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10 Questions to Determine Responsibility in Med-Mal Cases

“Hospitalist” refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients.

By Douglas W. Bowerman

Physicians known as “hospitalists” have emerged in recent years due to various economic, political, medical, and social forces on inpatient care, and now are the fastest growing medical specialty. Over the last 20 years, while the number of hospitalized patients and number of specialists available to care for them has remained stable, the number of hospitalists has increased from less than 1,000 to nearly 50,000.

Consequently, most hospitalized patients are now co-managed by both hospitalists and specialists. When you consider a malpractice case involving a hospitalized patient, you will face the task of determining what responsibility each physician held in your client’s medical care.

To clarify:

  • A “hospitalist” refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients.
  • A “specialist” denotes any physician that is not a hospitalist, such as a cardiologist, pulmonologist, general surgeon, or orthopedic surgeon.
  • A “service” refers to any group of specialists within the same specialty, such as the cardiology service; or a group of hospitalists.
  • A “consultant” is a physician belonging to a service who is not the attending of record, and can be either a specialist or a hospitalist.

The goal of this article is to discuss the specific details of cases I use to determine the responsibility each of the involved physicians held to a patient. This information will help you to make this determination yourself, or help you to better understand the advice given to you by your own experts regarding this issue.

I believe I am in a position to provide these opinions, having authored hospital bylaws regarding patient comanagement, and as the only physician in the United States board certified in Internal Medicine with a Focus in Hospital Medicine as well as Quality Assurance, while holding the position of Fellow with the American College of Physicians, the Society of Hospital Medline, the American Institute of Healthcare Quality, and the American Board of Quality Assurance and Utilization Review.

10 Questions to Determine Responsibility

  1. Who was the “attending physician” of record?

Although once the sole factor for determining duty to the patient, “attending of record” is now an almost meaningless title. This is due to the fact that many hospitals mandate all patients be admitted to the hospitalist service as the attending of record with the specialists serving as consultants, while other hospitals utilize written or verbal agreements between the hospitalists and specialists to determine which service will serve as the attending of record on a case-by-case basis. These policies exist regardless of the anticipated level of involvement (and subsequently level of responsibility) of the hospitalist and specialists in that patient’s care.

  1. Was there a prior doctor-patient relationship before the admission?

Consider two patients, both with rapid atrial fibrillation (a common heart arrhythmia typically managed by either hospitalists or cardiologists), admitted by a hospitalist and a cardiologist is consulted to co-manage these two patients. This particular cardiologist has never seen one of these two patients before, whereas the other patient is well known to this cardiologist from prior office visits. With this latter patient, the hospitalist will appropriately “take a back seat” to this cardiologist in terms of management decisions, given the preexisting relationship between that patient and specialist. If that patient suffers a bad outcome for whatever reason, the specialist would bear most, if not all of the responsibility compared to the hospitalist. With a bad outcome in the former patient however, the hospitalist and specialist may ultimately bear more similar responsibility, since each was equally capable of managing the atrial fibrillation, and likely would have been more equally contributing to the patient’s care.

  1. Is there an order or progress note in the chart designating which physician is managing each aspect of the patient’s care?

It is unexpected to find an order or a note in the chart specifying which aspects of care will be managed by each physician. If such notation is present though, it is difficult for a physician to later deny duty for aspects of care specifically identified in writing in the chart.

  1. Which physicians were available to the patient for a bedside evaluation versus a telephone or telemedicine consultation?

The continual ability for the bedside presence of the hospitalist can translate into a greater duty to the patient compared to a specialist who may only be available for bedside evaluations during certain limited hours, or only by telephone. If an adverse event is believed to have resulted from a physician’s lack of physical presence for the patient, the amount of responsibility held by that specialist will be influenced by the patient’s specific issue, by the time of day when the problem arose, and by what information was communicated (and documented to have been communicated) between the hospitalist and specialist about the problem.

The specialist’s absenteeism does not eliminate his or her duty, but it may increase the responsibility of the hospitalist since he or she now must be certain to provide the specialist with all the information needed to remotely manage the patient’s problem at hand, since the hospitalist is functioning as the specialist’s eyes and ears on the patient. The hospitalist needs to be certain to “see” and “hear” with the same acuity as the specialist, or at least have the ability to know the circumstances in which he or she can’t adequately fulfill that role, and communicate that concern to the specialist.

Ask:

  • Did the hospitalist communicate all the pertinent facts?
  • Did the hospitalist portray an appropriate level of concern or urgency of the patient’s situation to the specialist?
  • Did the physicians follow the advice given to each other during the conversation regarding subsequent care of the patient?
  • Did either physician coerce the other into exceeding his or her level of expertise, which then resulted in the bad outcome?

The answers to these will influence in the assignment of responsibility.

  1. Which physician did the nurses contact to address the patient’s problem?

Another indicator of physician responsibility to a patient is noting which physician the nurses call first to deal with a problem.

Consider a patient with a bowel obstruction co-managed by a hospitalist and a general surgeon. After admission, the patient develops increasing abdominal distention with more pain and vomiting. If the nurses first call the hospitalist, prompting an evaluation of that patient by the hospitalist, this is strong evidence that the hospitalist is managing the patient’s bowel obstruction. If this patient then develops a bowel perforation and dies, the majority of the responsibility would fall on the hospitalist. If the situation was reversed, the surgeon would bear the majority of the responsibility.

