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Lung cancer found belatedly despite multiple chest radiographs
Lung cancer found belatedly despite multiple chest radiographs
DURING AN ANNUAL PHYSICAL EXAMINATION by her primary care physician, a 68-year-old woman with a history of smoking for more than 30 years had an in-house chest x-ray. The physician didn’t have a radiologist read the radiograph or order follow-up imaging. The chest film was repeated the following year. A year after that, the patient developed pulmonary symptoms. A chest x-ray showed an abnormality. The doctor prescribed antibiotics for presumed bronchitis or pneumonia. When the antibiotics didn’t relieve her symptoms, he referred her to a radiologist, who reported a large lesion suggestive of advanced lung cancer. Subsequent films confirmed stage IIIB lung cancer. After 16 rounds of chemotherapy, the patient died at age 73.
PLAINTIFF'S CLAIM The doctor missed an obvious lung lesion on the first radiograph; missed the lesion, which had grown and metastasized, on the second x-ray; and misinterpreted late-stage metastatic cancer on the third radiograph as bronchitis or pneumonia. The chest radiographs should have been over-read, especially when they showed an abnormality. A cancer diagnosis at the time of the first chest radiograph would have allowed a 75% possibility of cure with surgery alone. By the time of the diagnosis 2 years later, a surgical cure wasn’t possible.
THE DEFENSE The lesion could be seen only on retrospective review of the radiographs. The first and second radiographs were consistent with pulmonary hypertension and didn’t necessitate referral to a radiologist or additional imaging. The patient had many comorbid conditions, including obesity, hypertension, and stenosis of the carotid arteries. She also had a family history of heart disease and COPD.
VERDICT $2 million Virginia verdict.
COMMENT This case illustrates that a simple test, a chest x-ray in this instance, has the potential for litigation if it isn’t interpreted accurately and followed up. Failure to appropriately follow up on test results is one of the 2 major patient safety issues for family medicine; the other is medication errors/drug interactions.
Otitis media? Not likely
A 3-MONTH-OLD INFANT was taken to the emergency department with a fever of 103°F. The ED physician discharged her with a diagnosis of otitis media and a prescription for amoxicillin. He didn’t document which ear was infected or what he observed in the affected ear. The following day, the infant was pale, cool to the touch, and lethargic. She was brought to her pediatrician, then transferred immediately to a local medical center, where she was diagnosed with pneumococcal meningitis, hypoxic brain injury, and hydrocephalus and hospitalized for nearly a month. She was subsequently taken to the hospital 10 times and evaluated by several specialists. The child died of respiratory complications linked to the infection almost 2 years after her initial hospitalization.
PLAINTIFF'S CLAIM The ED physician should have ordered a blood count and urinalysis to rule out bacteremia and meningitis. He should have scheduled a follow-up within 24 to 48 hours of the ED visit.
THE DEFENSE The doctor wasn’t negligent; he couldn’t have anticipated the infant’s clinical course. The bacteremia and meningitis developed after the baby left the hospital, and the causative pneumococcal strain was resistant to amoxicillin.
VERDICT $1.72 million Pennsylvania verdict.
COMMENT Does otitis media ever cause a fever of 103°F in a 3-month-old? Although no definitive studies exist, I doubt it. Otitis media is a closed-space infection like an abscess, and abscesses rarely cause fever. Furthermore, the physical findings of otitis media, although not recorded in this case, are highly unreliable in a 3-month-old. Attributing a fever of 103°F in a 3-month-old to otitis media is always a bad idea.
Lung cancer found belatedly despite multiple chest radiographs
DURING AN ANNUAL PHYSICAL EXAMINATION by her primary care physician, a 68-year-old woman with a history of smoking for more than 30 years had an in-house chest x-ray. The physician didn’t have a radiologist read the radiograph or order follow-up imaging. The chest film was repeated the following year. A year after that, the patient developed pulmonary symptoms. A chest x-ray showed an abnormality. The doctor prescribed antibiotics for presumed bronchitis or pneumonia. When the antibiotics didn’t relieve her symptoms, he referred her to a radiologist, who reported a large lesion suggestive of advanced lung cancer. Subsequent films confirmed stage IIIB lung cancer. After 16 rounds of chemotherapy, the patient died at age 73.
PLAINTIFF'S CLAIM The doctor missed an obvious lung lesion on the first radiograph; missed the lesion, which had grown and metastasized, on the second x-ray; and misinterpreted late-stage metastatic cancer on the third radiograph as bronchitis or pneumonia. The chest radiographs should have been over-read, especially when they showed an abnormality. A cancer diagnosis at the time of the first chest radiograph would have allowed a 75% possibility of cure with surgery alone. By the time of the diagnosis 2 years later, a surgical cure wasn’t possible.
THE DEFENSE The lesion could be seen only on retrospective review of the radiographs. The first and second radiographs were consistent with pulmonary hypertension and didn’t necessitate referral to a radiologist or additional imaging. The patient had many comorbid conditions, including obesity, hypertension, and stenosis of the carotid arteries. She also had a family history of heart disease and COPD.
VERDICT $2 million Virginia verdict.
COMMENT This case illustrates that a simple test, a chest x-ray in this instance, has the potential for litigation if it isn’t interpreted accurately and followed up. Failure to appropriately follow up on test results is one of the 2 major patient safety issues for family medicine; the other is medication errors/drug interactions.
Otitis media? Not likely
A 3-MONTH-OLD INFANT was taken to the emergency department with a fever of 103°F. The ED physician discharged her with a diagnosis of otitis media and a prescription for amoxicillin. He didn’t document which ear was infected or what he observed in the affected ear. The following day, the infant was pale, cool to the touch, and lethargic. She was brought to her pediatrician, then transferred immediately to a local medical center, where she was diagnosed with pneumococcal meningitis, hypoxic brain injury, and hydrocephalus and hospitalized for nearly a month. She was subsequently taken to the hospital 10 times and evaluated by several specialists. The child died of respiratory complications linked to the infection almost 2 years after her initial hospitalization.
PLAINTIFF'S CLAIM The ED physician should have ordered a blood count and urinalysis to rule out bacteremia and meningitis. He should have scheduled a follow-up within 24 to 48 hours of the ED visit.
