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Malpractice in Pathology
Gregory G. Davis, M.D.
Jefferson County Coroner/Medical Examiner Office
Department of Pathology, University of Alabama at Birmingham
Medicine and Law – Similarities
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Require advanced training
Divided into two great camps
General practitioners and specialists
Some cases easy, others difficult
Good and bad practitioners in each field
Each practiced in a specialized setting
Medicine and Law – Differences
Medicine
Law
• Common enemy –
• May prosecute or
disease
defend
• Scientific discipline
• Tend to dislike science
• More comfortable
• Careful to remember
with disease than with
people and faces; tend
patient
to be formal and polite
Purpose of court = Establish truth
Purpose of court = Resolve Dispute
Theory of American Legal System
• Due process – accused has right to be told
of accusation and to be heard speedily
concerning accusation
• Resolution of disputes accomplished in
America by adversarial trial system.
Theory of American Legal System
Adversarial trial system
• sides in dispute present evidence publicly
• evidence presented in presence of accused
• evidence subject to challenge
Method of American Legal System
Players in court
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Judge
Attorneys
Witnesses
Jury
Ancillary players
Method of American Legal System
Jury – hears evidence and decides verdict
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Your peers as human beings and as citizens
Chosen at beginning of trial
Attorneys for both sides have input in selection
Jury must have a leader
Members dislike having their time wasted
Method of American Legal System
Judge – sole authority in court room
– Sets tone of court room
– Settles any dispute between attorneys
– The one to whom jury looks for guidance
Method of American Legal System
Attorneys
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The “champion” of each side in the dispute
Often know each other
Enjoy their work
Must abide by their client’s wishes
Method of American Legal System
Witnesses
– Called (by subpoena) to tell what they
witnessed pertinent to trial
– Sworn in
– Will be questioned (examined) by attorney
from each side in turn
– Can cause a mistrial by talking too much
Method of American Legal System
• Fact witness
– Saw, heard, or otherwise directly involved in
matter that is subject of trial
• Expert witness
– Has special training or experience not common
to all individuals that can clarify issues which
are not obvious to the jury and judge
– Opinion of an expert witness has legal worth
Method of American Legal System
Ancillary players in court
– Bailiff
– Court reporter
– Any one who witnesses a public trial
Method of American Legal System
Civil disputes
• One party seeks recompense for harm he
believes other party caused him.
• Plaintiff = party initiating civil lawsuit
• Defendant = party accused
• Plaintiff bears burden of proof
– “preponderance of evidence”
Method of American Legal System
Criminal disputes
• “People of the state” initiate lawsuit.
• Defendant = party accused
• “People” bear burden of proof
– evidence must make clear “beyond reasonable
doubt” that defendant committed crime.
Impact of Law on Pathology Practice
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Pathologist as physician
Anatomical pathology
Clinical pathology
Laboratory Director
Pathologist as physician
• Legal obligation to possess learning and skill
similar to other physicians in specialty
• Accepting patient carries duty of reasonable care
and diligence in applying skills to task
• Must use best judgment, continue to learn, and
adhere to practice approved by others
• No guarantee of good outcome, and not liable for
mere error in judgment carefully made
Surgical specimens
• Traumatic spleen
• Bullets
– Do not use forceps to examine.
Fired bullet
• Land & Groove engravings
Firearm & Toolmark Examination
Comparison Microscopy
Surgical specimens
• Bullets
– May be sought as evidence in court
– To be admitted as evidence bullet must have
chain of custody (evidence), a written record
of where bullet has been since the shooting.
Surgical specimens
Chain of custody
• Bullet must be properly identified.
• Bullet must be stored so tampering unlikely.
• Bullet must be stored so tampering would
be evident.
• Must maintain record of what is done with
bullet, and by whom, each time bullet
changes hands.
Surgical specimens
• Old bullets may be discarded periodically.
• Store a year’s worth of bullets within a box
in drawer.
• Should not need to keep bullets beyond
three years (requires four boxes).
Autopsies
• Require continuing education of clinical
staff
• Confirmation of identity of decedent
Autopsies
• Always save specimen for toxicological
analysis.
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Blood (antemortem, central and peripheral)
Urine
Bile
Gastric contents
Liver
Brain
Autopsies
• Drug abuse occurs in hospitals
• False positives on screening tests
• Decomposition
Specimen retention
• Routine
• At request of attorney
• Alder-Hey incident
Clinical Pathology
• Toxicology testing and chain of custody on
patient samples
• Transfusion medicine
• Paternity testing
Notifying clinicians of results
• Document notification of critical values
– In patient’s chart
– On laboratory log sheet
• Mistakes
– Confess error immediately
– NEVER change the chart or try to hide the truth
– Meet with clinician and, if necessary, with clinician and
patient
– Statute of limitations
Duties of Laboratory Director
• As leader of laboratory team
• Disciplinary action
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Listen to every side of story
Documentation
Due process (check hospital policy)
Decision is yours as Director
• Dismissal
Consultation
• Curbside – still encouraged by courts, but
must proceed with caution
• Of you by clinical staff on a partner’s case
• Of you by partner in a difficult case
• Obtained by you of an outside consultant
• Obtained of you as an outside consultant
Malpractice suits
• Four legal pillars of malpractice
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Duty
Dereliction
Damage
Cause
Malpractice suits
• Why do patients sue?
