Doctors and liability question

[draco664]

I suppose it may also come down to insurance - is the doc/surgeon going to be paid for performing the operation? Some docs do donate their time, but the hospital needs to pay for the equipment, nurses, drugs and all sorts of other miscellaneous things. If the insurance company isn't going to cover it all, then that right there is a reason to deny the operation.

[Panacea]

Should a doctor refuse a life saving surgery in order to avoid a lawsuit if the patient does not make it through surgery due to a different medical condition?

I know a person who almost was denied surgery to remove a malignant tumor because of high blood pressure. This person was at a low to moderate risk of heart attack and the surgeon did not want to be liable if the stress from surgery/recovery caused a heart attack. The tumor has not spread yet but it is a type that will spread slowly and is fatal if untreated. Thoughts? Opinions? I am not sure where I would say the line is between life saving and life risking.

I'm thinking we don't have the whole story here. Surgeons operate on hypertensive patients all the time. If the patient was TOO hypertensive, they would treat the hypertension, then operate. Ditto if too hypotensive.

Without the whole story, I can't offer an informed opinion on this case.

Hospital #2 - "on call" orthopedic doctor refused to come in to take care of it (happened at 1:30 AM). He also refused to see her when he first came in, we had to get another doctor to do it - 15 hours later w/ no meds.

Both times many lawyers said we didn't have a case.

You be the judge.

On call orthopod committed an EMTALA violation (Emergency Medical Treatment and Labor Act). Problem is, it's really hard to enforce (look at CS thread You will COMPLY and review my story of the EMTALA violation an ER committed when I sprained my ankle last April). Orthopods are notorious for doing this; they often don't get reimbursed for what are very expensive procedures. So they try to pass it off.

It's a major complaint, and one that got talked about a lot at a professional conference for ER nurses I went to a few years ago. So far no solution, though

I am confused... how can a doctor can be so concerned about something potentially going wrong during a surgery which might result in a patient dying, but the same dr. not concerned about not doing the surgery which will result in the patient dying?

It's a combination of a couple of factors. 1) Do no Harm. The surgeon won't operate if the operation will make the patient worse, even if he knows the patient is dying. It's unethical.

2) It hurts their statistics. Surgeons don't like deaths on their statistics; it causes the state to come in and look at them funny.

One important question - are you sure it was the surgeon who refused to do it, or was it the hospital, or the insurance company?

Most likely the surgeon. Hospitals rarely get involved in surgical decision making except on a case by case basis if the case is brought before the ethics board.

No insurance company will refuse to cover surgery if it is deemed emergent, and the doctor doesn't even have to request pre-authorization in such cases.

I thought that doctors can also be sued for not doing a necessary procedure, or am I mistaken? (not in this situation but if the situation is more immediately life or death)

He can only be sued if you can prove he did not do the surgery due to negligence or malpractice. For example, if you have blatant late decelerations on a fetal heart monitor (fetal bradycardia or slow heart beat) and the OB doesn't do a c-section, he might be liable if the baby dies or is born with brain damage.

I suppose it may also come down to insurance - is the doc/surgeon going to be paid for performing the operation? Some docs do donate their time, but the hospital needs to pay for the equipment, nurses, drugs and all sorts of other miscellaneous things. If the insurance company isn't going to cover it all, then that right there is a reason to deny the operation.

That is sometimes a consideration, unfortunately. I knew a general surgeon who was notorious for delaying surgery on patients who had no insurance, because he knew he'd never get paid.

One day he's on call and we get a homeless guy with necrotizing fasciitis (flesh eating bacteria) in his leg. He needs immediate surgery. He's stable enough for surgery (vitals stable, no shock), and the OR is ready but the surgeon won't go to the OR. Instead he wastes nearly an hour calling every hospital in Northern California trying to do an EMTALA transfer. The hospitals all refuse: the patient is stable for surgery, and the surgeon can do the surgery at our hospital (you can only transfer a patient if he needs a higher level of care, EMTALA is the anti dumping law and that's exactly what this surgeon was trying to do).

I finally had to get the nursing supervisor involved (I was the charge nurse) when he refused to budge and insisted on making more phone calls. He wouldn't budge for her either. I threatened to call the Chief of Staff (head doc for the hospital), and that finally got him off his ass and to the OR.

