November 2000
Volume 64 |
Number 11
|
| |
VENTILATIONS
|
| Aphorism
Redux |
|
|
Mark J. Lema, M.D., Ph.D. Editor
|
|
We all know that medicine is part science, part business, part
intuition and part experience. On occasion, the experience of
others, usually specialists, is sought in the form of a consultation.
The specialist interviews and examines the patient, makes diagnoses,
recommends therapy and submits a bill. This interaction forms
the doctor/patient contract, or “relationship, as we call it.
The world community of physicians has also engaged in a time-honored
practice of obtaining "corridor consultations." These
interchanges of ideas often expedite the medical care by removing
the formal contract relationship between the specialist and patient.
These interactions often occur in the cafeteria, over the telephone,
in the locker room or in the specialist's area of practice such
as a clinic or radiology suite. The inquiring physician is looking
for a few quick differential diagnoses or diagnostic studies before
or instead of formally requesting the specialist's services. A
quick view of the X-ray or lab values, a fast reading of the ECG
strip, an abridged rendition of signs and symptoms, and the specialist
in oracle fashion reveals the likely diagnoses and suggested treatment
before invoking his or her presence. It works well for medicine,
but now it is about to change.
Recently, two court cases, one in Arizona and the other in New
York, have ruled that establishing a formal doctor/patient contract
is not a necessary requisite in holding a doctor medically
liable for a patient's care. Both cases involved emergency room
physicians and cardiologists. In the Arizona case (Diggs v.
Arizona Cardiologists Ltd, Ariz. Ct. App. No. 1 CA-CV 99-0508,
8/8/00), Mrs. Diggs went to the E.R. complaining of severe chest
pain, and the ECG showed heart block. The E.R. doctor, believing
that she had pericarditis, informally asked the chief of cardiology,
who happened to be in the E.R., to look at the ECG strip. The
cardiologist concurred with the E.R. physician's diagnosis and
recommended anti-inflammatory agents. Three hours after E.R. discharge,
Mrs. Diggs died of a heart attack.
The appeals judges rejected the notion of a "corridor consultation"
and ruled that a contractual relationship (i.e., a doctor actually
seeing and examining the patient) is not always required
for a duty to be created. They stated that the cardiologist voluntarily
undertook to provide his expertise to the E.R. physician knowing
that it was necessary for the protection (medical well-being)
of Mrs. Diggs and that the E.R. physician would rely on it. The
fact that the cardiologist stated that he would have obtained
serum enzymes to rule out a myocardial infarction if personally
caring for the patient was not persuasive. The judges stated that
the ER physician, by relying on the cardiologist's confirmation
of the provisional diagnosis of pericarditis, subordinated the
E.R. physician's judgment to that of the specialist in cardiology.
Finally, the cardiologist argued that holding him liable would
discourage informal communication among physicians. The judges
rejected this point and said:
"We are not dealing with the informal exchange of medical
information between two physicians, one of whom merely serves
as a resource such as a treatise or a textbook. In that case,
where the treating physician exercises independent judgement
in determining whether to accept or reject such advice, few
policy considerations favor imposing a duty on the advising
physician."
The fact that the E.R. physician relied on the cardiologist's
expert opinion to discharge the patient made that specialist culpable.
The New York case is somewhat more problematic (Campbell v.
Haber, Sup. Ct. App. Div. 4th dept. N.Y. Slip Op. 06766, 7/7/00).
An E.R. physician examined Mr. Campbell and ordered cardiac enzyme
serum levels. When the results suggested some heart muscle damage,
the E.R. physician called the cardiologist, woke him at his home
and related the clinical signs, symptoms and lab results. The
cardiologist said that the test results were not consistent with
a cardiac event. The E.R. physician informed the patient and his
wife that he consulted a cardiologist who doubted that cardiac
disease was present and discharged the patient. Mr. Campbell subsequently
suffered a heart attack and survived.