THE DEFENSE The doctor wasn’t negligent; he couldn’t have anticipated the infant’s clinical course. The bacteremia and meningitis developed after the baby left the hospital, and the causative pneumococcal strain was resistant to amoxicillin.
VERDICT $1.72 million Pennsylvania verdict.
COMMENT Does otitis media ever cause a fever of 103°F in a 3-month-old? Although no definitive studies exist, I doubt it. Otitis media is a closed-space infection like an abscess, and abscesses rarely cause fever. Furthermore, the physical findings of otitis media, although not recorded in this case, are highly unreliable in a 3-month-old. Attributing a fever of 103°F in a 3-month-old to otitis media is always a bad idea.
Lung cancer found belatedly despite multiple chest radiographs
DURING AN ANNUAL PHYSICAL EXAMINATION by her primary care physician, a 68-year-old woman with a history of smoking for more than 30 years had an in-house chest x-ray. The physician didn’t have a radiologist read the radiograph or order follow-up imaging. The chest film was repeated the following year. A year after that, the patient developed pulmonary symptoms. A chest x-ray showed an abnormality. The doctor prescribed antibiotics for presumed bronchitis or pneumonia. When the antibiotics didn’t relieve her symptoms, he referred her to a radiologist, who reported a large lesion suggestive of advanced lung cancer. Subsequent films confirmed stage IIIB lung cancer. After 16 rounds of chemotherapy, the patient died at age 73.
PLAINTIFF'S CLAIM The doctor missed an obvious lung lesion on the first radiograph; missed the lesion, which had grown and metastasized, on the second x-ray; and misinterpreted late-stage metastatic cancer on the third radiograph as bronchitis or pneumonia. The chest radiographs should have been over-read, especially when they showed an abnormality. A cancer diagnosis at the time of the first chest radiograph would have allowed a 75% possibility of cure with surgery alone. By the time of the diagnosis 2 years later, a surgical cure wasn’t possible.
THE DEFENSE The lesion could be seen only on retrospective review of the radiographs. The first and second radiographs were consistent with pulmonary hypertension and didn’t necessitate referral to a radiologist or additional imaging. The patient had many comorbid conditions, including obesity, hypertension, and stenosis of the carotid arteries. She also had a family history of heart disease and COPD.
VERDICT $2 million Virginia verdict.
COMMENT This case illustrates that a simple test, a chest x-ray in this instance, has the potential for litigation if it isn’t interpreted accurately and followed up. Failure to appropriately follow up on test results is one of the 2 major patient safety issues for family medicine; the other is medication errors/drug interactions.
Otitis media? Not likely
A 3-MONTH-OLD INFANT was taken to the emergency department with a fever of 103°F. The ED physician discharged her with a diagnosis of otitis media and a prescription for amoxicillin. He didn’t document which ear was infected or what he observed in the affected ear. The following day, the infant was pale, cool to the touch, and lethargic. She was brought to her pediatrician, then transferred immediately to a local medical center, where she was diagnosed with pneumococcal meningitis, hypoxic brain injury, and hydrocephalus and hospitalized for nearly a month. She was subsequently taken to the hospital 10 times and evaluated by several specialists. The child died of respiratory complications linked to the infection almost 2 years after her initial hospitalization.
PLAINTIFF'S CLAIM The ED physician should have ordered a blood count and urinalysis to rule out bacteremia and meningitis. He should have scheduled a follow-up within 24 to 48 hours of the ED visit.
THE DEFENSE The doctor wasn’t negligent; he couldn’t have anticipated the infant’s clinical course. The bacteremia and meningitis developed after the baby left the hospital, and the causative pneumococcal strain was resistant to amoxicillin.
VERDICT $1.72 million Pennsylvania verdict.
COMMENT Does otitis media ever cause a fever of 103°F in a 3-month-old? Although no definitive studies exist, I doubt it. Otitis media is a closed-space infection like an abscess, and abscesses rarely cause fever. Furthermore, the physical findings of otitis media, although not recorded in this case, are highly unreliable in a 3-month-old. Attributing a fever of 103°F in a 3-month-old to otitis media is always a bad idea.
Social media liability
Question: Which of the following is incorrect?
A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.
B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.
C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.
D. An employment contract should cover matters concerning confidentiality and privacy.
E. Staff should use office computers only for work-related activities.
Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.
While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.
Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.
In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.
There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.
Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.
In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.
The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?
Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).
In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.
Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).
It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).
Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.
One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).
Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."
Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.
The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.
Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: Which of the following is incorrect?
A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.
B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.
C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.
D. An employment contract should cover matters concerning confidentiality and privacy.
E. Staff should use office computers only for work-related activities.
Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.
While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.
Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.
In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.
There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.
Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.
In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.
The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?
Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).
In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.
Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).
It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).
Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.
One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).
Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."
Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.
The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.
Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: Which of the following is incorrect?
A. Medical malpractice lawsuits arising out of social media interactions are still uncommon.
B. Comments shared by an ex-employee with friends on Facebook may breach doctor-patient confidentiality, with liability imputed to the doctor-employer.
C. Using the same platform, a doctor must promptly rebut disparaging comments on Yelp in order to protect his or her reputation.
D. An employment contract should cover matters concerning confidentiality and privacy.
E. Staff should use office computers only for work-related activities.
Answer: C. Physicians’ widespread use of social media sites such as Facebook, LinkedIn, and Twitter has spawned novel issues of professional liability. Use of such media, augmented by ubiquitous mobile devices such as smartphones and tablets, typically involves physician-to-physician and physician-to-patient communications but may also be personal in nature. Many patients have approached their doctors to "friend" them on Facebook. About a third of all doctors are said to have received such requests, and about a quarter have accepted. Other doctors are regular or occasional bloggers, offering views both medical and nonmedical.
While embracing the immense value of social media, the physician must remain mindful of the legal and ethical risks that such networking poses. State medical boards are facing increasing complaints of online professional breach, and civil lawsuits can be expected to mount.
