et al, Br Med J 337:448, June 2008 
    BACKGROUND: Provisions within the legal system to ensure patient autonomy with regard to decisions about medical treatment may conflict with other provisions regarding the involuntary treatment of mental disorders. Both are impacted by the concept of mental capacity. METHODS: In this British study, mental capacity was formally assessed in 350 consecutive patients (mean age 38, 58% male) admitted to a psychiatric hospital, using a combination of clinical evaluation and the MacArthur competence assessment tool. RESULTS: Forty-four percent of the admissions were involuntary. The overall prevalence of mental incapacity was 60%. Incapacity rates were high in patients who were admitted involuntarily (86%) and in those diagnosed with psychotic illness (75%), schizophrenia (81%), or the manic phase of bipolar disorder (97%). Rates were much lower in those diagnosed with personality disorder (4%), the depressive phase of bipolar disorder (25%) or depression (31%), and in those who were voluntarily hospitalized (39%). CONCLUSIONS: Mental incapacity is frequent, but not universal, in patients admitted for psychiatric reasons. As such, mental capacity should be assessed in patients with apparent psychiatric disorders before it is assumed that they cannot make rationale decisions regarding the advisability of drug treatment or hospital admission. 9 references (m.hotopf@iop.kcl.ac.uk — no reprints) 11/08 — #14

And finally, Appelbaum, in the New England Journal, thinks we should get a psychiatrist to help out on capacity. He clearly doesn’t understand what emergency physicians do, their backup, or the fact that psychiatrists don’t know anything more than ED physicians about the question of capacity. Really, this is on the verge of insulting.

  1. ASSESSMENT OF PATIENTS’ COMPETENCE TO CONSENT TO TREATMENT Appelbaum, P.S., N Engl J Med 357(18):1834, November 1, 2007 
    Many medical inpatients are incapable of providing informed consent, a fact frequently missed by their providers. The author, from Columbia University (who has received fees generated by sales of a proprietary “assessment tool”), reviews the determination of patient competence for informed consent. Informed consent requires disclosure of the nature of the patient’s condition and the purpose of the proposed treatment, the risks and benefits of the proposed and alternative treatments, and discussion of the option of no treatment. Legal standards regarding patient decision-making capacity involve the ability of the patient to communicate a choice, to understand the information, to appreciate the consequences of the situation, and to reason regarding treatment choices (sample assessment questions are provided). The reliability of unstructured assessment of competence by physicians has been found to be poor. Screening with the MMSE may help (scores below 19 are likely to be associated with incompetence while patients scoring at least 23 to 26 are likely to be competent). Use of a formal instrument is suggested when assessment is difficult or when the courts are likely to be involved. A psychiatry consult may be helpful for patients with depression or early dementia. When treatment is not urgently required, efforts should be made to identify and treat potential underlying causes of the incompetence/impairment. If necessary, “substituted consent” should be sought from surrogate decision makers (usually family members), although in an emergency the physician should provide care that a “reasonable person” would be likely to accept. 52 references (psa21@columbia.edu) 5/08 — #18

QUESTION: WHAT ARE THE LEGAL LIABILITIES FOR THE ON-CALL SPECIALIST THAT ED DOCTORS CONSULT?
Attending physicians would always like to say that since they didn’t see the patient, they have no responsibility (i.e. doctor/patient relationship has not been established). Victor Cotton, MD, JD advises that in order for most physicians to be named in a malpractice suit there needs to be some doctor/patient relationship. Casual discussions between colleagues do not usually fall into this category. Dr. Cotton quickly points out, however, that this is not the case for physicians on-call for the emergency department. Even if they are just covering another doctor’s call or if they are supervising residents, they have established the necessary doctor/patient relationship, and can certainly be involved in the case.

