Learning from Medical Errors: Legal Issues

236 Pages·2016·1.543 MB·English

by  Anh Vu T. Nguyen, Dung A. Nguyen

Learning from Medical
Errors: Legal Issues
Anh Vu T Nguyen
MD, FAAFP
and
Dung A Nguyen
MD, FAAFP
Foreword by David S Starr
Radcliffe Publishing
Oxford • Seattle
CRC Press
Taylor & Francis Group
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487-2742
© 2005 by Anh Vu T Nguyen and Dung A Nguyen
CRC Press is an imprint of Taylor & Francis Group, an Informa business
No claim to original U.S. Government works
Version Date: 20160525
International Standard Book Number-13: 978-1-138-03053-4 (eBook - PDF)
This book contains information obtained from authentic and highly regarded sources. While all reasonable efforts have been
made to publish reliable data and information, neither the author[s] nor the publisher can accept any legal responsibility or
liability for any errors or omissions that may be made. The publishers wish to make clear that any views or opinions expressed
in this book by individual editors, authors or contributors are personal to them and do not necessarily reflect the views/
opinions of the publishers. The information or guidance contained in this book is intended for use by medical, scientific or
health-care professionals and is provided strictly as a supplement to the medical or other professional’s own judgement, their
knowledge of the patient’s medical history, relevant manufacturer’s instructions and the appropriate best practice guidelines.
Because of the rapid advances in medical science, any information or advice on dosages, procedures or diagnoses should be
independently verified. The reader is strongly urged to consult the relevant national drug formulary and the drug companies’
and device or material manufacturers’ printed instructions, and their websites, before administering or utilizing any of the
drugs, devices or materials mentioned in this book. This book does not indicate whether a particular treatment is appropriate
or suitable for a particular individual. Ultimately it is the sole responsibility of the medical professional to make his or her
own professional judgements, so as to advise and treat patients appropriately. The authors and publishers have also attempted
to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission
to publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let us
know so we may rectify in any future reprint.
Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilized in
any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, micro-
filming, and recording, or in any information storage or retrieval system, without written permission from the publishers.
For permission to photocopy or use material electronically from this work, please access www.copyright.com (http://www.
copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-
8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that
have been granted a photocopy license by the CCC, a separate system of payment has been arranged.
Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifi-
cation and explanation without intent to infringe.
Visit the Taylor & Francis Web site at
http://www.taylorandfrancis.com
and the CRC Press Web site at
http://www.crcpress.com
Contents
Foreword iv
List of cases v
About the authors ix
Introduction 1
1 The progress note 5
2 Good progress note: putting it all together 29
3 What you should not place in a progress note 35
4 Things to avoid doing clinically 41
5 Dealing with the ‘difficult patient’ 57
6 Clinical tips to decrease liability in your practice: part 1 75
7 Clinical tips to decrease liability in your practice: part 2 103
8 Things that may go wrong (but are out of your control) 127
9 Other legal issues involving emergency physicians: part 1 155
10 Other legal issues involving emergency physicians: part 2 183
11 What to do after you have been sued 211
Index 225
Foreword
Dr J walked out of the emergency room, tired after a 12-hour day in the front lines
of clinical medicine. Waiting for him in the lobby was a process server, a heavily
built man in a dark suit, looking for all the world like a detective or insurance
salesman. He handed Dr J an envelope, and ignoring the look of stupefaction on
the physician’s face, quickly turned and walked out through the automatic doors.
Another lawsuit had started. Three years later, after countless hearings and
depositions, Dr J retired early from clinical medicine, suffering from terminal
litigation fatigue.
Today’s physician is under pressures that physicians of prior generations would
find hard to imagine. The trust that lies at the foundation of the physician–patient
relationship has, through unrelenting assault by the forces of government and
media, been eroded, and what we are left with is a commercial relationship, devoid
of the warmth and confidence that characterized the physician–patient relation-
ship for centuries. Today’s physician needs a guide to help him navigate the legal
fall-out from this social development, and the authors, Dr Anh Vu and his brother,
Dr Dung Nguyen, have provided one, and one that is very well written. In Learn-
ing from Medical Errors: Legal Issues, the companion book to Learning from Medical
Errors: Clinical Problems, they deal systematically with the causes and effects of
medical errors that have a disturbing tendency to creep into our medical practices
unless we take positive steps to prevent them. All of us can benefit from a review
of our clinical practices through the eyes of the authors’ text, and their work
brings a rigor and thoroughness to the analysis that satisfies our sense of profes-
sionalism. Their many examples, some of which are drawn from my work in
Cortlandt Forum, are well chosen and instructive.
