Malpractice in pathology

[PathRes123]

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Ok, so I saw this presentation on malpractice in pathology that has got me a little worked up.

There were all these examples mentioned that were out of the pathologists immediate control but for which s/he was indirectly penalized. For example, shoddy grossing (and demonstrably inadequate gross description) by a rotating med student that was highlighted by the lawyer and taken by the jury to mean that the dept in general was incompetent, and similar. The cases of pathologist errors were also not slam dunk negligence, but very difficult cases where there can be difference of opinion.

So maybe being paranoid is the only way to practice pathology! Maybe the few pathologists I saw during training who were annoyingly OCD -tons of recuts, stains, hours looking at a case, etc- were those who had been through this experience before.

Can those of you already in practice share any tips / drills / systemic changes - besides the usual checking of labels, looking carefully, etc - you have found useful in minimizing the likelihood of a lawsuit.

Btw, came across this NEJM article: although pathology is listed in the bottom half of specialties in frequency of lawsuits, it has among the highest average payouts (only below pediatrics)!

http://www.nejm.org/doi/full/10.1056/NEJMsa1012370#t=articleDiscussion

 

[Enkidu]

There were all these examples mentioned that were out of the pathologists immediate control but for which s/he was indirectly penalized. For example, shoddy grossing (and demonstrably inadequate gross description) by a rotating med student that was highlighted by the lawyer and taken by the jury to mean that the dept in general was incompetent, and similar. The cases of pathologist errors were also not slam dunk negligence, but very difficult cases where there can be difference of opinion.

This actually makes a lot of sense to me. If the medical student was just grossing without being adequately trained, and it led to a misdiagnosis, then the department should ultimately be liable. The student can't be held liable, after all.

Btw, came across this NEJM article: although pathology is listed in the bottom half of specialties in frequency of lawsuits, it has among the highest average payouts (only below pediatrics)!

This is an interesting article. Actually pathology and pediatrics have the largest mean payouts but middle-of-the road medians. This means that there are significant outliers in those samples.

But this also makes a lot of sense. When people tell me that pathology doesn't really affect people's lives, I'm always quick to point out that a patient's diagnosis determines everything about their treatment. But in the case of a patient who was incompetently diagnosed with a cancer when they had none, this will trigger a lot of expensive surgeries and therapies that the pathologist will have to account for. Being important cuts both ways.

I find it interesting that pathologists are not sued very often, though. We're taught that having a good patient-physician relationship makes you less likely to be sued. But since pathologists don't have any patient-physician relationship, you'd think that they would be sued all the time (after all, why not?). The fact that this doesn't happen makes me think that on the whole, pathologists do a pretty good job.

 

[mlw03]

I found the NEJM article interesting too. I think the paranoia is partly a result of the large payouts that occur when pathologists get it wrong. I do understand things like immunos on breast lesions to look for myoepithelial cells, or other times when the differential is between a benign or malignant diagnosis. I don't understand getting 6 deepers on every melanocytic lesion to decide moderate from severe atypia, when it's such a subjective distinction anyway.

 

[KCShaw]

Paranoia and related unnecessary expenditures are one of the major financial problems with medicine as it is, IMO. Good standards outlining acceptable standard of care, and oversight groups with members who are not so far removed from clinical practice that they really have no idea anymore are also critical to an overall good system. This is where standard protocols for grossing, reporting, etc. come into play. Unfortunately the more one gets involved in the national organizations, academics, etc., sometimes the less one is involved in day to day clinical care; if one is not "doing the job" on a regular basis then one has to at least consider the validity of their conclusions about that job. There's a difference between minimum adequate standard of care with the available resources, and best practice. And there is such a thing as unfortunate but acceptable complications.

Where it gets really difficult is when addressing those matters of opinion -- at what point does something stop being a "difficult case" and starts being minimum acceptable standard of care? Unfortunately that's very, very difficult to address except on a case by case basis.

The way to practice in general is to be thorough but efficient, know your local protocols and any current/active national standards, document what you do or don't do as reasonably as possible, and keep up with the peer reviewed evidence related to your practice. And make sure (training, observation, etc.) the people working for you are also doing their jobs acceptably well. Then move on with life, acknowledging that not everyone is going to agree with you all of the time.