There is another important question that must be answered first to ensure an accurate assessment of this situation before assigning responsibility: “is the service that the nurses chose to call first consistent, regardless of the time of day and day of the week?” During nighttime hours, specialists are more apt to be at home asleep while hospitalists remain awake in the hospital. To avoid disturbing the specialist, a nurse may choose to summon a hospitalist to handle an acute issue, even if it is more appropriate for (and previously managed by) the specialist. The hospitalist receiving the request may not want to appear to the nurse as being lazy or unwilling to help, and thus addresses the patient’s problem as requested. The nurse and physician will likely document in the chart what transpired that night. This unintentionally establishes a precedent that the hospitalist service is managing that patient’s problem, despite the prior intent that the specialist would be handling that particular issue. This can cause an unintended shift in the level of responsibility during the course of a patient’s hospitalization.

To avoid disturbing the specialist, a nurse may choose to summon a hospitalist to handle an acute issue, even if it is more appropriate for (and previously managed by) the specialist. The hospitalist receiving the request may not want to appear to the nurse as being lazy or unwilling to help, and thus addresses the patient’s problem as requested. The nurse and physician will likely document in the chart what transpired that night. This unintentionally establishes a precedent that the hospitalist service is managing that patient’s problem, despite the prior intent that the specialist would be handling that particular issue. This can cause an unintended shift in the level of responsibility during the course of a patient’s hospitalization.

  1. Who had the ability to make the diagnosis?

Certain diagnoses are made by specialists after performing diagnostic procedures; for example, a gastric ulcer diagnosed by a gastroenterologist after performing an upper endoscopy. If a bad outcome results from the failure to diagnose an ulcer during the endoscopy, or due to a decision by the specialist not to perform an endoscopy despite the patient’s symptoms being consistent with a gastric ulcer, more duty would fall to the gastroenterologist since hospitalists do not perform endoscopies, and are dependent upon gastroenterologists for the diagnostic aspect of that patient’s care.

On the other hand, some diagnoses can be made by either the specialist or hospitalist, such as a myocardial infarction, which is made simply by noting an elevated troponin level in a routine blood test. If this diagnosis was missed, resulting in harm to the patient, neither the hospitalist nor the specialist would be able to claim their lack of training or experience in the field of cardiology as a defense for missing this diagnosis, and both would bear responsibility.

  1. Who had the ability to interpret the critical test results?

Some tests require the input of the specialist if the hospitalist lacks the training or experience to independently determine the correct course of action that should follow an abnormal test result. For example, the report on an MRI of spinal stenosis with spinal cord impingement is recognized as abnormal by any physician. However, this abnormal result is but one of several factors taken into consideration when determining the appropriate treatment for a patient with back pain. If a neurosurgeon determines that surgery is not appropriate, but the patient then progresses to paralysis due to a delay in surgical intervention for that spinal cord impingement, the hospitalist would bear a minimum of the responsibility for this decision, since the hospitalist is dependent upon the specialist to make treatment decisions.

On the other hand, some test results call for treatment available to both hospitalists and specialists. For example, both should know that a CT scan of the lungs showing a large pulmonary embolism typically requires administration of blood thinners. Failure to immediately act upon that test result would be a deviation from the standard of care for both physicians, regardless of their role in the patient’s care.

  1. Who could provide treatment once the diagnosis was made?

An echocardiogram showing acute cardiac tamponade (a large collection of fluid around the heart that impairs normal heart function) needs urgent surgical drainage. This treatment is provided by cardiologists, not hospitalists. If a bad outcome results from a delay in the drainage of that fluid, the specialist would be at the front of the line for holding responsibility.

Some diagnoses simply require treatment with medications which can be ordered by both hospitalist and the specialist alike. Either a hospitalist or a pulmonologist is capable of writing orders for antibiotics and oxygen for a patient diagnosed with pneumonia, and therefore both have responsibility if antibiotics were neglectfully not provided to the patient.

  1. Who was writing orders and notes in the chart?

If one of the two services co-managing a patient consistently documented in the chart about the patient’s physical examination findings and test results and offered an opinion regarding their assessment and plan, this would demonstrate a conscientious interest in the patient’s problem and carry with it a level of responsibility. In contrast, if the other service did not make any notes pertinent to the patient’s problem in the chart, this would give the perception that he or she was not involved with that particular issue, and did not hold themselves out as being involved or having responsibility to the patient.

  1. Who discharged the patient?

If a bad outcome occurs shortly after discharge, the doctor who performed the discharge (writing the discharge instructions, creating the discharge summary, and providing the discharge order) carries a higher level of responsibility regarding that patient’s bad outcome. That physician had the last opportunity to notice any potential instability of the patient, to perform an examination, to order additional tests, to involve another consultant, to postpone discharge, or to arrange for more vigilant outpatient follow up. The discharging physician (usually the hospitalist) does not automatically get saddled with all of the responsibility however, because the discharge often occurs only after a specialist’s approval for discharge, and specialists often have prescribed the specific instructions and follow up plan for the hospitalist to give to the patient at the time of discharge.

Yielding answers

Applying these ten questions to any one potential malpractice case will likely yield some answers that single out the specialist as bearing most of all of the responsibility, while the answers to the other answers may point the finger at the hospitalist. To complicate matters further, the answers to these questions for a particular case are not equally weighted in terms of importance. The specific medical issue in the case, the particular setting of the case, and numerous other factors influence how the answers to these questions ultimately shape the final conclusion regarding the assignment of responsibility. The answer to the question “Who is in charge?” will remain an ongoing challenge for attorneys and experts alike. With the above discussion in mind, you will be able to more thoroughly investigate the medical record yourself in the search for your answer, and have a more informed discussion of the case with your experts.


Douglas Bowerman, MD, FACP, SFHM, FAIHQ, FABQAURP, CHCQM, has reviewed 500 potential medical malpractice cases, with the provision of a dozen depositions and court testimony in several states. The majority of his work is with plaintiff attorneys, but also works with defense counsel. Douglas is a member of the American College of Legal Medicine.

 

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