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Lawsuits Against Interventionalists: Understanding the Clinical Details of the Malpractice Landscape
“Nothing focuses the mind like a hanging,” according to Dr. Samuel Johnson. Similarly, few events focus the minds of physicians more than malpractice lawsuits. Clinical events that result in lawsuits are seared into the memories of the defendant physicians, as well as their colleagues, and can shape future decisions for years. Understanding the clinical details of these lawsuits may help us avoid them or minimize their effects.
Review of the Data
Cardiology is a higher-risk specialty with respect to medical malpractice; interventionalists face even more unique liability risks because of their performance of invasive procedures. Only recently has the interventional community started to understand the clinical context of these lawsuits — a crucial step in revealing pitfalls in the liability landscape. In contrast to noninvasive cardiology — where lawsuits tend to be due to alleged diagnostic errors — for interventionalists, all eyes are on procedural mishaps. Recent data from The Doctors Company, the nation’s largest physician-owned medical liability insurer and the preferred provider of the American College of Cardiology, revealed the details of 93 closed claims occurring between 2007 and 2013 for three procedures — cardiac catheterization, stenting and angioplasty. Analysis of these data is illuminating for both physicians and patients.
Among the factors contributing to patient injury, the top allegation aimed at interventionalists was “improper performance/possible technical problem,” which was implicated in 49% of cases. Unsurprisingly, nearly 60% of the malpractice suits against interventional cardiologists involved left heart catheterization. Its high prevalence in this dataset is likely due to the high frequency with which the procedure is performed, as well as an increased likelihood of complications with this particular procedure. Not only is there a higher complication risk with obtaining arterial access, but patients requiring left heart catheterization are also likely to have more comorbidities than the general population.
Sandeep
Mangalmurti
Of the 167 injuries recorded for these 93 claims, death was the most common outcome (38%), with more than half of these deaths blamed on a puncture or perforation. Other injuries included a need for surgery (20%), hemorrhage (18%) and an aggravated/worsened condition (17%). Some patients claimed multiple injuries against the same interventionalist, such as inappropriate vascular perforation, leading to hemorrhage and surgery.
Only one other recent study has examined the clinical details of lawsuits against interventionalists. Published in the American Journal of Cardiology in 2013 by Candice Kim, MD, and Mladen I. Vidovich, MD, the researchers’ findings echo The Doctors Company data in showing that the most common alleged error was for improper performance (35% of cases), with death being the most common injury outcome (44%).
Possible Solutions
Cardiologists would be well served by educating themselves on the current liability landscape. Obtaining a detailed knowledge of the law is not realistic, but there are resources available to explain the basics. For example, the ACC offers maintenance of certification training oriented toward reducing liability claims against cardiologists. In addition, The Doctors Company maintains extensive educational resources to assist physicians seeking to expand their knowledge of this topic (see For More Information for website addresses).
It is clear that practicing defensive medicine isn’t a solution. But beyond our own continual efforts to improve patient care, we need to do a better job of apprising patients of procedural risks. It would seem obvious, but this basic advice bears repeating: All risks should be explained in a very clear, straightforward manner, with no information omitted. Documentation should be detailed and complete.
Sometimes, however, this is not enough. One striking aspect of the aforementioned data is that even though many of the potential complications were known to patients prior to the procedure, they chose to sue anyway. This is troubling; cardiac procedures come with inherent risks that no amount of training or caution can eliminate completely. How then should interventionalists try to protect themselves against lawsuits secondary to known procedural complications?
One possible answer might be found by examining the actual lawsuits themselves. In many cases, the alleged malpractice is not the complication — it’s a failure to act on the complication. For example, if a patient suffers a retroperitoneal bleed after femoral artery puncture, the real legal danger may be from failure to check a follow-up CT scan or perform a femoral angiogram. Similarly, a patient who undergoes intervention is at risk for coronary artery perforation; if he becomes hypotensive, failure to order a transthoracic echo to rule out cardiac tamponade, not the perforation itself, may be the hook upon which a lawsuit is based.
In the end, it is likely that some lawsuits against interventionalists are simply unavoidable due to an inevitable percentage of complications and side effects. One of the best ways for interventionalists to minimize liability exposure when a complication occurs is to know that all of their subsequent actions are under a microscope. Necessary tests should be ordered in a timely manner; every detail of the case must be documented to the highest standards; and there needs to be a heightened sense of alertness once the clinician recognizes that the case has ceased to be routine.
EHRs in Practice
No discussion of documentation would be complete without an appreciation of the growing role of electronic health records (EHRs) in clinical practice. The unique characteristics of EHRs will play a growing role in future liability suits, and interventional cardiologists may find that this technology can both decrease and increase liability exposure. The potential ease, consistency and detail of electronic documentation may strengthen attempts to obtain informed consent, and help prevent gaps in the informed consent process that might be a source of legal vulnerability.
However, electronic documentation can also present liability pitfalls, particularly when there is a procedural complication. Unlike paper documentation, electronic record-keeping is completely transparent. Every interaction with an electronic interface is recorded and time stamped, leaving an electronic footprint that must be turned over to opposing counsel on request, in the event of a lawsuit. If there is a procedural complication, the plaintiff’s counsel might be able to reconstruct a detailed narrative of the physician’s actions after the complication. They will be able to discover, to the minute, how long it took a cardiologist to order an echocardiogram after a post-catheterization patient became hypotensive. They will be able to discover, to the minute, when the cardiologist ordered a CT and complete blood count to evaluate for a retroperitoneal bleed. They will even be able confirm whether a physician looked at these results and for how long. Needless to say, this level of transparency can be double-edged. In some situations, it may protect a cardiologist by supporting his version of the events of the case. Alternatively, it may undermine the cardiologist’s credibility by supporting the plaintiff’s claims of carelessness, inattention to detail and failure to act in a timely manner.
Clinical Implications
In the long term, understanding the clinical details of malpractice claims may also lead to policy change. Are cardiologists facing a high number of meritless lawsuits? Are there specific clinical scenarios which are particularly unfair to physicians? Conversely, are there other clinical situations where the threat of a lawsuit actually enhances patient care? Understanding the answers to some of these questions may point providers and policymakers toward necessary changes in the malpractice landscape.