 

[PathRes123]

Got a few other insights from the presentation:

1. "consistent/ compatible with xyz" is the same as calling something "xyz" straight out.

2. A sub-specialty trained pathologist is held to a different standard than a non-specialist.

3. But, years of experience is not factored in- i.e. same expectation regardless of whether you are 4 months into practice or 40 years!

 

[GlassPusherJack]

but are lawsuit in pathology kinda skewed specialty-wise? like a forensic pathologist will probably never get sued while a skin or boob pathologist may get his/ her ***** handed to him/ her on a plate once per decade...

Got a few other insights from the presentation:

1. "consistent/ compatible with xyz" is the same as calling something "xyz" straight out.

2. A sub-specialty trained pathologist is held to a different standard than a non-specialist.

3. But, years of experience is not factored in- i.e. same expectation regardless of whether you are 4 months into practice or 40 years!

 

[HbyHA]

but are lawsuit in pathology kinda skewed specialty-wise? like a forensic pathologist will probably never get sued while a skin or boob pathologist may get his/ her ***** handed to him/ her on a plate once per decade...

forensic pathologists can still get sued. but you're usually suing a city or municipality so it's different. but FPs doing consult work carry malpractice insurance. I'm sure the rate of suits is lower than say, derm path, but it still can happen.

you can sue anybody for anything! Don't like my post? So sue me!

 

[pathstudent]

forensic pathologists can still get sued. but you're usually suing a city or municipality so it's different. but FPs doing consult work carry malpractice insurance. I'm sure the rate of suits is lower than say, derm path, but it still can happen.

you can sue anybody for anything! Don't like my post? So sue me!

But I assume that you can't be sued for malpractice as an fp as you can't practice medicine on the dead. I was told that even if you accidentally did an autopsy without family consent, you could not be charged for malpractice, but you could be charged with municipal laws against desecrating a corpse.

 

[KeratinPearls]

But I assume that you can't be sued for malpractice as an fp as you can't practice medicine on the dead. I was told that even if you accidentally did an autopsy without family consent, you could not be charged for malpractice, but you could be charged with municipal laws against desecrating a corpse.

You can pay a large amount of money for accidentally performing an autopsy without family consent...on the order of many hundreds of thousands of dollars, so residents check the ID bracelet to the name on the consent form.

 

[Entgegen]

As a med student, a pathology mentor of mine in PP told me about an autopsy he did a few years into practice. He was (and still is) in a state with tort reform with a $250,000 cap on "pain and suffering" awards to plaintiffs. I forget the exact circumstances under which the suit was brought, but the big thing was that the lawyers were stating that since the dead can't experience "pain and suffering", the cap wouldn't stand, and the lawyers were going after millions. The case went from court to court and nearly went to the state supreme court before it was finally thrown out. Again, I don't remember many details about the case, just the interesting bit about how that malpractice cap didn't hold up with an autopsy. The pathologist isn't an FP.

 

[KCShaw]

I am not a lawyer and offer no legal advice. The practice of FP is the practice of medicine. Except when allowed by local law (i.e., a non-medical coroner) filling out the medical portion (cause/manner) of a death certificate is also considered the practice of medicine. To my knowledge the autopsy procedure is considered a medical procedure, it just happens to be performed on a deceased person. But generally the issues people have are with the conclusions drawn, or the time spent, or the tissues retained, etc., as a result of an autopsy, some of which may be medical and possibly addressed by malpractice, but some may not, such as performing an autopsy without consent/jurisdiction. I suppose a court theoretically could allow someone who is no longer licensed to be qualified as an expert witness in a medical discipline, such as forensic pathology, and I believe consultants at times are not licensed in the states they testify in (though some states are addressing this, as Florida just did). I guess someone could say their testimony amounts to practicing medicine without a license, at least as far as that state is concerned. However, state medical boards may get involved if an FP is reported to them, though they may not have the medical expertise to know what to do about it; this is where it's sometimes useful to have another state body with either ME related oversight or at least expertise to assist in sorting out allegations. And certainly if a person's medical testimony is shown to be substantially in opposition to documented standards or evidenced based conclusions then that could be a malpractice issue, though apparently there are witness immunity laws complicating the matter.