  1. LEGAL RISKS OF “CURBSIDE” CONSULTS Cotton, V.R., Am J Card 160(1):135, July 1, 2010 
    “Curbside consults,” or informal discussions between physicians regarding the care of a patient, have become the subject of increasing medicolegal concern. The author (MD JD), from Law & Medicine (Hershey, PA), comments on liability aspects of curbside consults. Actual malpractice liability requires that the plaintiff prove the existence of a doctor-patient relationship with the accused physician. Such a relationship does not arise until the physician assumes a degree of responsibility for management of the patient, a condition that is not fulfilled by informal discussion between two physicians. Court rulings have stipulated that such informal discussion does not establish a relationship with the patient and have cited the importance of protecting the curbside consult as a means of encouraging communication between physicians. The curbside consult designation does not apply to physicians who are on-call for an emergency department who are contacted by an emergency physician regarding a particular patient, physicians who have agreed to “cover” for a colleague, physicians who are charged with the supervision of residents or midlevel providers, or physicians who are charged with the interpretation of diagnostic studies. In these cases, a doctor-patient relationship is established even though the physician might never come into actual contact with the patient. This author notes that, while plaintiffs might attempt to incorporate a physician providing a curbside consult into a malpractice lawsuit, such physicians are likely to prevail. He believes that outright refusal to participate in curbside consultation or the provision of vague and/or nonspecific information are inappropriate responses, and that physicians approached for a curbside consult should provide sufficient information as required for proper patient care. 24 references (victor@lawandmed.com — no reprints) 12/10 — #20

QUESTION: WHAT IS THE “NEW SOCIAL MEDIA” DOING TO EMERGENCY MEDICINE?
Assaults on privacy in the new electronic era are endless. There are 700,000 cameras in greater London, if you count the places of business. The casinos in Las Vegas are nothing less than spectacular at picking out card counters by facial recognition. The question really is what are the rights of both the patient and the providers in protecting privacy and having their privacy protected?

Providers are not allowed, under law, to inappropriately release information on a patient, but it happens. In an older paper from the database Ubel, et al, rode elevators in a Pittsburgh hospital. After only 259 “one way” trips 14% of these rides resulted in at least one inappropriate comment in which a patient could be identified. Doctors, nurses, etc. were all involved. It would be very interesting to see the results of a similar study done now.

  1. ELEVATOR TALK: OBSERVATIONAL STUDY OF INAPPROPRIATE COMMENTS IN A PUBLIC SPACE Ubel, P.A., et al, Am J Med 99(2):190, August 1995 
    BACKGROUND: Hospital elevators have been noted to be a setting in which patient confidentiality is frequently breached, but the nature and scope of this problem have not been extensively evaluated. METHODS: This study, from the University of Pittsburgh, examined the frequency of inappropriate comments in the public elevators of five hospitals. Four observers (with no medical identification badges) monitored conversation during 259 one-way “trips” spanning the entire route (at least ten floors) of the elevators. RESULTS: Inappropriate comments were recorded during 14% of the elevator trips. Eighteen comments violated patient confidentiality. Eleven of these 18 comments (61%) were made by physicians, and four were made by nurses or other clinicians. Eleven comments were considered to be “unprofessional” (i.e., could raise questions regarding the ability or desire of individuals to provide quality care). Seven of these (64%) were made by nurses or nonphysician clinicians, and three were made by physicians. Five of eight comments that raised questions about quality of patient care provided by the hospital were made by nonclinical hospital employees. Physicians and nurses were responsible for four of five comments that consisted of derogatory remarks about patients or their families. Although not part of the study, it was also noted that inappropriate comments were also overheard while waiting for elevators in public areas. CONCLUSIONS: These findings highlight the responsibility of all health care workers to make a concerted effort to ensure propriety and protection of patient confidentiality. 5 references 12/95 — #14

Quality assurance itself has the potential for inappropriate release of patient information. Saxton, et al, suggest ways in which Q/A materials should be handled and caution against any comments outside the proper setting.

