August 2007 | Back to Table of Contents

Medicine, Law and Policy

Jousting—Lighting the Malpractice Fuse

When one provider criticizes another, both are at increased risk for a malpractice claim.

By Cinda J. Velasco, J.D.

Most physicians never think of openly disparaging the care rendered to a patient by another physician. Unfortunately, malpractice claims tell a very different story about the actions of far too many physicians and nurses.

Consider this actual case: A 45‑year‑old man appeared in the emergency department complaining of a popcorn hull lodged in his throat. He was coughing and having difficulty breathing. Shortly after arriving, he suffered respiratory arrest.

Dr. A., the patient’s family physician, Dr. B., the hospital staff physician, and a resident all assisted in intubating and resuscitating the man. Despite the physicians’ care, the patient’s condition continued to deteriorate. When the doctors questioned the placement of the endotracheal tube, Dr. B. attempted to re-intubate the man.

Meanwhile, Dr. A. was arranging for the patient to be transferred to another hospital 30 miles away. The three physicians discussed the need for a potentially life‑saving cricothyrotomy; but none of them felt competent to perform the procedure, and each had a different opinion about the quickest way to get it done. Dr. A. insisted on transferring the patient, who died en route to the other hospital. The patient’s family sued all three physicians.

Following the patient’s death, the physicians continued to disagree about what should have been done for the patient. Each dictated a discharge summary describing three very different versions of the night’s events. Dr. A. described the patient as being stable prior to discharge from the emergency department. Dr. B. reported that the patient was too unstable to transfer and questioned Dr. A.’s decision to move him. The resident dictated her own note, agreeing with Dr. B. but also criticizing him for failing to perform the cricothyrotomy, which could have “saved the man’s life.”

The plaintiff’s attorney characterized the care provided as “shoddy, reckless, and egregious.” Although defense experts supported the medical treatment given to the man as being within the standard of care and completely defensible, the hostility and bashing among the physicians—permanently memorialized in the patient’s medical record—destroyed any possibility of defending the claim before a jury.

The Cost of Criticism
The behavior of the physicians in this case illustrates what has come to be known as jousting. Jousting is the unfortunate practice of one health professional making critical comments about another provider’s care, directly or indirectly, either to the patient or in the medical record. For example, a frustrated nurse might write in the chart, “Dr. White was paged repeatedly and ignored us per usual.” One doctor might say to a patient who had a previous surgery, “This is quite a scar! Who did this to you?” Or a doctor might note in the chart, “As usual, no nurses available to help.”

When one provider criticizes another, both are at increased risk for a malpractice claim. When a patient hears a physician criticize another physician or health care provider, the patient may suddenly feel that the care he or she received was inappropriate. This feeling—fueled by the physician’s spoken criticism or even nonverbal hints—may send the patient to an attorney to find out if there was any negligence.

The reality is that often the physician who is being critical simply does not have all of the facts and makes a quick judgment that is not correct. In addition, patients typically do not have or remember all of the details of their prior treatment, and jousting providers have seldom reviewed the relevant medical records before making their criticism.

After jumping to a conclusion and criticizing a fellow practitioner, a physician may find himself having to explain his comments to an understandably angry colleague, an upset patient, or worse, a plaintiff attorney under oath at a deposition. In some cases, the physician who made the critical remark may risk being sued as well.

Jousting in the Medical Record
Jousting is not always done in person. Criticism recorded in a patient’s medical record can be just as damaging as the spoken word and often comes to light when the patient requests a copy of his or her chart. This is often more than simply embarrassing to the providers—it may also lead to a malpractice claim that is difficult to defend. To a jury, unprofessional charting implies unprofessional treatment.

Tips to Help You Avoid Jousting (and Potential Malpractice Claims) Gather all of the medical facts before drawing any conclusions. Patients often distort or misstate information when recalling events or test results. Avoid insinuating that a patient’s current condition is harder to manage because of another physician’s treatment decisions. Be aware of your body language when seeing a patient for a second opinion. Frowning, sighing, rolling your eyes, or shaking your head are signals the patient may interpret as critical or negative. When interviewing a patient, try to stay neutral. Ask questions such as Can you tell me more? or Did Dr. J. tell you why he decided to start you on this medication? If the patient cannot answer your questions, let him or her know that you’ll need to contact the treating physician to get more information. Document objectively and without criticizing other providers. Ensure that your charting adequately reflects the care and treatment you are providing. If you wonder whether a comment you make might be misconstrued, put yourself into the other provider’s shoes and imagine he or she had made the comment to one of your patients.

One entry, taken from a medical record in a malpractice case, read as follows: “Although I strongly disagreed with Dr. B.’s proposed surgery, he convinced the patient to proceed. Her many post-op complications and finally her death have proved my advice correct.”

No doubt, the physician felt quite righteous after making this entry. However, this type of comment by a physician plays into the hands of a plaintiff’s attorney because it directly calls his colleague’s behavior into question. Even if the physician’s actions were appropriate and met the standard of care, such a comment makes it difficult to defend the care the patient received. Cases in which the care is otherwise defensible may become much more difficult to defend because of the physicians’ venting their frustrations in the medical record.

Not Always Intentional
Jousting is not always deliberate. Offhand comments to patients may be misinterpreted and lead to the same type of malpractice problems as outright criticism. A genuinely surprised physician might say, for example, “Gee, that’s a surprising result. I’ve never seen anything quite like it.” Or a sympathetic doctor might say, “That must have really hurt. It’s too bad you didn’t call me instead. I would never have let you have so much pain.” Or a doctor simply expressing the uncertainties in medical practice might say, “Oh well, we can’t always hit the mark, can we?”

Although these physicians might have intended to portray sympathy, understanding, or humanity, patients may read criticism into any of them.

One patient testified, “I knew something was wrong with the medicine Dr. A. prescribed because of the way Dr. B. looked when I told her about it. She looked surprised, like she couldn’t believe it. She shook her head and frowned. She didn’t say anything, but I knew she thought he’d made a mistake.”

Another occasion when jousting occurs unintentionally is when physicians in a teaching hospital openly discuss a patient’s treatment by their hometown physician with residents and students. A patient listening to their speculation about and description of problems with the patient’s care before he or she came to the facility could easily interpret the comments as criticism.

Risk Management
The practice of medicine is a careful balancing of scientific judgment and professional instincts. Every decision a physician makes is potentially vulnerable to attack from a colleague who may disagree. Even in this day of protocols and evidenced-based medicine, standards of care are not black-and-white, static concepts but instead are nebulous and subject to change. Although physicians understand that differences of opinion are healthy and should even be encouraged, patients may see open dissention as an opportunity for a malpractice claim.

Certainly, there are times when physicians may legitimately believe another’s care was inappropriate or even negligent. A surgical instrument left inside a patient or an obvious fracture missed on an X‑ray are examples of findings physicians need to discuss with patients.

Still, be careful when bringing up the issue. If, for example, a surgical instrument was left inside a patient, rather than say something critical about the surgeon, stick to objective statements such as, “A surgical clamp that I saw on X-ray is probably causing your abdominal pain. You’ll need another operation to remove it. When will it be convenient for you to have the procedure?” It’s best to keep the focus on the problem and direct the patient’s attention to what can be done to remedy it, rather than point fingers and open your colleague—and yourself—up to a possible malpractice suit. MM

Cinda Velasco is an attorney with Midwest Medical Insurance Company in Minneapolis.