From the Chief Medical Officer

CEP America’s Current Malpractice Trends

By Mark Spiro, MD

This is an abbreviated summary of my presentations at the three recent CEP Symposia in 2016. The summary is based on CEP America’s lawsuit trends I have observed over the past two and 1/2 years.

 At the outset, it is helpful to share a little background to place the observations in context. In my role as The Mutual’s Chief Medical Officer, I review every new lawsuit and most new claims. I hope that by conveying the trends I’ve identified over the past two and ½ years, the knowledge will help you avoid a claim or lawsuit related to these emerging legal actions.

The items below are not exclusive. Certain diagnoses/issues that occur with some regularity are not newer trends, so I have not included them. For example, missed MI, PE, appendicitis and fractures have been and continue to be causes of action against our CEP America insureds. But there are some newer trends about which you may or may not be aware, so that is where I will focus.

  1. OBESITY. I am amazed at how frequently I read a chart in one of our cases and learn the patient was obese – often morbidly obese. One issue related to patient obesity is the inability to obtain a scan at the facility where the patient originally presented and is being treated – whether it is a CT or an MRI. This results in a delay in obtaining the test--often the patients wait until morning when they can be transferred to a receiving facility that can perform the needed scan. In any case, there is often a delay with a transfer. That time delay can be advanced by the plaintiff’s lawyer as a cause of the patient’s poor outcome (often with spinal masses – see #3).

    What you can do to mitigate this dilemma is to involve a consultant before the scan is completed, if there is going to be a delay. Involving a consultant illustrates you have been proactive. I recognize the consultants typically will state there is nothing they can do without the scan, but it always is worth asking. The consultant may surprise you—and it is what may be best for the patient under the current conditions. In any case, the chart will reflect your proactivity on behalf of the patient as an advocate for their best interests.

    Another risk with obese patients is they often have significantly increased underlying medical problems (at times unknown) that can exacerbate what otherwise would be a simple, straightforward medical problem. For example, there may be complications of bariatric surgery, challenges in finding the correct drug dosage (is it total body weight, ideal body weight, or adjusted body weight?), and possibly even our own biases/prejudices toward the obese patient.

    Again, I see so many lawsuits involving obese patients that I do urge you to recognize the issues related to diagnosis and treatment of the significantly obese.

  2. RENAL CALCULI with UNDERLYING UTI. I have seen three cases in the past two years with renal calculi and undiagnosed UTI with horrible outcomes—often death. The obvious clinical picture of a kidney stone may blind us to the fact that the patient may have an underlying UTI. The dip urine will not often show signs of an infection as the gross blood in the urine may hide everything else. Fever may or may not be present with a pyelonephritis. So, maintain a high index of suspicion and obtain a microscopic urinalysis and culture when indicated.

  3. SPINAL MASSES- They have become our most frequent high exposure, meaning really expensive cases. And it makes sense that the exposure is high as a patient’s life is completely changed for the worse if a spinal mass is either undiagnosed or delayed in diagnosis. They have a very poor outcome. These spinal injuries may be due to hematomas, abscesses or cauda equina syndrome.

    The patients frequently are obese. Sometimes there is trauma. Sometimes they have risk factors for abscesses, such as I.V. drug abuse, alcoholism. Often the patients have a history of chronic back or neck pain. We see back/neck pain on a daily basis and obviously can’t MRI everyone. The cost and delay of care would be far too great. But even in the patient who has been seen multiple times for back pain, we should be aware of changes in the pattern of symptoms. Are there bilateral sensory or motor changes? Urinary retention? Change in pain pattern? Fever? If there is a suspicion of potential spinal cord injury, you should act promptly for both the patient’s welfare and your own risk protection. Any poor outcome may be blamed on delay – even a few hours.

  4. TPA and STROKE. Most of the lawsuits involving tPA claim injury based on failure to administer the medication – or a delay in administering it. There is a public perception that this new wonder drug – tPA, the clot buster –can cure a stroke. Obviously, reality is not quite like that. But the perception is there. All of us know to document why or why not we are giving tPA – but sometimes we forget. Fortunately, when we do document the rationale, we have been victorious in the lawsuits much more often than not.

  5. PA/NP PRACTICE. Ten years ago, PA/NPs were rarely sued. My belief is there were a couple of reasons. First is their practice was more focused on minor cases and second there was less public (and lawyer) understanding of what PA/NPs are and how they currently practice.

Now we are seeing many more cases involving PA/NPs as their practice has changed to be doing more invasive procedures and seeing more complex patients.

I am not trying to discourage the practice evolution—I support it. However, it is essential to recognize that PAs and NPs have not had the same level of training as physicians. So please, please have a culture that encourages PAs and NPs to get supervising physicians involved in any case in which they have discomfort or uncertainty. The lack of physician involvement is common in the lawsuits involving PAs and NPs. It doesn’t mean that a lawsuit wouldn’t occur if the supervising doctor had been involved, but if/when a lawsuit suit does occur, it will be much more defensible if there was collaboration between the physicians and the PA/NP, and of course, that the collaboration was documented. And for you docs who are worried about being named—you already are identified as the supervising physician, so ultimately you already are responsible (one of the responsibilities of using PA/NPs). A better outcome through increased collaboration may in fact help you avoid a lawsuit in the first instance.

Any article on risk can exaggerate fears about one’s own practice. That is not my intention. If you practice out of fear of lawyers or lawsuits, it will diminish the joy and satisfaction of caring for your patients. I am convinced our joy and satisfaction contribute to elevating our effectiveness as clinicians (which, in turn, will decrease our risk). My goal in writing this article is to inform you of the current trends I’ve observed; hopefully this information will prevent at least one poor outcome.

I can be reached almost any time if you have any comments or questions about this article or any other question related to risk. Email is best at Or you can reach me by phone at (925)-949-0127.