  1. MEDICO-LEGAL ASPECTS AND CONCERNS IN QUALITY ASSURANCE IN THE UNITED STATES Saxton, J.W., et al, Best Pract Res Clin Gastroenterol 25(3):409, June 2011 
    Quality assurance programs, which involve the collection of information about the care of individual patients, are developed for the purpose of promoting patient safety and quality care. The authors, healthcare attorneys at Stevens & Lee (a Lancaster, PA, law firm) address concerns about the use of quality assurance data in medical malpractice litigation. The collection of quality and safety data is required by Federal and many state programs, and this information is often accessed by consumer advocacy groups and third-party payers. Assurance of confidentiality is essential to the effective collection of data, and statues have been developed at both the Federal and state level dictating the manner in which this information can be used. Data collected in the context of peer review activities are generally protected against disclosure in judicial proceedings, but peer review statues vary from state to state and peer review protection is not absolute. Peer review statutes are often quite narrow and are subject to vagaries of interpretation by state court judges. These authors suggest several strategies for use in protecting quality assurance data. Any requests for quality assurance data should be fulfilled by the provision of information already in the public domain. Subpoenas by government bodies should be challenged, citing the duty of confidentiality, statutory peer review protection and/or attorney-client privilege. Implementation of a well-defined and carefully structured quality assurance process, guided by attorneys familiar with state statutes and relevant case law, might provide the best protection of the data. The authors caution against discussion of the data outside of a strict and formal peer review venue, as such discussion has been held to waive the peer review privilege. 26 references (jws@stevenslee.com — no reprints) 7/12 — #17

Some examples of other instances in which patient confidentiality was breached:

  1. Five Californian nurses at one Southern California hospital were fired after discussions of specific patients on Facebook.
  2. In a malpractice case in Pennsylvania against an emergency physician, a member of the plaintiff’s family texted one of the jurors and asked to “friend” her on Facebook. The judge was not amused. The judge brought action against the woman for jury tampering, which is a criminal offense.
  3. In another California hospital two nurses were fired for sending an x-ray of a rectal foreign body (an intact light bulb) to their 500 BFF’s on Facebook. Unfortunately if you blow up the image the patient’s name could be read. Turns out he was a very rich man whose wife found out about his extracurricular actives and sought a divorce. He is suing the hospital for the $20 million dollars in costs for his divorce.
  4. A physician at Northwestern University Hospital in Chicago made a video of a 21-year-old young woman who was drunk out of her mind and acting bizarrely in the emergency department. He posted it on YouTube. This went viral and since this young woman was a high fashion model with expensive contracts she lost considerable work.

These examples only scratch the surface. What about patients doing videos of other patients? Patients who want to video EPs doing an exam on their child? The situations are endless and the answers are not clear.

KEY POINTS AND RECOMMENDATIONS

  1. Lawsuits are mostly won by emergency doctors but the fear of suits does drive irrational behavior.
  2. The PIAA database says misdiagnosis is still the number one cause of emergency medicine lawsuits.
  3. Supervision is a growing problem. Resident supervision remains stable, but supervision of mid-level providers has gone up with the number of these practitioners. This will become a major area of concern.
  4. The ethics process at ACEP is handling questionable testimony, but they are not mind readers. If physicians want action, send in the testimony.
  5. Standard-of-care in medico-legal actions is still set by expert testimony, but professional guidelines do pose a threat.
  6. If providers are going to do something no one else is doing, they better be right!
  7. Informed consent/refusal are sticky questions. Best advice is do what you would do for someone you loved or cared about.
  8. Physicians on the “on-call” list do have responsibilities to the patient.
  9. Social media is a privacy disaster. Release nothing about anyone except through proper hospital channels and to only those people who “need to know.”

Author:

Gregory L. Henry, MD, FACEP
Past President, The American College of
Emergency Physicians
Clinical Professor Department of 
Emergency Medicine, The University of Michigan