An interesting question, anyway, and much better posed to a malpractice lawyer. FP's seem to more commonly get into trouble with lawyers, the public, and/or the media (not getting what they want/expect) than the law itself.

 

[lipomas]

Can those of you already in practice share any tips / drills / systemic changes - besides the usual checking of labels, looking carefully, etc - you have found useful in minimizing the likelihood of a lawsuit.
/QUOTE]

1) Always make sure your diagnosis compatible with the history. If the two don't make correlative sense, something might be wrong. Might not be, but often is. Like when you diagnose cancer in someone where every clinical study and test is suggesting infection. You might be right, but you better be damn sure. At the same time though, don't let clinical info sway you too much. Because you might be the one who is right.

2) Don't sign anything out that doesn't make sense if a simple phone call or investigation can answer a question.

3) Make sure you work with people you can trust and whose opinion you trust. This includes PAs, secretaries, other pathologists. You can't control the clinicians you work with, but you can work with them.

4) If you have doubts, show someone else the case.

5) If someone brings you a concern about a case, don't dismiss it out of hand. Like a cytotech who was surprised you called a case benign.

6) Don't make vast diagnoses on half-assed material. Not sure where I first heard that one but have heard it several times and it always rings true. Especially true for cytology or core biopsies for lymphoma.

 

[dermpathdoc]

This actually makes a lot of sense to me. If the medical student was just grossing without being adequately trained, and it led to a misdiagnosis, then the department should ultimately be liable. The student can't be held liable, after all.Quote]

Are you sure? many medical schools are having to take on extra malpractice insurance because medical students are being sued. along with attendings who are being sued for inadequate supervision of said students.

 

[dermpathdoc]

I found the NEJM article interesting too. I think the paranoia is partly a result of the large payouts that occur when pathologists get it wrong. I do understand things like immunos on breast lesions to look for myoepithelial cells, or other times when the differential is between a benign or malignant diagnosis. I don't understand getting 6 deepers on every melanocytic lesion to decide moderate from severe atypia, when it's such a subjective distinction anyway.

A. Bernard Ackerman once told me you did as many levels as necessary to make your diagnosis of a melanoma or a benign lesion, but if you needed 6 levels to do that you didn't trust your own instincts and the person who sectioned thru the block was a fool.

 

[mlw03]

that just put a smile on my face. i can't remember if the dermpath person i sat with the most was an ackerman disciple or not, but probably more than any diagnostic info, i most remember her ever-present fear of lawsuits and her agonizing for 15+ minutes on every melanocytic lesion to decide where on the spectrum it went. whether this was a product of the system, or just her style, i don't know. but it obviously adds to the cost of healthcare, and probably not commesurate with the level of care it provides.

A. Bernard Ackerman once told me you did as many levels as necessary to make your diagnosis of a melanoma or a benign lesion, but if you needed 6 levels to do that you didn't trust your own instincts and the person who sectioned thru the block was a fool.

 

[Enkidu]

Are you sure? many medical schools are having to take on extra malpractice insurance because medical students are being sued. along with attendings who are being sued for inadequate supervision of said students.

Well, medical students can't be liable for malpractice. Malpractice is when a physician performs below the minimum acceptable level. All medical students are like that all the time, by definition, and medical students aren't actually physicians anyway.

Maybe the students could be sued for negligence or something, but ultimately the attending and hospital are liable for what the student does wrong.

 

[PathRes123]

Thanks lipomas. Even if commonsensical, good to have it reinforced.

Would be nice to hear other people's opinions/ anecdotes/ experiences also.

Can those of you already in practice share any tips / drills / systemic changes - besides the usual checking of labels, looking carefully, etc - you have found useful in minimizing the likelihood of a lawsuit.
/QUOTE]

1) Always make sure your diagnosis compatible with the history. If the two don't make correlative sense, something might be wrong. Might not be, but often is. Like when you diagnose cancer in someone where every clinical study and test is suggesting infection. You might be right, but you better be damn sure. At the same time though, don't let clinical info sway you too much. Because you might be the one who is right.

2) Don't sign anything out that doesn't make sense if a simple phone call or investigation can answer a question.

