Risk Management

Collegial Criticism Could Land You in Court

By Paul Weber, JD

Argus, September, 1993

One of the most common catalysts of medical malpractice lawsuits is an inadvertent or deliberate critical comment by a health care professional about a colleague’s actions. Many defense attorneys estimate that 25% of all claims against physicians may be triggered by a comment made by another physician or the physician’s staff.

Sometimes a plaintiff’s counsel takes a shotgun approach when naming defendants in a medical malpractice lawsuit either because the plaintiff is uncertain who actually caused or is responsible for the alleged injury, or as part of an overall “divide and conquer” strategy. OMIC often manages claims against its insureds in which other physicians, hospitals, nurses and HMOs are named as co-defendants. When physicians communicate with patients who have suffered an iatrogenic injury, factual and tactful documentation with discretion can help avert, or avoid encouraging, claims of alleged medical malpractice.

According to the Physician Insurers Association of America, almost 70% of all claims reported against physicians arise in a hospital, and one half of those occur in the operating room. Hospital records are often the first to be reviewed by the plaintiff’s attorney when evaluating a potential claim.

For example, OMIC defended a claim against an insured-ophthalmologist who performed cataract surgery using phacoemulsification. During surgery, the phacoemulsification unit became hot very quickly and burned the patient’s cornea. It was later discovered that the irrigation line had not been hooked up when the phaco unit was handed to the ophthalmologist. It is tempting in this type of situation for the surgeon to blame the hospital staff or the equipment when documenting the incident in the operative report. To this insured’s credit, she accurately and factually described the steps in the procedure, including the burn by the phaco tip, omitting any comments that placed blame or described an equipment malfunction.

In this case, prudent charting by the ophthalmologist did not prevent a claim from being brought against the ophthalmologist and the hospital. However, by not blaming someone else, the ophthalmologist reduced the plaintiff attorney’s ability to exploit a conflict between the defendants themselves.

Cases often arise when one or more treating physicians allegedly miss a diagnosis. The strongest defense in multiparty lawsuits is generally a unified one. In cases of a missed diagnosis, however, co-defendants often find their interests in conflict, particularly if different liability insurance companies are involved.

Another OMIC case involved a general ophthalmologist who was called in as a consultant by an internist to examine a patient in the hospital. The patient had a history of acute sinusitis and was experiencing visual disturbances in her left eye subsequent to an ethmoidectomy. Visual acuity was 20/80 OU and IOP was 15mm Hg OU. A dilated fundus exam revealed macula edema, which the ophthalmologist attributed to an inflammatory reaction secondary to sinusitis. The ophthalmologist next saw the patient four days later in his office for a full eye exam. By then, the patient’s vision had greatly deteriorated, and the ophthalmologist diagnosed giant cell temporal arteritis. He prescribed steroids and referred the patient to a neuro-ophthalmologist. Unfortunately, the patient eventually lost vision in both eyes and subsequently sued the general ophthalmologist, the internist and the hospital.

During depositions, the patient’s husband stated the first indication that anyone might have done something wrong was when the neuro-ophthalmologist, who was insured by another carrier, commented that “this should never have happened.” The neuro-ophthalmologist made this statement before he had reviewed all the records or discussed the examination and treatment of the patient with her internist and the general ophthalmologist. Criticism by the neuro-ophthalmologist clearly was a factor in precipitating a lawsuit. Since he did not have all the records and was not present at the initial treatment, it was improper and premature for him to have commented on the care rendered by his colleagues. Ordinarily, a patient outcome like this can be defended. But this case was difficult to resolve because the defendants were unable to mount a unified defense and each accused the other of missing the diagnosis. This case was finally settled on the courthouse steps.

It is morally and legally wrong for physicians to conceal information or to keep the truth from their patients. However, a subsequent treating physician should refrain from coming to conclusions or implying carelessness or negligence before knowing all the facts. Such comments only aggravate already unfortunate situations and may precipitate lawsuits against colleagues.