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Month: June 2014

Causation: The Key Element of Oncology Litigation

Posted on by Burton Bentley II, M.D FAAEM

All successful medical negligence claims require four cardinal elements: duty, breach, harm, and causation. In oncology litigation, however, the element of causation assumes paramount importance. The reason is that many tumor processes are lethal within a defined period of time independent of brief delays in diagnosis or debatable errors in treatment. This fact often forms the foundation of solid defense theory though it frequently blind-sides an ill-prepared plaintiff.

The key to utilizing a causation argument is to first fully understand the specific characteristics of the tumor. These tumor traits determine how aggressively a tumor will attack its host which in turn dictates the overall prognosis. The most relevant tumor-specific characteristics are identity, stage, and doubling time.

The tumor identity is the most important trait since it determines the overall prognosis. Benign tumors (e.g. cerebral meningioma) are typically non-aggressive, less invasive, and not prone to recurrence. Malignant tumors (e.g. squamous cell lung cancer) typically attack in an aggressive and invasive fashion, often with a tendency to metastasize and recur. Although imaging studies may provide compelling evidence of the presumed tumor type, only a tissue biopsy analyzed by a pathologist can determine the specific identity.

Tumor stage is another critical prognosticator that essentially describes how aggressively the tumor has behaved. There are numerous staging systems for specific tumor types, though the most common system for the staging of solid tumors is the TNM system. “TNM” (standing for Tumor, Nodes, Metastases) describes the size of the tumor, the involvement of nearby lymph nodes, and the presence of tumor that has spread from the original site. In general, “favorable” tumors are those identified at an early stage — small size and no spread beyond the tumor itself.

Doubling time, a measure of how quickly a cluster of tumor cells doubles in mass, is another key factor in determining prognosis, thought it is not necessarily calculated for many tumor types. When determined, it does provide insight into how aggressively a tumor may behave.

In litigation, tumor identity, staging, and doubling time all come into play in building or defending a causation argument. For example, if a specific tumor type has a dismal prognosis (e.g. pancreatic cancer), then a delay in diagnosis may have been inconsequential. If a tumor already presented in an advanced stage with metastasis, then an error in management may not necessarily affect the outcome. If a tumor has a defined doubling rate, then it may be possible to extrapolate forward or backward to determine the stage of the tumor at various points in time — a critically important task that can make or break causation.

Only an experienced, Board-Certified oncology medical expert witness can credibly evaluate these complex variables. Without a thorough understanding of the oncologic basis of causation, it is impossible to develop a strategic plan or to predict the outcome of a cancer-based claim.

To learn more about Oncology and Oncology expert witnesses, you may view our Oncology Expert page.

To consult with an ELITE physician or nurse about your next Oncology case, please feel free to contact us at any time for a complimentary consultation.

Critical Facts You Need to Know About Hospital Medicine Liability

Posted on by Burton Bentley II, M.D FAAEM

Hospital Medicine is a branch of medicine dealing with acute patient care, teaching, and research, all within a hospital-based healthcare system. Consequently, Hospital Medicine focuses upon variables that are unique to hospital settings rather than specific diseases or demographics. The term Hospitalist refers to hospital-based physicians who care for hospitalized patients. This differs from other primary care providers who maintain an office-based practice while also following their own hospitalized patients. Hospitalists admit patients to the hospital, administer day-to-day care, write orders, obtain consultations, perform quality assurance, and coordinate patient discharge. In this capacity, Hospitalists are the “primary care providers” for hospitalized patients.

With over 30,000 active practitioners, HOSPITAL MEDICINE is one of the fastest growing areas of medical practice. Despite its exponential growth, the field of HOSPITAL MEDICINE is so new that it was only recently recognized as a focused area of practice by the American Board of Medical Specialties (ABMS). The burgeoning need for Hospitalists and the lack of formal training programs means that there are very few Hospitalists who have formal fellowship training in Hospital Medicine and even fewer who hold formal certification. This statistic will improve as more universities open fellowship training programs, but in the meantime most Hospitalists enter practice directly from backgrounds of Internal Medicine, Family Medicine, or Pediatrics.

While numerous studies have confirmed the benefits of Hospital Medicine in terms of patient throughput and resource utilization, the Hospitalist-model of healthcare also exposes providers and their institutions to new and evolving areas of litigation risk:

1. Impaired Continuity of Care: By definition, Hospitalists care for the patients of other providers. By participating in the continuity of care between patients and their primary providers, there is an inherently heightened risk of error. For example, a Hospitalist may not be privy to a patient’s full medical history, outpatient test results, or recent medication changes. Since Hospitalists focus upon the details relevant to a patient’s acute hospitalization, there is also less time and incentive to delve into complexities. In addition, there is less of a doctor-patient bond since the Hospitalist’s interaction is tightly focused and limited to the immediate hospitalization. Each of these factors add risk to an already challenging dynamic.

2. Increasingly Complex Patients: The current demand to treat more patients in outpatient settings means that when a patient does get hospitalized, he or she is typically quite ill. This is particularly true in light of the fact that medical problems — from resistant infections to multiple organ transplants — are more complex than ever. Although Hospitalists do have the benefit of obtaining consults from other specialists, delays may ensue when a consultant is unavailable or when time is consumed while the Hospitalist evaluates the need for seeking consultation. Furthermore, as diseases and therapy become more complicated, it is nearly impossible to keep abreast of the latest treatments for every conceivable challenge that a Hospitalist may face. In some cases, this means that the Hospitalist will inevitably be a generalist serving in a specialist’s domain. There is no doubt that this adds to liability, but high-risk cases will always be an unavoidable part of the Hospitalist’s job.

3. Shiftwork and Transfer of Care: One of the allures of Hospital Medicine is the fact that it is performed in scheduled shifts. While shiftwork means that Hospitalists enjoy a more predictable schedule, it also means that the care of their patients is divided into shifts that are covered by different medical providers. Whenever patient care is “checked out” to another provider, there is always a risk that some relevant fact will get missed or delayed. This may occur as a natural result of human error, or it may happen when a new Hospitalist receives a quick check-out and views himself or herself as a placeholder until the first Hospitalist returns. Both situations may result in harm that is further complicated by issues of apportionment of liability.

4. Paucity of Defined Standards of Care. Given the novelty of Hospital Medicine as a separate specialty, there are relatively few resources for codified standards of care. Of course, Hospitalists must follow the generally accepted standards of Internal Medicine and/or Surgery, but the specific standards of day-to-day Hospital Medicine are less defined. In addition to hospital-specific policies, textbooks such as Wachter’s Hospital Medicine, and McKean’s Principles and Practice of Hospital Medicine, are excellent resources for admission guidelines, patient care, consultation, and hospital discharge.

5. Utilization of Mid-Level Providers: Like most physicians, Hospitalists are often overburdened. Reduced staffing hours, high patient censuses, and increased administrative demands all take valuable time away from direct patient care. Consequently, many Hospitalists now work with mid-level providers such as Physician Assistants to fulfill their clinical duties. While PA’s are a valuable and trusted resource in all medical fields, risk is inherently increased when patient care is divided amongst multiple providers.

While the use of Hospitalists will continue to grow, the focused and episodic nature of Hospital Medicine will always have an elevated level of medicolegal risk.

To learn more about Hospital Medicine and Hospitalist expert witnesses, you may view our Hospitalist Expert page.

To consult with an ELITE physician or nurse about your next Hospital Medicine case, please feel free to contact us at any time for a complimentary consultation.