Allegations of medical malpractice can arise if there is a showing that negligent conduct has caused an injury of some kind. Though currently uncommon, one can expect such lawsuits to proliferate. To be sure, there will be arguments about whether there exists a doctor-patient relationship from which a duty of care arises (Internal Medicine News, "Liability in the Internet Age," April 15, 2011, p. 74), but liability can come about in unexpected ways.
In a recent Massachusetts case, a pediatrician faced a malpractice suit that alleged a failure to diagnose diabetes and diabetic ketoacidosis. An offer to settle followed quickly once it was realized that the plaintiff’s attorney had discovered the defendant’s publicly blogged details about his deposition and trial preparation (American Medical News, "Internet won't protect your secret identity," Aug. 13, 2007) Lesson: Use the blogosphere to educate, not vent; and never presume to successfully hide behind the veil of anonymity.
There are other legal issues. For example, some state employment laws forbid navigating the Internet in search of an applicant’s medical or criminal history, as such searches are permissible only after a tentative job offer has been made.
Another legal issue involves staff who use office computers or mobile devices for personal activities. This should be pointedly forbidden, as any negligence may be imputed to the doctor under the doctrine of vicarious liability. Current or former staff may unwittingly or even intentionally disclose confidential details of patients. So, as a risk-management strategy, employment contracts should address all of these matters proactively.
In addition to civil suits by an aggrieved patient and/or family, the doctor may face civil and criminal sanctions under the federal Health Insurance Portability and Accountability Act (HIPAA) and other statutes. All professional liability carriers are keen to assist their insured members in formulating office policies and procedures that govern privacy, confidentiality, and disclosure, and practitioners should take advantage of this service.
The ethics surrounding social media typically center on privacy, for example, should a liver transplant physician use social media to ferret out a patient’s recent drinking habits?
Where there is professional misconduct arising out of Internet postings, a state medical board may launch an investigation. A preliminary study indicates that the most common violations are inappropriate patient communication of a sexual nature, Internet prescribing for unknown individuals, and online misrepresentation of credentials (JAMA 2012;307:1141-2).
In a recent illustrative article, the same authors posed 10 hypothetical scenarios to determine the need for disciplinary action (Ann. Int. Med. 2013;158:124-30). The evaluators deemed 4 of the 10 definitely worthy of investigation: misleading information about clinical outcomes, using images without consent, misrepresenting credentials, and inappropriately contacting patients. Other vignettes thought to be probably reprehensible were the depiction of alcohol intoxication, violating patient confidentiality, and using discriminatory speech. There was even concern raised regarding derogatory speech toward patients, showing alcohol use without intoxication, and providing clinical narratives without violating confidentiality.
Errant behavior may be observed early in one’s training. Most medical schools have identified instances of unprofessional student online postings such as breaching patient confidentiality, using profane or discriminatory language, depiction of intoxication, and sexually suggestive material (JAMA 2009;302:1309-15).
It may be impossible to separate personal from professional use of social media, so it has been suggested that ethical guidelines be framed in terms of appropriateness rather than boundaries (JAMA 2013;310:581-2).
Physicians must remain mindful that their online postings are searchable and permanent, notwithstanding the façade of anonymity. Venting of frustration or work stress is rarely justified in the public domain of the Internet.
One doctor, reportedly with some 3,000 followers, gained recent notoriety – and criticism – with his sarcasm, profanity, and patient-bashing through his tweets. Another was fined $500 and lost hospital privileges for posting information traceable to a specific person, despite not divulging the patient’s identity (American Medical News, "Anonymous posts: Liberating or unprofessional?" July 11, 2011).
Recognizing the growing prevalence of doctors’ participation on social media, a growing number of professional organizations – including the American Medical Association, the American College of Physicians, and the Mayo Clinic, among others – have offered guidelines in this area. Most relevantly, the Federation of State Medical Boards, a national nonprofit organization representing the 70 medical and osteopathic boards of the United States and its territories, has published a reader-friendly report entitled, "Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice."
Then there is the patient who posts negative comments about his or her doctor, say, on Yelp. Occasionally, these comments are derogatory, even defamatory. Such online attacks are difficult to counter, but engaging in an online war is more likely to be aggravating than salutary and adds unwanted publicity.
The preferred way is to attempt to identify the source and to request that the material be removed from the website, either by the poster or the domain host. If a simple request fails, an attorney’s letter, a subpoena, or a judge’s restraining order may be warranted. Occasionally, a defamation suit, even if time consuming and expensive, may prove necessary – and successful.
Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
The Electronic Health Record Mandate: What Is in Store for Small to Medium-Sized Dermatology Practices?
When pain persists, so shold investigation
When pain persists, so should investigation
TWO WEEKS OF ABDOMINAL PAIN brought a 63-year- old man to a group medical practice where an internist attributed the pain to gastritis and prescribed an over-the-counter medication.
The internist examined the man several times over the next 4 years, during which time the man complained periodically of nausea and abdominal pain and the doctor prescribed antacids. A different physician who examined the patient during this period recommended referral to a gastroenterologist. Although the internist was told of the recommendation, he didn’t make the referral.
Four years after the patient first reported abdominal pain to the internist, he was diagnosed with stage IV colon cancer. He died the following year at 68 years of age.
PLAINTIFF'S CLAIM The colon cancer should have been diagnosed when the patient initially complained of pain. His symptoms and age called for an immediate colonoscopy (which would have detected the cancer) or referral to a gastroenterologist.
THE DEFENSE The internist maintained that the pa- tient had been advised several times to undergo a colonoscopy and had refused to do so, although records didn’t support that claim. Earlier treatment wouldn’t have changed the outcome.
VERDICT $950,000 New York settlement.
COMMENT I do a fair amount of malpractice case reviews and find that most cases arise from diagnostic delays and missed diagnoses. This physician’s initial approach may have been sensible, but persistence of symptoms is always a reason to escalate the diagnostic approach, and early referral is necessary in the absence of a definitive diagnosis.
Failure to reconsider the initial evaluation
A 29-YEAR-OLD MAN complained of chronic constipation (3 years) and recent rectal bleeding at his first visit to an internist. The doctor performed a rectal examination and ordered a colonoscopy, which was negative and didn’t reveal the cause of the bleeding.
