Recognizing the difference between medical errors and jousting:
CASE STUDY 1
A neurologist sees a patient for a stroke follow up. In reviewing the patient’s medical records, he sees that she had complained to her PCP about palpitations prior to her stroke. The EKG at that time showed atrial fibrillation, but the issue was never addressed. The neurologist believes that the atrial fibrillation was causative of the stroke and the patient will need anticoagulation. How should the neurologist handle this issue?
CASE STUDY 2
A 35-year-old man with a comminuted humerus fracture is treated surgically by Doctor A. The patient moves to another state and follows up with a different orthopedic surgeon, Doctor Joust. Upon reviewing the X-ray, Doctor Joust asks “Why did Doctor A use this hardware? That’s crazy. What an idiot!”
These case studies present two situations where a physician sees a patient who has apparent medical misdiagnosis or mismanagement by a prior provider. In the first case, there appears to be a medical error and an ethical responsibility to be transparent with the patient. The second case represents a scenario where “jousting” occurred and the subsequent provider is critical of a previous provider’s care without a full understanding of what happened.
When a Medical Error Occurred
Talking with patients about other clinicians’ errors was the focus of a The New England Journal of Medicine (NEJM) article1 (Dr. Alan Lembitz, COPIC’s Chief Medical Officer, was one of the article’s authors). The article notes that even though physicians recognize the ethical duty to be transparent with patients, there are uncertainties with fulfilling this responsibility. Was the error due to a systems breakdown? Is there a back story you don’t know about? Who should tell the patient and how should one do that?
The AMA Code of Medical Ethics Opinions 9.4.22 notes that “Reporting a colleague who is incompetent or who engages in unethical behavior is intended not only to protect patients, but also to help ensure that colleagues receive appropriate assistance from a physician health program or other service to be able to practice safely and ethically.” However, before any action is taken, there should be an attempt to gather factual information about the situation.
As the neurologist in the first case was not involved with the event in question, he lacks firsthand knowledge. Certainly, a direct but caring discussion with the PCP is strongly suggested. The NEJM article also strongly states that the patient and families come first. If a disclosure is required, the fact that it is challenging should not stand in the way. The neurologist should explore what happened with the goal of communicating clearly with the patient.
Jousting
COPIC has long been a champion of avoiding this practice, which is evident in the second case. Jousting is casting negative comments on prior care without complete knowledge of the facts. The American College of Physician Ethics Manual3 states, “It is unethical for a physician to disparage the professional competence, knowledge, qualifications, or services of another physician to a patient or third party or to state or imply that a patient was poorly managed or mistreated by a colleague, without substantial evidence.”
The issue of criticizing other providers is further highlighted in a Journal of General Internal Medicine article4 about a study where recorded patient interviews showed that 30% of physicians' comments were critical of prior care, often in an ad hominin fashion. The lead author, Dr. Susan McDaniel, stated that “doctors will throw each other under the bus. I don’t think they even realize the extent to which they do that or how it can affect patients.” All this can lead to unnecessary pain and litigation.
Jousting comes in both subtle and obvious forms. Subtle could be a hallway conversation with a nurse that the patient overhears. Also, there can be nonverbal communication that casts doubt about the prior care. For example, an incredulous look or a dismissive grimace can suggest bad care. While jousting can be obvious (as in the second case), it also extends to chart criticism which is fodder for plaintiff attorneys. By passing judgment, the critical physician may feel that they are being transparent. However, this creates triangulation between the providers and the patient and can lead to anxiety and mistrust when the patient is then caught between two professionals.
SUMMARY
In both situations—perceived medical errors by other providers and jousting—there are some key principles to keep in mind:
- Review the medical record of the patient. If there are concerns, make sure you examine the record thoroughly and clearly identify areas of concern.
- Avoid using the patient’s medical record to raise concerns about a potential error. In COPIC’s experience, this approach is counterproductive to the aims of improving the patient’s medical care and provides evidence that could be taken out of context in a subsequent liability action.
- Talk to the previous provider. Do this from a position of open inquiry and caring. There should be an attempt to resolve the factual history and the correct subsequent course before the patient disclosure process. However, the patient’s time frame and “need to know” dictates that the communication be as time sensitive as is practically possible.
- Do not harm the patient’s trust in the medical system just to benefit yourself or boost your ego. Being critical of other providers can stem from a desire to take care of the patient, reinforce your abilities as a physician, or as a result of the anxiety and frustration being felt.
- If concerns persist, make a referral to appropriate peer review bodies to do an independent evaluation.
We are all focused on patient-centered care. Physicians should be aware and monitor their own feelings and words about prior care. Expressing one’s honest opinion, if necessary for patient care, can be accomplished without rancor or insult and can lead to better care of the patient.
1 N Engl J Med 369;18 1752-1757 (case study was adapted from this article)
2 www.ama-assn.org/delivering-care/ethics/reporting-incompetent-or-unethical-behaviors-colleagues
3 www.acponline.org/clinical-information/ethics-and-professionalism
4 J Gen Intern Med. 2013 Nov; 28(11): 1405–1409.
Information in this article is for general educational purposes and is not intended to establish practice guidelines or provide legal advice.
Article originally published in 4Q21 Copiscope.