I recommend this text to physicians who are seeking a comprehensive text to
help them avoid litigation and improve their quality of care.
David S Starr, MD, JD
July 2005
David S Starr, MD, JD practiced law and medicine in Georgetown, Texas for many
years. He recently retired from a consulting practice in medicolegal issues, mainly
malpractice defense.
List of cases
1.1 Build your evaluation from previous ones 6
1.2 Differences in terminology 8
1.3 Do not let the past haunt you 9
1.4 Do not minimize family ties 11
1.5 Dig up family secrets 12
1.6 Remember what the patient said 14
1.7 Simple clue goes a long way 15
1.8 A fatal omission 16
1.9 Hands-on experience 17
1.10 I forgot to look 17
1.11 A picture is worth a thousand words 17
1.12 Falling for the same mistake twice 18
1.13 An unpleasant but necessary job 19
1.14 What did this patient expect? 20
1.15 Not searching for the obvious 21
1.16 Medicine is a contact science 22
1.17 (also Case 6.12) One thing led to another 24
1.18 Getting everyone on the same page 25
2.1 Time as our ally 31
3.1 Do we have the right sample? 36
3.2 Always look at the name 38
3.3 The pen can be deadly 39
4.1 Recognizing one’s limitations 42
4.2 Not as simple as it sounds 43
4.3 Simple diagnoses may have serious causes 43
4.4 Sticking with one’s gut instinct 45
4.5 Who should one believe? 46
4.6 A nurse’s intuition 48
4.7 Another case of ‘my doctor did not listen to me’ 48
4.8 Getting one’s foot out of one’s mouth 49
4.9 Look beyond the obvious 50
4.10 Avoiding prejudices from prior experiences 51
4.11 Test is only as good as its interpreter 52
4.12 Children are not small adults 53
5.1 Symptoms that are difficult to pinpoint 58
5.2 Will this patient just listen? 61
5.3 Who are we treating here? 63
5.4 Complaints will come even when you do everything right 64
5.5 Sometimes you have to say no 66
5.6 Not giving in to threats 67
5.7 Watch them like a hawk 68
vi List of cases
5.8 Raising the height of suspicion 69
5.9 Alcohol intoxication is a diagnosis of exclusion 70
5.10 Having patience with patients 72
6.1 A faulty handoff 78
6.2 Look before you give 80
6.3 Are the patient’s medications compatible? 82
6.4 There are no small details 86
6.5 Long-distance medicine 87
6.6 Take advantage of second opportunities 89
6.7 Protecting yourself from criticism 92
6.8 Two heads are better than one 93
6.9 Keeping an open mind 96
6.10 Pick your partners wisely 98
6.11 Physicians who ‘cherry-pick’ 98
6.12 Protocols can be your saving grace 100
6.13 Tough to argue against protocols 101
7.1 Playing by house rules 104
7.2 But the test was negative 106
7.3 When things are not better 107
7.4 Finding treasures in the chart 109
7.5 I should have seen it coming 110
7.6 Unfinished business 111
7.7 Clearing them out too quickly 112
7.8 Should I listen to this patient? 113
7.9 A patient’s misdiagnosis 114
7.10 Too early to tell 115
7.11 Day late and dollar short 116
7.12 A picture is worth a thousand words 117
7.13 A difficult sight to watch 117
7.14 ‘Uncommon’ sense advice 119
7.15 A sensitive issue 119
7.16 The warning call 120
7.17 Pharmaceutical temptation 121
7.18 Improper disposal 121
7.19 The patient ‘did not read the book’ 122
7.20 Add anticoagulant use to the problem list 123
7.21 Mistaken identity 124
7.22 How long has this been going on? 125
8.1 When is it going to be fixed? 128
8.2 Road left unexplored 129
8.3 I am tired of waiting 131
8.4 Racing against the clock 131
8.5 Products we hate to see go 134
8.6 Get rich schemes 134
8.7 Right of free enterprise 135
8.8 Burden of responsibility 135
8.9 Never had a chance 137
8.10 Who do you work for? 138
8.11 Confused with someone else 139
List of cases vii
8.12 More is not better 140
8.13 Putting things in the correct place 140
8.14 Watch over carefully 141
8.15 If he would have followed instructions 142
8.16 Will say anything for money 143
8.17 Fighting back 144
8.18 Turning the tables 145
8.19 Frivolous but damaging 145
8.20 Blaming the wrong person 146
8.21 Watching your weight 148
8.22 Weighing the options 148
8.23 The same problem again 149
8.24 No time to wait for tests 150
8.25 A short supply 150
8.26 No friends to help 151
8.27 Chain of command 153
9.1 On your property 158
9.2 Stretching the definition of emergency 158
9.3 May I see your ID? 159
9.4 We are not having a baby 159
9.5 Tune them up first 160