The following year, the patient returned to the internist, reporting new rectal bleeding. After a digital rectal examination, the doctor diagnosed internal hemorrhoids. She continued to treat the patient for the next 3 years. During that time, the patient reported rectal bleeding on 2 occasions; the physician diagnosed external hemorrhoids.
Almost 5 years after his first visit to the internist, the patient requested another colonoscopy, which revealed rectal cancer. After receiving radiation and chemotherapy, the patient underwent abdominoperineal resection with removal of the sphincter muscle, resulting in a permanent colostomy.
PLAINTIFF'S CLAIM The internist couldn’t have diagnosed internal hemorrhoids by digital exam alone unless the hemorrhoids were prolapsing. She was negligent in failing to perform an anoscopy or refer the patient to a gastroenterologist to confirm the cause of the rectal bleeding. Proper management would have enabled diagnosis of the cancer at a stage when radical surgery could have been avoided and the sphincter muscle preserved, eliminating the need for a permanent colostomy.
THE DEFENSE The internist claimed she had diagnosed prolapsing internal hemorrhoids, although the chart noted only internal hemorrhoids. Reliance on the initial negative colonoscopy was proper; earlier diagnosis wouldn’t have changed the patient’s treatment and outcome.
VERDICT $934,779 Illinois bench verdict.
COMMENT This is a difficult case. Colon and rectal cancer are very rare in 29-year-olds, and the initial evaluation was appropriate. At what point should the physician have re-evaluated with colonoscopy or anoscopy and biopsy? I don’t think any retrospectoscope will provide a definitive answer. If this case offers a take-away lesson, it is to reevaluate when potentially serious symptoms persist.
When pain persists, so should investigation
TWO WEEKS OF ABDOMINAL PAIN brought a 63-year- old man to a group medical practice where an internist attributed the pain to gastritis and prescribed an over-the-counter medication.
The internist examined the man several times over the next 4 years, during which time the man complained periodically of nausea and abdominal pain and the doctor prescribed antacids. A different physician who examined the patient during this period recommended referral to a gastroenterologist. Although the internist was told of the recommendation, he didn’t make the referral.
Four years after the patient first reported abdominal pain to the internist, he was diagnosed with stage IV colon cancer. He died the following year at 68 years of age.
PLAINTIFF'S CLAIM The colon cancer should have been diagnosed when the patient initially complained of pain. His symptoms and age called for an immediate colonoscopy (which would have detected the cancer) or referral to a gastroenterologist.
THE DEFENSE The internist maintained that the pa- tient had been advised several times to undergo a colonoscopy and had refused to do so, although records didn’t support that claim. Earlier treatment wouldn’t have changed the outcome.
VERDICT $950,000 New York settlement.
COMMENT I do a fair amount of malpractice case reviews and find that most cases arise from diagnostic delays and missed diagnoses. This physician’s initial approach may have been sensible, but persistence of symptoms is always a reason to escalate the diagnostic approach, and early referral is necessary in the absence of a definitive diagnosis.
Failure to reconsider the initial evaluation
A 29-YEAR-OLD MAN complained of chronic constipation (3 years) and recent rectal bleeding at his first visit to an internist. The doctor performed a rectal examination and ordered a colonoscopy, which was negative and didn’t reveal the cause of the bleeding.
The following year, the patient returned to the internist, reporting new rectal bleeding. After a digital rectal examination, the doctor diagnosed internal hemorrhoids. She continued to treat the patient for the next 3 years. During that time, the patient reported rectal bleeding on 2 occasions; the physician diagnosed external hemorrhoids.
Almost 5 years after his first visit to the internist, the patient requested another colonoscopy, which revealed rectal cancer. After receiving radiation and chemotherapy, the patient underwent abdominoperineal resection with removal of the sphincter muscle, resulting in a permanent colostomy.
PLAINTIFF'S CLAIM The internist couldn’t have diagnosed internal hemorrhoids by digital exam alone unless the hemorrhoids were prolapsing. She was negligent in failing to perform an anoscopy or refer the patient to a gastroenterologist to confirm the cause of the rectal bleeding. Proper management would have enabled diagnosis of the cancer at a stage when radical surgery could have been avoided and the sphincter muscle preserved, eliminating the need for a permanent colostomy.
THE DEFENSE The internist claimed she had diagnosed prolapsing internal hemorrhoids, although the chart noted only internal hemorrhoids. Reliance on the initial negative colonoscopy was proper; earlier diagnosis wouldn’t have changed the patient’s treatment and outcome.
VERDICT $934,779 Illinois bench verdict.
COMMENT This is a difficult case. Colon and rectal cancer are very rare in 29-year-olds, and the initial evaluation was appropriate. At what point should the physician have re-evaluated with colonoscopy or anoscopy and biopsy? I don’t think any retrospectoscope will provide a definitive answer. If this case offers a take-away lesson, it is to reevaluate when potentially serious symptoms persist.
When pain persists, so should investigation
TWO WEEKS OF ABDOMINAL PAIN brought a 63-year- old man to a group medical practice where an internist attributed the pain to gastritis and prescribed an over-the-counter medication.
The internist examined the man several times over the next 4 years, during which time the man complained periodically of nausea and abdominal pain and the doctor prescribed antacids. A different physician who examined the patient during this period recommended referral to a gastroenterologist. Although the internist was told of the recommendation, he didn’t make the referral.
Four years after the patient first reported abdominal pain to the internist, he was diagnosed with stage IV colon cancer. He died the following year at 68 years of age.
PLAINTIFF'S CLAIM The colon cancer should have been diagnosed when the patient initially complained of pain. His symptoms and age called for an immediate colonoscopy (which would have detected the cancer) or referral to a gastroenterologist.
THE DEFENSE The internist maintained that the pa- tient had been advised several times to undergo a colonoscopy and had refused to do so, although records didn’t support that claim. Earlier treatment wouldn’t have changed the outcome.
VERDICT $950,000 New York settlement.
COMMENT I do a fair amount of malpractice case reviews and find that most cases arise from diagnostic delays and missed diagnoses. This physician’s initial approach may have been sensible, but persistence of symptoms is always a reason to escalate the diagnostic approach, and early referral is necessary in the absence of a definitive diagnosis.
