Articles Posted in Standard of Care

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Summary: Just because a doctor’s action or inaction fell below the standard of care does not mean that he or she was negligent.

I watched the first episode of “Monday Mornings,” a television series that was on TNT created by David E. Kelley.  Mr. Kelley has created or been involved in various series including: (1) Ally McBeal; (2) Boston Legal; (3) Boston Public; (4) Chicago Hope; (5) Doogie Howser, M.D.; (6) LA Law; and (7) Picket Fences. This show involved five surgeons in a hospital and explored their professional and personal lives.

The reason I am writing a post on this episode is based on a scene involving peer review of one doctor’s case.  The most common educational setting for this review and discussion is known as Morbidity and Mortality (“M&M”).  This is where physicians discuss other doctors’ behavior or analyze an adverse event.  The information gleaned during M&M is not discoverable in most states.  The reason is to have open communication and enable doctors to learn from their mistakes and try to prevent future ones.  Doctors are going to be less forthcoming with regard to errors they have made if what they say can be used in a medical malpractice case.

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CAN WE SAY “ MEDICAL MALPRACTICE WAITING TO HAPPEN?”

By: Patricia I. James

There is a private group that oversees physician training in the United States called the Accreditation Council for Graduate Medical Education ( “ACGME”). One aspect of its duties has to do with the number of hours a physician can work in a shift.

In 2011, when mounting evidence showed exhausted residents, that is, doctors in training, were endangering patients and themselves, work restrictions of no longer than 16 hour shifts were put in place. However, earlier this year, the ACGME, in its infinite wisdom, decided that, as of July 1, 2017, these first year residents are allowed to work 24 hours without a break and, sometimes as long as 28 hours, if a particular transition between doctors demands it.

The ACGME defended its position by stating that “[t]he Task Force [review panel] has determined that the hypothesized benefits associated with the changes made to first-year resident scheduled hours in 2011 have not been realized and the disruption of team-based care and supervisory systems has had a significant impact on the professional education of the first-year resident, and effectiveness of care delivery of the team as a whole.” This conclusion was based on “over 4,200 hours formulating the new requirements, including systematically reviewing over 1,000 published articles and extensive input from all stakeholders.”

One of the task force members, Dr. Anai Kothari, said that the cap would occasionally prevent doctors from seeing a treatment or surgery through from beginning to end. Patients want to know “you are the doctor taking care of them.”

I don’t know about you, but I would rather know that my doctor was well rested before seeing my surgery through. Granted, I surmise that a first year resident is not going to be the one actually operating on me. However, why would I want someone even assisting a surgery who was on hour 27 of his or her 28 hour shift?

The ACGME further supported its position by stating, through its chief executive, Thomas Nasca, that “[t]raining to become a practicing physician can be compared to training for a marathon. With enough experience comes resilience and the ability to perform under expected, sometimes challenging conditions.”

Of note is the fact that the American Medical Student Association, the Committee of Interns and Residents and the Public Citizen’s Health Research Group all oppose the change. The director of the latter, Dr. Michael Carome, has stated that “[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public. It is disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health.

Charles Czeisler, a professor at Harvard’s Brigham & Women’s hospital, stated that “[i]t is very well established that staying awake for 24 hours severely degrades performance.” In one trial, Czeisler and his colleagues found that first year resident working in the intensive care unit for 24 hours or more made 36 percent more serious medical errors than those working shorter shifts. At times, the Harvard researchers found residents sleeping while standing up.

The ACGME added that “it is important to note that 24 hours is a ceiling, not a floor. Residents in many specialties may never experience a 24-hour clinical work period.”

First, the 24 hours is not a ceiling since they are allowing up to a 28 hour shift. Second, even though some residents may never have to work a 24 hour shift, what matters is those who do. Obviously, as set forth above, some of these resident are working in the intensive care unit. INTENSIVE CARE UNIT? ARE YOU SERIOUS?

I’m guessing here but I think if ACGME’s chief executive Thomas Nasca was in intensive care, he would opt for a fresh faced resident about one hour into their shift as opposed to a resident who was crawling into the last hours of their shift.

Now, perhaps, as Mr. Nasca said, with enough experience working 24 to 28 hour shifts, the residents will develop that resilience. However, what about the patients/guinea pigs (a subject of research, experimentation, or testing) who are treated until they attain that resilience? Personally, I would opt but how would I know? Is this something that is going to be included in a consent form, a disclosure that some of the team that is going to be treating the patient might be working over 16 hours? I wonder how small that print will be on the form, assuming it is included (which I doubt).

I don’t know what to tell you. This is scary. It really does not take a study to figure out that working more than 16 hours (or maybe even 12 hours) is going to lead to mistakes because no one is going to give their best performance when they are exhausted. However, the ACGME has spoken so we will have to live (or die) with it.

Dear Readers,

Having perused this post, what do YOU think?

PJ
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Written by :  Patricia I. James**

In Post #7, I wrote about the cap of $250,000 on non-economic damages in California.  Basically, I said that it was an unfair cap that had not been revised since it was established in 1975.

In Post #14, I wrote that, if the Gavello case went to the California Supreme Court, it might find that the cap was unconstitutional.  I did not give that much hope but it was a thought.

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Written by: Patricia I. James**

I watched the first episode of “Monday Mornings,” the new television series on TNT created by David E. Kelley. Mr. Kelley has created or been involved in various series including Ally McBeal, Boston Legal, Boston Public, Chicago Hope, Doogie Howser, M.D., LA Law and Picket Fences. This show involves five surgeons in a hospital and explores their professional and personal lives.

The reason I am writing a post on this episode is based on a scene involving peer review of one doctor’s case. The most common educational setting for this review and discussion is known as Morbidity and Mortality (“M&M”). This is where physicians discuss other doctors’ behavior or analyze an adverse event. The information gleaned during M&M is not discoverable in most states. The reason is to have open communication and enable doctors to learn from their mistakes and try to prevent future ones. Doctors are going to be less forthcoming with regard to errors they have made if what they say can be used in a medical malpractice case.