3) Make sure you work with people you can trust and whose opinion you trust. This includes PAs, secretaries, other pathologists. You can't control the clinicians you work with, but you can work with them.

4) If you have doubts, show someone else the case.

5) If someone brings you a concern about a case, don't dismiss it out of hand. Like a cytotech who was surprised you called a case benign.

6) Don't make vast diagnoses on half-assed material. Not sure where I first heard that one but have heard it several times and it always rings true. Especially true for cytology or core biopsies for lymphoma.

 

[yaah]

I would second many of those points - never sign out a case you aren't sure about or where the clinical findings/history doesn't make sense. Clinicians almost never will be irritated by you calling them for more information or to discuss a case, in fact they will usually be happy.

Also - don't let clinicians (or other pathologists) push you into calling something that you aren't comfortable with. If the FNA isn't cancer, don't call it cancer! While repeating procedures is not pleasant for the patient, it's much more unpleasant to get a mistaken diagnosis.

 

[twentyone]

Don't sign out a difficult case (just to get it off your desk) at five o'clock on Friday. Ever. Also not when you're tired, bored, have to go to the bathroom, hungry, or when the daycare is about to close.

 

[pathstudent]

Don't be scared to show any case. Our malpractice insurance guy gave a talk and said that if two people sign on a case it is almost impossible to prove malpractice, even if you sign something out benign that is malignant. In his words, "they can prove you're both stupid, but if you thought enough to show the case, then it is near impossible to prove you negligent".

What I never got is people always show new cancer diagnoses to someone else as protocol. Those usually are the easy ones. It is the ones that you think are benign or you didn't think of something else in the differenital that you should show. The only problem is is that you don't that you should have shown it, so you don't. Those are the timebombs in the files.

 

[mlw03]

I think your point about showing new cancer diagnoses is a good one, but it's not practical to show every benign diagnosis. I think it's the in-betweeners that are toughest (Barrett with dysplasia - high or low grade?), and for the majority of these two of cases I saw the faculty at my program showing the cases around. They'd then usually add a comment saying: Dr. X has reviewed selected slides and concurs with the given diagnoses.

 

[KCShaw]

Be careful in your showing things around and documenting it, too. It has been known to happen that 1 person showed something to another person, noted having shown it intradepartmentally to that person, and signed it out as say non-malignant; patient turns up about a year later with mets everywhere and on review of the original case was felt to pretty obviously be malignant. The consulted person then promptly tries to throw the person who signed it out under the bus by claiming to have only been shown one non-representative slide with a question about a possible incidentaloma separate and apart from the main issue. How they remember that case and the slides they did and didn't look at after that much time passed I don't know.

Point being, it's easy sometimes to show a single slide around because you think that's the only issue. Many people I worked with, however, would hand over the entire case when asking for a second opinion, and for convenience simply point out the slide/mark that they considered the area of interest -- it was then up to the person consulted to decide what they chose to look at. Worth taking into consideration especially when "casually" showing things around and whether/how you subsequently document it.

Which also comes back to knowing and trusting the judgment of the people you work with.

 

[PathRes123]

Thanks eveybody- all very good points!

Be careful in your showing things around and documenting it, too. It has been known to happen that 1 person showed something to another person, noted having shown it intradepartmentally to that person, and signed it out as say non-malignant; patient turns up about a year later with mets everywhere and on review of the original case was felt to pretty obviously be malignant. The consulted person then promptly tries to throw the person who signed it out under the bus by claiming to have only been shown one non-representative slide with a question about a possible incidentaloma separate and apart from the main issue.

Curious - what is the legal culpability of the 2nd pathologist who is shown a case and noted so in the report (let's assume he was shown the entire case)? Is it exactly the same as the signout pathologist, or to a lesser degree?

 

[KCShaw]

Legally.. I really don't know, and wouldn't suggest taking the advice of an internet forum regarding something that significant. I tend to think it would have to be pretty egregious &/or some departmental policies not have been followed -- but I suspect it depends on what they're being sued for or charged with (malpractice, negligence, criminal, etc.). If we're just talking about diagnostic opinion I don't see how a consulting pathologist is any different to the primary pathologist; again though, it may depend on who documents what, as an outside consultant typically generates their own report while a hallway consultant may not generate anything of their own (i.e., may never even truly co-sign, just be listed by the primary...who may, intentionally or not, inaccurately portray the consultant's involvement or opinion).

