Unexpected adverse outcomes can lead to allegations of medical malpractice; however, in the oncology specialty, many of the adverse outcomes are not unexpected. Nevertheless, the stressors of a lawsuit are devastating. Being aware of potential vulnerabilities can help reduce exposure. This article focuses on lessons learned from a review of closed claims with a loss paid on behalf of the SVMIC-insured oncologist.
A review of paid oncology claims from 2001-2016 revealed that, excluding errors in medical judgment, there were 3 basic areas that contributed to the determined indefensibility of the claims, as illustrated in the graph below.
Across all specialties, SVMIC continues to see medication issues as a leading source of claims and this holds true for this particular specialty as well. Unique to oncology are the complex chemotherapy regimens where a miscalculation or medication error can be serious, as seen in the following two examples:
The first involved an infusion pump error in which the 5-FU ordered to be given over 46 hours was infused over an hour causing a loss of hearing, vision impairment, numbness in extremities, severe stomatitis and pain in a 69-year-old woman. The infusion company programmed the infusion pump erroneously, and the nurse failed to look at the pump screen to verify the correct dosage and rate before starting the pump. The plaintiff was successful in her allegations that the physician failed to provide proper oversight and training for his staff.
The second example involved a chemotherapy nurse who accidentally picked up the wrong syringe from under the protective hood and administered Vinblastine instead of 5-FU. The patient immediately developed light-headedness with tingling in the extremities and suffered long-term peripheral neuropathy. It was later discovered that another nurse had prepared the Vinblastine and set the unlabeled syringe down next to the 5-FU syringe.
Documentation issues were a factor in 36% of paid claims, with inadequate documentation as the key contributor to the indefensibility of the case. Maintaining a well-documented medical record, from both a patient care and a risk management standpoint, is crucial. It is impossible to document every event that occurs in the physician/patient interaction, but a few additional facts documented in the medical record can make cases appear quite differently to an outside observer. When a claimant presents a medical malpractice claim, the medical judgment of the provider is evaluated based upon the reasonableness of the decisions he/she made. It is critical that the important facts be documented; failure to include the rationale for medical decision making can hamper the defense. Inadequate documentation was a factor in the following two examples:
A 60-year-old patient with a known history of ovarian cancer was started on a chemotherapy protocol for suspected metastatic ovarian cancer. The diagnosis was made based on a CT scan that showed liver lesions with a CEA and CA 125 that were within the normal range. Following two rounds of chemotherapy, the patient self-referred to another oncologist who ruled out all signs of metastatic disease and maintained that the patient had been misdiagnosed. The patient filed a lawsuit alleging emotional injury due to the misdiagnosis as well as unnecessary treatments. In the lawsuit, the patient argued that further confirmatory tests (MRI, liver biopsy) were needed to confirm the presence of recurrence. Unfortunately, there was no documentation in the medical record to support the rationale for proceeding with treatment without confirmatory testing.
An oncologist treating a 56-year-old with hairy cell leukemia and known sulfa allergy allegedly failed to convey the risks/benefits/alternatives of using sulfamethaxazole as a critical support drug while the patient underwent a Leustatin® infusion. The patient suffered a severe allergic reaction and Stevens- Johnson syndrome ensued, followed by death. The oncologist did not think the patient had a true allergy but rather a sulfa intolerance issue, and, in his mind, the potential benefits of preventing pneumonia while the patient was immunosuppressed outweighed the risks of administration. In his deposition, the oncologist testified that this discussion took place with the patient and her husband, but he failed to document it. That testimony allowed the plaintiff’s attorney to postulate that, had the patient been aware of the risk, she would have likely declined the medication. Without the documentation, it became the husband’s word against the physician’s making the case less defensible.
Effective communication is essential in establishing trust and building good patient rapport, which in turn plays a role in a patient’s perception of the quality of care received and helps ensure compliance. Communication breakdowns occurred in 27% of the reviewed claims. The case below exemplifies a breakdown in communication further complicated by documentation issues.
A 61-year-old with lung cancer was admitted with fever, cough and weakness after a round of chemotherapy. The on-call physician rounded Saturday morning and made a brief note that the patient was complaining of a little shortness of breath but not in any distress. That evening and the following Sunday morning, the hospital nurses called regarding continued and increasing shortness of breath. The physician’s triage nurse handled these calls. The patient coded the next day and died. An autopsy showed a pericardial effusion and cardiac tamponade. The lawsuit alleged that the oncologist missed an opportunity to save the life of the patient through earlier intervention and diagnosis of the pericardial effusion. The absence of a thoughtful physical exam during the Saturday morning rounds when the patient first complained of shortness of breath and the apparent lack of clear communication between the parties involved regarding the well-being of the patient painted the picture of a complacent physician who relied too heavily on his nurse. A complicating factor for the defense was that the oncologist dictated the discharge summary a week later and then subsequently dictated a more complete version (that appeared self-serving). The delayed dictation and attempt to embellish on the prior note were factors in the indefensibility of this case.
Carolyn Akland is a Program Development Specialist in the department of Risk Education and Evaluation Services for SVMIC where she develops educational programs based on the lessons learned through claims analysis. Ms. Akland graduated from St. Olaf College with a BSN and from the Massey School with an MBA. She worked as a nurse in clinical, quality, military and business settings before joining SVMIC in 2003 as a Risk Evaluation Specialist.
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