Failure to reconsider the initial evaluation
A 29-YEAR-OLD MAN complained of chronic constipation (3 years) and recent rectal bleeding at his first visit to an internist. The doctor performed a rectal examination and ordered a colonoscopy, which was negative and didn’t reveal the cause of the bleeding.
The following year, the patient returned to the internist, reporting new rectal bleeding. After a digital rectal examination, the doctor diagnosed internal hemorrhoids. She continued to treat the patient for the next 3 years. During that time, the patient reported rectal bleeding on 2 occasions; the physician diagnosed external hemorrhoids.
Almost 5 years after his first visit to the internist, the patient requested another colonoscopy, which revealed rectal cancer. After receiving radiation and chemotherapy, the patient underwent abdominoperineal resection with removal of the sphincter muscle, resulting in a permanent colostomy.
PLAINTIFF'S CLAIM The internist couldn’t have diagnosed internal hemorrhoids by digital exam alone unless the hemorrhoids were prolapsing. She was negligent in failing to perform an anoscopy or refer the patient to a gastroenterologist to confirm the cause of the rectal bleeding. Proper management would have enabled diagnosis of the cancer at a stage when radical surgery could have been avoided and the sphincter muscle preserved, eliminating the need for a permanent colostomy.
THE DEFENSE The internist claimed she had diagnosed prolapsing internal hemorrhoids, although the chart noted only internal hemorrhoids. Reliance on the initial negative colonoscopy was proper; earlier diagnosis wouldn’t have changed the patient’s treatment and outcome.
VERDICT $934,779 Illinois bench verdict.
COMMENT This is a difficult case. Colon and rectal cancer are very rare in 29-year-olds, and the initial evaluation was appropriate. At what point should the physician have re-evaluated with colonoscopy or anoscopy and biopsy? I don’t think any retrospectoscope will provide a definitive answer. If this case offers a take-away lesson, it is to reevaluate when potentially serious symptoms persist.
Failure to diagnose
Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.
The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.
Which of the following observations is correct?
A. Failure to diagnose is the most common basis for a medical malpractice claim.
B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.
C. The doctor may have been biased, because this was a patient with a psychiatric history.
D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.
E. All are correct.
Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.
It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.
Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.
Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.
In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.
Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.
Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.
The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.
One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.
Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).
Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.
One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.
The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.
Which of the following observations is correct?
A. Failure to diagnose is the most common basis for a medical malpractice claim.
B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.
C. The doctor may have been biased, because this was a patient with a psychiatric history.
D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.
E. All are correct.
Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.
It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.
Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.
Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.
In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.
Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.
Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.
The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.
One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.
Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).
Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.
One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: A psychiatrist refers a young woman for possible pneumonia. Her symptoms include episodic dyspnea and hyperventilation. The resident obtained a history of chronic anxiety and depression, for which the patient takes diazepam. There was a history of cigarette smoking and use of oral contraceptives. Physical examination was normal except for obesity, tachycardia, restlessness, and breathlessness. The patient’s cardiovascular and respiratory exams were otherwise normal, and the chest x-ray was read as unremarkable.
The woman was sent home with the tentative diagnosis of anxiety neurosis, but was found dead 24 hours later. Autopsy revealed a massive pulmonary embolus originating from a pelvic vein thrombus.
Which of the following observations is correct?
A. Failure to diagnose is the most common basis for a medical malpractice claim.
B. It is likely that this case will be settled in the decedent’s favor, because all four elements of negligence are satisfied: duty, breach of duty, causation, and damages.
C. The doctor may have been biased, because this was a patient with a psychiatric history.
D. This is an example of framing and anchoring cognitive failure rather than lack of knowledge.
E. All are correct.
Answer: E. This case is modified from an example in the literature on diagnostic errors (N. Engl. J. Med. 2013;368:2445-8). The resident focused his attention on the psychiatric referral diagnoses of pneumonia and anxiety, overlooking the many risk factors for pulmonary embolism that included obesity, cigarette smoking, and the use of oral contraceptives. The case satisfies all four elements for the tort of negligence, and will most likely be decided in the patient’s favor.
It is usually not a lack of knowledge that leads to a diagnostic error, but problems with the clinician’s thought process (cognitive failure). Although physicians well know the pathophysiology of pulmonary embolism, its protean signs and symptoms overlap those of numerous other diseases, and this important diagnosis is frequently missed – in 55% of fatal cases, in one study.
Terms such as "missed diagnosis," "wrong diagnosis," or most commonly "diagnostic error" are used in the medical literature, but the unifying malpractice nomenclature is "failure to diagnose." The term includes the failure to refer to an appropriate specialist if customarily required.
Although reduced physician-patient encounter time is sometimes blamed for missing a diagnosis, this is of course not a legitimate legal defense. There is litigation aplenty over failure-to-diagnose conditions such as myocardial infarction or a dissecting aneurysm (Cardiology 2008;109:263-72). Other examples are pulmonary embolism, appendicitis, ectopic pregnancy, meningitis, cancers, and fractures.
In a recent study in primary care settings (a Veterans Affairs facility and a private clinic), the authors were able to identify diagnostic errors from electronic health record triggers based in part on a patient’s unexpected return visit (JAMA Intern. Med. 2013;173:418-25). Of 190 cases, they identified some 68 unique diagnoses. Commonly presenting with atypical or nonspecific symptoms, these conditions included pneumonia, congestive heart failure, acute renal failure, cancer, and UTIs. Lapses in bedside history taking, physical exam, and test ordering were noted. Significantly, there was no documentation of an initial differential diagnosis in 80% of misdiagnosed cases.
Diagnostic errors occur more frequently than generally supposed, especially in specialties such as primary care and emergency medicine. They are the most frequent reason for a malpractice claim.
In a review of more than 350,000 closed claims reported to the National Practitioner Data Bank over a 25-year period, researchers from Johns Hopkins University concluded that, "among malpractice claims, diagnostic errors appear to be the most common, most costly, and most dangerous of medical mistakes." They found such errors in 28.6% of all cases, accounting for the highest proportion (35.2%) of total payments.