Assuming the whole case was shown and they really agreed, and they still agree in retrospect (i.e., nobody tries to point fingers and alter or minimize their involvement), and say so in court.. Well, while the hammer might technically fall on the only one of them who signed the report I'm sure both would be named in a suit, but if they stand fast and have a remotely reasonable opinion it seems difficult to me to show liability as you have 2 "experts" agreeing -- again, it would have to be pretty egregious or head into the unlikely criminal conspiracy type scenarios to go really bad, though that doesn't mean a civil jury would agree. Dunno. I suspect there are some publicized cases out there addressing this.

 

[BU Pathology]

The peer reviewed literature is almost always a better source of information than anonymous internet forums.

Jena et al published on this issue in NEJM, PMID 21848463. Pathology is on the lower end of specialties that will be sued (Figure 1), but is the second highest in terms of payments to plaintiffs (Figure 3).

Daniel Remick, M.D.
Chair and Professor of Pathology and Laboratory Medicine
Boston University School of Medicine and Boston Medical Center

 

[Pathwrath]

The peer reviewed literature is almost always a better source of information than anonymous internet forums.

Jena et al published on this issue in NEJM, PMID 21848463. Pathology is on the lower end of specialties that will be sued (Figure 1), but is the second highest in terms of payments to plaintiffs (Figure 3).

Daniel Remick, M.D.
Chair and Professor of Pathology and Laboratory Medicine
Boston University School of Medicine and Boston Medical Center

Did you read the original posts on this thread?

 

[BU Pathology]

Did you read the original posts on this thread?

I did, but not apparently not well enough. Yes, it is the very same article.

 

[Nilf]

Don't sign out a difficult case (just to get it off your desk) at five o'clock on Friday. Ever. Also not when you're tired, bored, have to go to the bathroom, hungry, or when the daycare is about to close.

Hahaha, that is sooooo true!

a few more points, mostly from dermpath perspective:

1. No matter what slide you are looking at, always look for phucking melanoma.

2. Never trust a clinician.

3. Make sure the slide numbers match with the paperwork

4. Make sure the number of skin pieces on the slides match with gross description.

5. Make sure you examine epidermis from every block.

6. Don't be a hero.

7. ALWAYS look for phucking melanoma.

 

[yaah]

Be careful in your showing things around and documenting it, too. It has been known to happen that 1 person showed something to another person, noted having shown it intradepartmentally to that person, and signed it out as say non-malignant; patient turns up about a year later with mets everywhere and on review of the original case was felt to pretty obviously be malignant. The consulted person then promptly tries to throw the person who signed it out under the bus by claiming to have only been shown one non-representative slide with a question about a possible incidentaloma separate and apart from the main issue. How they remember that case and the slides they did and didn't look at after that much time passed I don't know.

Point being, it's easy sometimes to show a single slide around because you think that's the only issue. Many people I worked with, however, would hand over the entire case when asking for a second opinion, and for convenience simply point out the slide/mark that they considered the area of interest -- it was then up to the person consulted to decide what they chose to look at. Worth taking into consideration especially when "casually" showing things around and whether/how you subsequently document it.

Which also comes back to knowing and trusting the judgment of the people you work with.

There was a case in my group before I arrived where the patient sued a clinician for delay in diagnosis (some kind of liver or kidney or lung biopsy on a friday afternoon of a long weekend). Case wasn't finished but the clinician was called on friday with the results. Clinician promptly sued the pathologist(s) for not informing him. But the pathologist had saved the consult sheet where someone had written that they spoke with the clinician at 3:50 PM and informed him of results and need for treatment. Suit against the path was quickly dropped.

 

[longlakeboy]

I find it interesting that pathologists are not sued very often, though. We're taught that having a good patient-physician relationship makes you less likely to be sued. But since pathologists don't have any patient-physician relationship, you'd think that they would be sued all the time (after all, why not?). The fact that this doesn't happen makes me think that on the whole, pathologists do a pretty good job.