– Money
– Misdiagnosis
– Mistreatment
• Suit more likely with heightened emotion
– Obstetrics
– Neurosurgery
– Hospitalization
Malpractice suits
Notification of suit brings on crisis of
conscience.
– Was my diagnosis correct?
– Did I miss something?
– How can they do this to me?
Malpractice suits
• Attorneys usually paid on contingency.
• Attorneys check to see whether a potential
case has merit before they sue.
Malpractice suits
• A summons is the legal document that
notifies an individual he has been named as
a defendant in a law suit.
• Upon receiving a summons you should do
five things.
Malpractice suits
1. Keep your mouth shut.
Malpractice suits
2. Call hospital risk management department
(if they cover your malpractice insurance)
or your malpractice insurance carrier and
tell them you have just received a summons.
Malpractice suits
3. Keep your mouth shut.
Malpractice suits
4. Work with the attorney representing the
hospital or insurance company.
Malpractice suits
Signs that you may need another attorney to
represent you in a malpractice case
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Damages sought exceed your coverage
Insurer disclaims liability
Attorney will not meet with you
Attorney more concerned with interests of
insurance company than with your interests
– The two of you just do not get along
Malpractice suits
If no attorney has your interests in mind, you
may wish to hire your own attorney.
– Hire a seasoned professional in medical law
with a proven record of success in representing
his clients.
– Local medical society can recommend such
attorneys.
Malpractice suits
5. Keep your mouth shut.
Danger in talking with patient, patient’s
attorney, family, friends, staff, colleagues,
partners, media, co-defendants.
Malpractice suits
Decide with attorney whether your side needs
an expert medical witness.
Malpractice suits
Expert witness should be
• Fully qualified,
• Able and willing to devote time necessary
to prepare for trial,
• Current on literature in his field,
• Impressive.
Malpractice suits
Make certain that your expert witness will be
paid a reasonable fee for his time.
Malpractice suits
• May be dismissed.
• May be settled out of court.
• May be tried in court.
Malpractice suits
• Counter-suit against patient and attorney
• Indefensible positions
– Lack of record (or microscope slide)
– Changing record
– Leaving out information that does not support
diagnosis
– Rudeness or jokes at patient’s expense
The Impaired Physician
• Difficult to confront
• State programs for Physician Wellness (list
at www.fsphp.org)
• Some programs allow anonymous calls
• Physician in question evaluated
professionally
• High success rate (~95%)
The Impaired Physician
• Professional Misconduct
– Liable as a physician for misconduct which you
know of in another physician, regardless of
your professional relationship
– Resources available in reporting misconduct
• Physician Wellness Program
• Hospital Bylaws for peer review and due process
– Keep your mouth shut when gossip starts
Natural History of a Legal Suit
Preliminary stages
• Must meet with attorney representing you to
review case and prepare for trial
• Assume role of teacher
– Attorney needs to learn facts favorable to case.
– Attorney needs to learn facts unfavorable to case.
• Assume role of student
– Attorney can teach you about this case
Natural History of a Legal Suit
Preliminary stages
• Never speak in jest about medical matters
attorney may not understand.
• Conduct yourself as though everything you
say will be repeated publicly in a courtroom
crowded with reporters whenever you talk
to an attorney.
Natural History of a Legal Suit
Preliminary stages
• Essential to review medical record just
before trial (and expert witnesses review
their own report).
Natural History of a Legal Suit
Trial
• Jury selection
• Opening statements by each side’s attorney
• Presentation of evidence
• Closing statements by each side’s attorney
• Jury deliberation and verdict
• Sentencing
Natural History of a Legal Suit
Trial
• Seldom begins on date on first subpoena.
• Your portion as a witness will not begin at
9:00 AM on Monday as subpoena says.
– Call office of attorney to schedule approximate
date and time when you will testify.
– Expect to spend a half day in court.
Natural History of a Legal Suit
Trial
• Know how to get to court.
• Know how to get to courtroom.
• Know where restroom is.
Natural History of a Legal Suit
Trial
• Trial begins when jury first sees you.
– Look professional, neat, clean, conservative.
– Jury should remember you, not what clothes
you wore.
– Bow ties
• Rapport you develop with jury critical to
outcome of trial.
Natural History of a Legal Suit
Verdict
• Be professional and calm regardless of
verdict.
– “Guilty” is not a death sentence
– “Not guilty” is not cause for undue celebration
Natural History of a Legal Suit
Mistrial
• Frustrating
• Requires another trial unless settlement
reached
– Consider counsel of attorney before settling