Diagnostic errors also caused the most severe injuries, especially in hospitalized patients (BMJ Qual. Saf. 2013;22:672-80). It has been reported that roughly 5% of autopsies uncover a diagnostic error that was amenable to appropriate treatment, and some 50,000 annual hospital deaths may be the result of a delayed, incorrect, or overlooked diagnosis.
Diagnostic errors have multifactorial causes, divisible into system-related and cognitive factors (Arch. Intern. Med. 2005;165:1493-9). In a review of 100 internal medicine cases identified through autopsy discrepancies, quality assurance activities, and voluntary reports, the researchers found the absence of fault in only 7% of cases. In the remaining 93 cases, system-related factors were present in 65% and cognitive factors in 74%.
The most common system-related factors were defective, inappropriate, or inefficient policies and procedures, and dysfunctional teamwork and communication. Clinicians know too well that procedural errors can lead to tests that go unordered, results that go unnoticed or misfiled, or a patient who fails to follow up with a referral or return appointment.
One of the most common cognitive problems is faulty synthesis with premature closure, that is, the failure to continue to consider other diagnostic alternatives after forming an initial tentative diagnosis.
Other examples are anchoring bias, where one is locked into an aspect of the case; framing bias, where there is misdirection because of the way the problem was posed; availability bias, where things are judged by what comes readily to mind such as a recent experience; and confirmation bias, where one looks for confirmatory evidence of one’s preferred diagnosis while ignoring evidence to the contrary (Acad. Med. 2003;78:775-80).
Errors may be intuitive (automatic) or analytic (controlled). The former, which is the familiar reflexive, blink-of-an-eye diagnosis based on intuition, is the more common error. On the other hand, analytic processes are conscious, deliberate, slower, and generally more reliable, though more resource intensive.
One area deserving of attention: overconfidence and complacency. Critics have pointed out that some physicians are "walking ... in a fog of misplaced optimism" with regard to their confidence, failing to critically examine their assumptions, beliefs, and conclusions (metacognition), and generally underappreciating the likelihood that their diagnoses are wrong (Am. J. Med. 2008;121:S2-S23).
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
The Nondiscrimination Provision Levels the Playing Field for Nonphysicians
Delayed Dx leads to blindness
Delayed Dx leads to blindness
A WOMAN WITH DISABLING RHEUMATOID ARTHRITIS visited her long-time internist with pulmonary symptoms. Shortly thereafter the 59-year-old patient was diagnosed with lung cancer with a moderate prognosis and underwent surgery.
The following month, the woman complained of jaw pain to her internist. She also reported an “achy” temple to the nurse who saw her initially. The internist surmised that the cause of the pain might be an allergic reaction to dye used in a CT scan the patient had undergone because the patient said the pain had begun immediately after the scan. She was treated with methylprednisolone and the symptoms improved temporarily.
Within a few weeks, the patient complained of vision problems in her left eye. An ophthalmologist to whom she was referred thought the cause might be metastasis of the lung cancer. After an MRI of the optic area, a neuroradiologist reported to the ophthalmologist that the findings were consistent with metastatic cancer.
Before the patient could keep a follow-up appointment with the ophthalmologist, she lost all vision in her left eye. When she called the internist’s office for the results of the MRI, she told the person who answered the phone about the vision loss. Her call wasn’t returned.
The patient also told the ophthalmologist’s office about her loss of vision when she received a call to remind her of her follow-up appointment. The person she spoke to claimed the patient was offered an appointment that same day with another doctor, but declined it.
On the day before the follow-up appointment, the patient lost all sight in her right eye, as well. She received emergency treatment with corticosteroids the next day, but her vision didn’t return, leaving her completely blind. A temporal artery biopsy confirmed giant cell arteritis.
PLAINTIFF'S CLAIM The patient had classic symptoms of giant cell arteritis when she saw both the internist and ophthalmologist.
THE DEFENSE No negligence occurred because the patient had additional medical conditions; the patient didn’t describe her symptoms effectively and was negligent in failing to seek emergency medical care when she lost vision in her left eye.
VERDICT $1.4 million Washington settlement.
COMMENT This is a tough case with plenty of blame to go around, but it provides a good reminder to think of temporal arteritis whenever an older patient complains of jaw pain. Sedimentation rate measurements are cheap.
Lack of vigilance ends badly
SHORTNESS OF BREATH, FATIGUE, AND DIARRHEA prompted a 36-year-old man with diabetes and hypothyroidism to consult his primary care physician. The doctor prescribed levofloxacin and told the patient to return in 4 weeks.
Three days later, the man went back to the physician, reporting weakness, diarrhea, and a fever of 103°F. The physician diagnosed bronchitis and prescribed extended-release amoxicillin tablets. Two days later, the patient went to the emergency department; a chest radiograph showed advanced bilateral pneumonia. He died about 2 weeks later.
PLAINTIFF'S CLAIM The physician was negligent in failing to order a radiograph, admit the patient to the hospital, and prescribe proper medication.
THE DEFENSE No information about the defense is available.
VERDICT $1 million New Jersey settlement.
COMMENT Shortness of breath, fatigue, and diarrhea in a 36-year-old patient with diabetes sounds potentially serious to me. Presumably the physician diagnosed pneumonia on the initial exam, and one cannot fault him for that diagnosis or the treatment he prescribed. But return in 4 weeks? No way. Such patients require close follow-up and escalation of evaluation and treatment if they’re not doing well.
Delayed Dx leads to blindness
A WOMAN WITH DISABLING RHEUMATOID ARTHRITIS visited her long-time internist with pulmonary symptoms. Shortly thereafter the 59-year-old patient was diagnosed with lung cancer with a moderate prognosis and underwent surgery.
The following month, the woman complained of jaw pain to her internist. She also reported an “achy” temple to the nurse who saw her initially. The internist surmised that the cause of the pain might be an allergic reaction to dye used in a CT scan the patient had undergone because the patient said the pain had begun immediately after the scan. She was treated with methylprednisolone and the symptoms improved temporarily.