The distinction between this case and the previous one resides
in the E.R. physician calling the cardiologist at home. Most importantly,
the cardiologist was not on call for emergency services and his
group had no formal contractual arrangement to cover emergencies
at the hospital. The cardiologist was never formally consulted,
never saw the patient and never reviewed Mr. Campbell's chart.
The court upheld the plaintiff's suit with one judge dissenting.
The court felt that the telephone conversation constituted an
implied physician/patient relationship by virtue of the fact that
the cardiologist offered advice through another professional.
Both medicine and society have a big problem, once again brought
about by attorneys disguised as appellate judges. A professional
is distinguished from an employee by virtue of always being an
expert in a respective field and not "punching a clock"
to be off duty. As doctors, we are imposed upon by colleagues,
friends, business associates and patients’ family members when
they ask our advice about medical problems at cocktail parties,
over dinner, in the supermarket, outside of church or via telephone,
fax and e-mail. These cases now set a very bad precedent that
threatens both our traditional exchange of postgraduate medical
knowledge and our willingness to help others outside of normal
"business hours." The inquiring physician should know
that the rendered information is free and should be scrutinized
by that physician seeking this information. The responsible physician
must synthesize this advice with his or her existing medical knowledge
on the topic and the clinical picture (intuition). In the absence
of a formal consultation, the E.R. physician in my opinion is
using the specialist in lieu of or in addition to consulting the
Washington Manual or a textbook of medicine. The expert's advice
is always incomplete and generalized because the expert has not
engaged in the art and intuition of medical practice " seeing,
talking and touching the patient " but simply offers the
current body of scientific knowledge.
Osler offered two maxims which are still applicable to medical
care 100 years later:
Let me take the history.
Let the medical student perform the physical exam,
Throw the lab results away,
And I'll give you the diagnosis.
He clearly believed that the patient will tell the examining
physician everything he/she needs to know to make the diagnosis
and that exams or lab results simply confirm it. His second maxim
is even more salient:
"To study the phenomena of disease without books is to
sail on uncharted sea, while to study books without [seeing]
patients is not to go to sea at all."
In this maxim, Osler obviously believes that practicing medicine
requires contact with the patient, supplemented by education.
How any rational physician or legal ethicist (judge) finds a
specialist culpable for a patient’s well-being by giving advice
in the absence of seeing, talking to or touching the patient defies
all logic. To practice medicine is to be in contact with patients
or to verbally forego this obligation because the situation is
medically obvious (e.g., an open compound fracture of the femur).
I could not imagine relying on a specialist who was informally
consulted for my decision to discharge or treat a patient. If
I were in doubt, I would insist that the patient be formally interviewed
and examined. When in doubt, I would decide in favor of the patient.
If precedents such as these two decisions become widespread, the
lawyers (judges) will have succeeded in driving another few thousand
physicians into early retirement while also driving up the cost
of health care with unneeded formal consultations.
While these cases display a failure of the medical system to
adequately care for two patients, the fault lies in the E.R. physicians’
violation of fundamental principles of medical practice. Making
the specialist culpable for medical care when he or she may be
miles away and not even on call is flawed logic rendered by prestigious
and influential members of society (judges) and should be further
appealed.
Finally, here is a bit of advice. Have your spouse or children
intercept all telephone calls and tell anyone asking for you that
you are not at home. Ignore all unknown pages if you are out of
the hospital and not on call. If anyone asks your professional
opinion and you cannot simply turn and walk away, begin your sentence
with "In general" and end with ".I would really
need to see, talk to and touch the patient before I can render
a professional opinion (diagnosis)." Should a judge or attorney
ever ask your opinion at a cocktail party, simply state: "Based
on Diggs v. Arizona Cardiologists Ltd. and Campbell
v. Haber, I cannot render an opinion (diagnosis) on the grounds
that it may make me medically culpable should a negative outcome
occur. Please make an appointment to see me (in the next three
to six months). I charge $250 ($500, or whatever) per hour of
contact time." Then turn away and order another martini.
– MJL
return to top |