9.6 Getting the runaround 161
9.7 You came to the wrong place 162
9.8 Did you see what I saw? 163
9.9 Every patient looks great from your home 165
9.10 Who is the boss? 168
9.11 Treating the hidden patient 169
9.12 Stay and work out your problems 170
9.13 Things can change any minute 172
9.14 Is it safe to let go? 172
9.15 Duty to protect 173
9.16 What were the patient’s wishes? 175
9.17 Duty to treat 178
9.18 Who are you going to call? 179
9.19 Can they handle it? 180
10.1 Be careful what you say 184
10.2 Some rules are difficult to follow 185
10.3 Treatment that is not without risk 186
10.4 Some patients are worth keeping 188
10.5 What are the alternatives? 189
10.6 It is not over when they leave 190
10.7 Do not force the issue 191
10.8 What is sound mind? 192
10.9 Work till you die 193
10.10 Do not risk losing 194
10.11 Too tight and secure 194
10.12 Poisoning the mind 195
10.13 Stand firm 197
10.14 Nowhere else to go 198
viii List of cases
10.15 Another time and place 199
10.16 Suspicious mind required 201
10.17 Not nice to wait 202
10.18 Report any doubts 203
10.19 No right to complain 203
10.20 A matter of timing 205
10.21 Missed but considered and treated 206
10.22 Was it a true miss? 206
10.23 Valid concerns, wrong approach 207
10.24 Too many to forgive 208
10.25 Fighting through the gatekeeper 209
11.1 Comparing apples to oranges 216
11.2 Times change 217
11.3 They saw right through him 217
11.4 A change of heart 218
11.5 Time is up 222
About the authors
Dr Anh Vu Nguyen was born in Saigon, Vietnam and grew up in Tampa, FL. He
attended the University of South Florida as a National Merit Scholar and gradu-
ated summa cum laude with a Bachelor of Science in Engineering degree. He then
attended the University of South Florida College of Medicine and graduated in
1996. Dr A Nguyen completed his family practice residency at Bayfront Medical
Center in Saint Petersburg, FL in 1999 and became board-certified through the
American Board of Family Practice. He then moved to Tallahassee, FL. Since then,
he has been a full-time emergency physician at Tallahassee Community Hospital
(now Capital Regional Medical Center), serving as associate director from 1999–
2001. From 1998–2003, Dr A Nguyen also worked part-time as an urgent care
provider in Saint Petersburg, FL and in Tallahassee, FL and also as a medical and
legal consultant for the Florida Department of Health. In 2003, Dr A Nguyen
began serving as a part-time emergency physician at the Bay Pines Veterans
Administration Hospital in Saint Petersburg, FL. He obtained board certifica-
tions in ambulatory medicine in 2003 through the American Board of Ambulatory
Care and in emergency medicine in 2004 through the American Association of
Physician Specialists. He has written numerous articles for Consultant and Patient
Care medical journals. Dr Nguyen became a clinical assistant professor at the
Florida State University College of Medicine in 2004.
His hobbies include reading, traveling, movies, and the martial arts. He is a
second degree black belt from the WTF in Taekwondo and is currently an assist-
ant instructor for the FSU Taekwondo club.
Dr Dung Nguyen is the older brother of Dr A Nguyen and was also born in
Saigon, Vietnam. He grew up in Tampa, FL and attended the University of South
Florida as a National Merit Scholar and graduated magna cum laude with a
Bachelor of Science in Engineering degree. He then attended the University of
South Florida College of Medicine and graduated in 1994. Dr D Nguyen com-
pleted his family practice residency at Tallahassee Memorial Hospital in
Tallahassee, FL in 1997 and became board-certified in family practice. He has
been in private practice in Tallahassee since finishing residency. His practice
includes both family medicine and urgent care medicine. Dr D Nguyen became
board-certified in ambulatory medicine in 2003. From 1999–2001, he served as a
medical consultant for the Office of Research and Practice at the University of
South Florida. Dr D Nguyen has also been a clinical instructor for the Florida
State University College of Medicine since 2002. He has been published in Patient
Care medical journal.
His hobbies include sports cars, music, traveling, and the martial arts. He is a
third degree black belt from the WTF in Taekwondo and is currently an assistant
instructor for the FSU Taekwondo club.