Within a few weeks, the patient complained of vision problems in her left eye. An ophthalmologist to whom she was referred thought the cause might be metastasis of the lung cancer. After an MRI of the optic area, a neuroradiologist reported to the ophthalmologist that the findings were consistent with metastatic cancer.
Before the patient could keep a follow-up appointment with the ophthalmologist, she lost all vision in her left eye. When she called the internist’s office for the results of the MRI, she told the person who answered the phone about the vision loss. Her call wasn’t returned.
The patient also told the ophthalmologist’s office about her loss of vision when she received a call to remind her of her follow-up appointment. The person she spoke to claimed the patient was offered an appointment that same day with another doctor, but declined it.
On the day before the follow-up appointment, the patient lost all sight in her right eye, as well. She received emergency treatment with corticosteroids the next day, but her vision didn’t return, leaving her completely blind. A temporal artery biopsy confirmed giant cell arteritis.
PLAINTIFF'S CLAIM The patient had classic symptoms of giant cell arteritis when she saw both the internist and ophthalmologist.
THE DEFENSE No negligence occurred because the patient had additional medical conditions; the patient didn’t describe her symptoms effectively and was negligent in failing to seek emergency medical care when she lost vision in her left eye.
VERDICT $1.4 million Washington settlement.
COMMENT This is a tough case with plenty of blame to go around, but it provides a good reminder to think of temporal arteritis whenever an older patient complains of jaw pain. Sedimentation rate measurements are cheap.
Lack of vigilance ends badly
SHORTNESS OF BREATH, FATIGUE, AND DIARRHEA prompted a 36-year-old man with diabetes and hypothyroidism to consult his primary care physician. The doctor prescribed levofloxacin and told the patient to return in 4 weeks.
Three days later, the man went back to the physician, reporting weakness, diarrhea, and a fever of 103°F. The physician diagnosed bronchitis and prescribed extended-release amoxicillin tablets. Two days later, the patient went to the emergency department; a chest radiograph showed advanced bilateral pneumonia. He died about 2 weeks later.
PLAINTIFF'S CLAIM The physician was negligent in failing to order a radiograph, admit the patient to the hospital, and prescribe proper medication.
THE DEFENSE No information about the defense is available.
VERDICT $1 million New Jersey settlement.
COMMENT Shortness of breath, fatigue, and diarrhea in a 36-year-old patient with diabetes sounds potentially serious to me. Presumably the physician diagnosed pneumonia on the initial exam, and one cannot fault him for that diagnosis or the treatment he prescribed. But return in 4 weeks? No way. Such patients require close follow-up and escalation of evaluation and treatment if they’re not doing well.
Delayed Dx leads to blindness
A WOMAN WITH DISABLING RHEUMATOID ARTHRITIS visited her long-time internist with pulmonary symptoms. Shortly thereafter the 59-year-old patient was diagnosed with lung cancer with a moderate prognosis and underwent surgery.
The following month, the woman complained of jaw pain to her internist. She also reported an “achy” temple to the nurse who saw her initially. The internist surmised that the cause of the pain might be an allergic reaction to dye used in a CT scan the patient had undergone because the patient said the pain had begun immediately after the scan. She was treated with methylprednisolone and the symptoms improved temporarily.
Within a few weeks, the patient complained of vision problems in her left eye. An ophthalmologist to whom she was referred thought the cause might be metastasis of the lung cancer. After an MRI of the optic area, a neuroradiologist reported to the ophthalmologist that the findings were consistent with metastatic cancer.
Before the patient could keep a follow-up appointment with the ophthalmologist, she lost all vision in her left eye. When she called the internist’s office for the results of the MRI, she told the person who answered the phone about the vision loss. Her call wasn’t returned.
The patient also told the ophthalmologist’s office about her loss of vision when she received a call to remind her of her follow-up appointment. The person she spoke to claimed the patient was offered an appointment that same day with another doctor, but declined it.
On the day before the follow-up appointment, the patient lost all sight in her right eye, as well. She received emergency treatment with corticosteroids the next day, but her vision didn’t return, leaving her completely blind. A temporal artery biopsy confirmed giant cell arteritis.
PLAINTIFF'S CLAIM The patient had classic symptoms of giant cell arteritis when she saw both the internist and ophthalmologist.
THE DEFENSE No negligence occurred because the patient had additional medical conditions; the patient didn’t describe her symptoms effectively and was negligent in failing to seek emergency medical care when she lost vision in her left eye.
VERDICT $1.4 million Washington settlement.
COMMENT This is a tough case with plenty of blame to go around, but it provides a good reminder to think of temporal arteritis whenever an older patient complains of jaw pain. Sedimentation rate measurements are cheap.
Lack of vigilance ends badly
SHORTNESS OF BREATH, FATIGUE, AND DIARRHEA prompted a 36-year-old man with diabetes and hypothyroidism to consult his primary care physician. The doctor prescribed levofloxacin and told the patient to return in 4 weeks.
Three days later, the man went back to the physician, reporting weakness, diarrhea, and a fever of 103°F. The physician diagnosed bronchitis and prescribed extended-release amoxicillin tablets. Two days later, the patient went to the emergency department; a chest radiograph showed advanced bilateral pneumonia. He died about 2 weeks later.
PLAINTIFF'S CLAIM The physician was negligent in failing to order a radiograph, admit the patient to the hospital, and prescribe proper medication.
THE DEFENSE No information about the defense is available.
VERDICT $1 million New Jersey settlement.
COMMENT Shortness of breath, fatigue, and diarrhea in a 36-year-old patient with diabetes sounds potentially serious to me. Presumably the physician diagnosed pneumonia on the initial exam, and one cannot fault him for that diagnosis or the treatment he prescribed. But return in 4 weeks? No way. Such patients require close follow-up and escalation of evaluation and treatment if they’re not doing well.
Physician-assisted suicide
Question: Which is the single best statement?
A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).
B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.
C. The U.S. Supreme Court has held there is no constitutional right to PAS.
D. All are correct.
E. Only 1 and 2 are correct.
Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).1
Since that time, Washington2 and most recently Vermont,3 have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.4
What does the U.S. Supreme Court have to say about PAS?
In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.5 However, it was in the 1997 landmark case of Vacco v. Quill6 that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.