Studies that have looked at what clinicians are most likely to be sued in the future have shown that past unsolicited patient complaints top the list. In general, if there's a bad outcome AND you don't like your doctor, you're much more likely to sue than if you have a bad outcome but you like him or feel indifferent toward him...

Pathologists have little chance of pissing off a patient with their behavior, eliminating a big risk for being sued...

 

[Enkidu]

Studies that have looked at what clinicians are most likely to be sued in the future have shown that past unsolicited patient complaints top the list. In general, if there's a bad outcome AND you don't like your doctor, you're much more likely to sue than if you have a bad outcome but you like him or feel indifferent toward him...

Pathologists have little chance of pissing off a patient with their behavior, eliminating a big risk for being sued...

Interesting, but patients are all indifferent to their pathologist, but they may love or hate their clinician. Shouldn't that be a wash?

Apparently being loved by your patients does not provude a benefit over merely being not hated. Seems like a grim commentary on patient behavior.

 

[lipomas]

Studies that have looked at what clinicians are most likely to be sued in the future have shown that past unsolicited patient complaints top the list. In general, if there's a bad outcome AND you don't like your doctor, you're much more likely to sue than if you have a bad outcome but you like him or feel indifferent toward him...

Pathologists have little chance of pissing off a patient with their behavior, eliminating a big risk for being sued...

Yes, but if the clinicians don't like you, the patients are likely going to get less of a stellar impression of you and your diagnostic skills. So it isn't that unrelated. And if you have a poor relationship with clinicians it increases the chances that mistakes are made, in communication or whatever.

 

[wp746911]

well I think all in all we aren't too bad on the risk category.

In my group we do show around alot of borderline cases, and we document that, but we DO NOT say who exactly that was (unless it is a formal mayo consult or something, then obviously we put their name all over it).

There isn't a single list of rules to avoid malpractice, and even if you are 100% perfect you can still get sued, and lose.

In general I am very meticulous about my signout, but I don't think I'm overly cautious. I match slides to paperwork, look up hx, call clinicians, etc. My rule of thumb is that I have to be 'at peace' with EVERY diagnosis. If it doesnt match the clinical, if I'm pushing myself too hard, if the IHC is unexplainably 'funny', etc etc, I show it around more and have even got a full formal consult for 'funny' lesions (which have saved my @ss at least once). When I leave my office I leave knowing I gave 100% and did a great high quality job for the patients. I sleep well at night. If 5 years down the road I lost some big lawsuit, so be it.

 

[KCShaw]

Being 'at peace' about how you handled a case/the diagnosis and that diagnostic opinion being reasonable and defensible probably go hand in hand. As people have been mentioning in another thread, of course, you need to know your limitations so you aren't blindly signing things out without realizing how behind the standard of care you may be.

 

[dermpathdoc]

Well, medical students can't be liable for malpractice. Malpractice is when a physician performs below the minimum acceptable level. All medical students are like that all the time, by definition, and medical students aren't actually physicians anyway.

Maybe the students could be sued for negligence or something, but ultimately the attending and hospital are liable for what the student does wrong.

It is not the students being sued but the program allwoing the student to rotate there and the medical school for not properly training the student. students used ot be able to rotate anywhere they wanted..nowadays the programs they rotate at demand the school have malpractice insurance on their students and the schools the program have their own insurance.

 

[pathstudent]

Malpractice is when a physician performs below the minimum acceptable level. .

Actually it is not so simple. Medical malpractice means you had a duty to the patient AND that you performed below the standard of care AND that your negligence caused an injury to the patient AND that the injrury resulted in damages to the patient.

You can perform below the standard of care but if your patient is not injured or if the patient does not receive damages due to it, it is not malpractice.

With the many specimens I have seen ruined by first year residents grossing, I have often wondered if that could end up being malpractice if vital information is lost.

 

[KCShaw]

Possibly, I would think, on the part of their medical supervisors.

 

[pathstudent]

Possibly, I would think, on the part of their medical supervisors.

Yes but fortunately by the time the "problem" arose the specimen would be in the landfill so there is no evidence left, but I have often that that having these first years grossing late at night and on the weekends on their own with immense pressure to get the work done is an obvious weak spot and potentially an area for patient harm.