Patient lived, but he lost more of his leg than he should have because the infection was spreading so quickly. It matters; the higher the amputation, the more difficulties in fitting and using a prosthetic leg.

However, in emergent situations, both doctors and hospitals are obligated to provide care regardless of ability to pay (part of the EMTALA law)

[Seshat]

Australian law is different from American law, and for subtle reasons, we have fewer claims of malpractice. One of those reasons is the way malpractice is determined, and the way legal responsibility is handled.

Honest mistakes are not malpractice, and cannot be considered for malpractice.
Informed consent is informed consent, and if you know the risks of an honest mistake, well, that's the luck of the draw.

This is not to say that if my gastroscopy had resulted in a hole in my esophagus I'd have been left to hang in the wind! Yes, the hospital would have taken me straight to emergency surgery and corrected it. Yes, I would have had all the appropriate treatment, at the hospital's expense.

But no, I wouldn't have been eligible for any sort of 'pain and suffering' claim. I knew the risk, I accepted it. Luck of the draw.

(Now, if the doctor had been negligent, or the hospital had knowingly hired an incompetent to do gastroscopies, that would have been different. But if I'd just been the 0.001% of patients whose luck runs out? Well, that's life.)


Because of that, our doctors seem to be more free to base medical decisions on medical matters alone.

In the case of the hypertensive patient with a tumour, I agree with Panacea. Without having more information, my guess would be that the doctor would treat the hypertension, then operate.

In the case of the guy with the bovine heart valve but the fragile lungs, the question would be how fragile are the lungs? How much pain&suffering would the heart valve replacement cause, vs how long would the patient live due to the lung issues? What's the best decision for quality (rather than quantity) of life?
And is there a scarcity of available replacement valves? Would we be giving this patient one year of miserable life and denying another patient ten years of high quality life?

Medical decisions can suck.

[Panacea]

What a lot of Americans fail to understand about malpractice is there are far fewer claims that make it to court than one might believe.

Going to court is expensive. No malpractice lawyer will file a claim until a medical expert has looked at the chart to tell him if he's got a case or not. In some states you have to have a medical or nursing expert state a violation of the standard of care occurred before a judge will let a case proceed.

That's actually a high standard to reach. I do some legal nurse consulting. I've had many charts where I've told the lawyer "sorry, the doctors and nurses didn't do anything wrong here."

I've had other cases where the defendant just needs to write the check and move on.

States that have implemented payout limits have had little to NO reduction in malpractice claims and little to no effect on malpractice insurance rates, especially in large metropolitan areas. Caps are not the way to go.

What studies DO show is that when doctors admit to a mistake, patients and families are less likely to sue. It's when they do a cover up that patients get pissed, wondering "what else did they lie about?"

[Glados]

More great information. I just wanted to add that our family is in no way considering a lawsuit. I am interested in legal/ethical issues and always try to get perspectives and learn on the subject. Medical is an area where I know nothing about legalities and very little about ethics.

I wish I had more information on the situation but the person who is having the surgery is adamant that hubby and I not be bothered with the issues because we have two small children. She is relying on other family for help and support for that reason and keeping our involvement to the minimum of keeping us informed.

On the bright side, she did have the surgery and came through AMAZINGLY well. Her elevated BP ended up only being 140/xx so they went ahead with it.

[Panacea]

Very glad to hear it!!!

[HYHYBT]

Yay! Good news is always welcome!

(On the side, this borrowed computer claims I've spelt "yay" wrong. It didn't like either "Facebook" or "FaceBook" either.)

[draggar]

Most likely the surgeon. Hospitals rarely get involved in surgical decision making except on a case by case basis if the case is brought before the ethics board.

No insurance company will refuse to cover surgery if it is deemed emergent, and the doctor doesn't even have to request pre-authorization in such cases.

On many occasions my father in law had surgeries refused or cancelled because either the hospital didn't want to pay or the insurance company wasn't going to pay. He almost lost a patient once over these delays.

He said things like this are also not uncommon at all. The medical industry here in the USA is a mess and it's more about profit margins than actually caring for the patients. This all happened when hospitals started to become "for profit" back in the very late 1980's into the late 1990's.

On the bright side, she did have the surgery and came through AMAZINGLY well. Her elevated BP ended up only being 140/xx so they went ahead with it.

Great news!