On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.
On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg7, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.
However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.8
The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.
Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.9
The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.
Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."10
Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.
Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.
The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.11
References
1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.
2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.
3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).
4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. See www.amednews.com/article/20120417/profession/304179996.
9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).
11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.
Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: Which is the single best statement?
A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).
B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.
C. The U.S. Supreme Court has held there is no constitutional right to PAS.
D. All are correct.
E. Only 1 and 2 are correct.
Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).1
Since that time, Washington2 and most recently Vermont,3 have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.4
What does the U.S. Supreme Court have to say about PAS?
In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.5 However, it was in the 1997 landmark case of Vacco v. Quill6 that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.
On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.
On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg7, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.
However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.8
The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.
Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.9
The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.
Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."10
Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.
Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.
The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.11
References
1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.
2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.
3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).
4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. See www.amednews.com/article/20120417/profession/304179996.
9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).
11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.
Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
Question: Which is the single best statement?
A. In 1994, Oregon became the first U.S. state to legalize physician-assisted suicide (PAS).
B. To date, PAS is legal in three other states: Washington, Montana, and Vermont.
C. The U.S. Supreme Court has held there is no constitutional right to PAS.
D. All are correct.
E. Only 1 and 2 are correct.
Answer: D. "Measure 16," as it was famously known at the time, was Oregon’s initiative that garnered a majority vote in 1994 and allowed the state to become the first in the United States to legalize physician-assisted suicide (PAS).1
Since that time, Washington2 and most recently Vermont,3 have joined Oregon in legalizing PAS, while the state Supreme Court of Montana has held there is no public interest reason against the use of PAS in that state.4
What does the U.S. Supreme Court have to say about PAS?
In 1990, it unambiguously endorsed a patient’s right to forgo medical treatment, including artificial hydration and nutrition.5 However, it was in the 1997 landmark case of Vacco v. Quill6 that the court carefully distinguished between assisting suicide and withdrawing life-sustaining treatment, emphasizing issues of causation and intent.
On causation, the court reasoned that when a patient refuses life-sustaining treatment, he dies from an underlying fatal disease. But if a patient ingests a lethal medication, he is killed by that medication. As to intent, a physician who honors a patient’s refusal of treatment purposefully intends only to respect his patient’s wishes and to cease doing futile or degrading things.
On the other hand, a doctor who assists a suicide "must, necessarily and indubitably, intend primarily that the patient be made dead." In its companion case Washington v. Glucksberg7, the Supreme Court held that the asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.
In the vast majority of jurisdictions, assisting or causing one to commit suicide, including physician-assisted suicide, remains a crime, for example, manslaughter under Hawaii law Section 707-702, and a felony in California under Section 10.401.
However, some advocates of PAS have construed the absence of a specific statute outlawing PAS, or the existence of liberal living-will statutes or other state law, as tacit condoning of PAS. They assert that the term PAS is a misnomer, as the act is one of assisting a dying patient, not causing a suicide. Such interpretations, however, can be expected to face state challenges.8
The relevant state statutes where PAS is legal provide similar provisions and safeguards. Only competent individuals who are terminally ill (death expected within 6 months) can make a request for a lethal dose of medication to carry out the suicidal act. The request to the doctor is first made verbally, then in writing, and a second opinion must be obtained to confirm the patient’s intent, understanding, and free choice. There is also a waiting period.
Even in states where PAS is legal, only a minority of physicians are participants. For example, 61 physicians in Oregon wrote a total of 115 prescriptions in 2012; there were 77 known Death With Dignity Act deaths in Oregon that year.9
The main arguments for legalizing PAS include patient autonomy, dignity, and relief from intolerable pain and suffering. Opponents, fearing the slide down the slippery slope, assert that no patient needs to suffer, because highly effective palliative care is readily available. Besides, allowing physicians to facilitate the death of their patients threatens the integrity of the medical profession.
Like most professional organizations, the American Medical Association is strongly opposed to PAS. Its Code of Medical Ethics states: "Allowing physicians to engage in assisted suicide would cause more harm than good. Physician-assisted suicide is fundamentally incompatible with the physician’s role as healer, would be difficult or impossible to control, and would pose serious societal risks. ... Instead of participating in assisted suicide, physicians must aggressively respond to the needs of patients at the end of life."10
Emotions can run high over the PAS issue, as evident in the hysteria that spilled over a provision in the health care reform bill during the Affordable Car Act debate. Section 1233 of "Advance Care Planning Consultation (ACPC)" in the bill would have reimbursed providers for voluntarily discussing with Medicare patients designated end-of-life topics such as advance directives, surrogacy, life-sustaining treatment, and palliative care, including hospice. However, nothing in Section 1233 suggested cost containment was a motive, nor did the bill express any preference for a treatment to be implemented or forgone.
Nonetheless, the ACPC spawned claims about "death panels" and government-imposed euthanasia, its true motive impugned as a money saver rather than to ensure appropriate care at the end of life. One politician even raised the specter of the government encouraging the putting of seniors to death.
The politics of the day quickly caused the U.S. Senate to drop ACPC from further debate, and it never became part of the Obamacare law.11
References
1. Oregon’s Death with Dignity Act. Or. Rev. Stat. Section 127.800.
2. Washington’s Death with Dignity Act. Wash. Rev. Code Section 70.245.
3. Vermont Act 39 (Bill S.77 "End of Life Choices"; law passed May 20, 2013).
4. Baxter v. State of Montana, 224 P. 3d 1211 (2010).
5. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990).
6. Vacco v. Quill, 117 S. Ct. 2293 (1997).
7. Washington v. Glucksberg, 521 U.S. 702 (1997).
8. See www.amednews.com/article/20120417/profession/304179996.
9. Statistics available at public.health.oregon.gov under Oregon Death with Dignity Act.
10. AMA Code of Medical Ethics, Section 2.211 (2012-3 ed., p. 117).
11. Piemonte and Hermer, Avoiding a "Death Panel" Redux. Hastings Center Report 2013;43:20-8.
Dr. Tan is emeritus professor of medicine at the University of Hawaii and director of the St. Francis International Center for Healthcare Ethics. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at siang@hawaii.edu.
