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Hospitalists: Better Care or More Potential Liability?

By Gene Moen

For many decades a hospital was primarily a physical facility to which doctors would admit patients for care or surgery. The admitting doctor – whether primary care doctor or surgeon – would then be in charge of the patient’s care while in the hospital, doing rounds on the patient, ordering medications and tests, and responding to nurses when called. It was a fairly simple model. Well, it’s not your father’s hospital any more.

For the past decade there has been a rapidly accelerating trend toward hospitals having in-house physicians (called “hospitalists”) who provide all or most of the general medical care for hospitalized patients. They have gone from 800 in the mid 1990s to more than 30,000 today. As one commentator said in 2009: “The hospitalist field is the only thing growing faster than the national debt.”

The goal is to provide better and more cost-effective hospital care. However, it also creates new risk for poor outcomes resulting from confused roles and communication. Attorneys handling hospital-based negligence cases should understand how hospitalists are changing hospital care and how this may affect how a claim is handled.

The vast majority of hospitalists are internists, although a few come from other specialties. There is no board certification for hospitalists, but the American Board of Internal Medicine has a new program that allows internists practicing in a hospital setting to earn a “Certification in Internal Medicine with a Focused Practice in Hospital Medicine.” The program is currently undergoing a five-year trial at a number of hospitals.

The lack of board certification makes it less clear about what kind of expert is needed to testify to the standard of care, let alone what that standard is. There is also no authoritative literature describing the hospitalists’ function and role. Decades ago, the same dilemma existed for emergency physicians, but the American College of Emergency Physicians developed a series of guidelines that delineated the responsibilities of ER physicians in particular case settings, and over the years treatises were published that provided guidance on appropriate care (e.g., Tintinelli’s and Rosen’s).

The reasons for the hospitalist trend are varied. From the perspective of many specialists, especially surgeons, the use of hospitalists for most post-op care has meant a peaceful night’s sleep without as many nurses’ calls at 2:00 a.m. For many primary care physicians, it has meant eliminating the need to make rushed early morning trips to the local hospital for rounds when an existing patient is admitted. From the hospitals’ perspective, it means that hospitalized patients will have 24/7 physicians available to respond to patients’ medical needs and to a nurse’s concerns or questions. Some observers are seeing hospitalists as key people in transitioning to the Obama administration’s health care reforms and their cost-reduction goals.

Another benefit seen by hospitals is that the hospitalist becomes a specialist in applying standards for admitting and discharging patients, so fewer patients are admitted who could be cared for as out-patients and fewer are kept in the hospital longer than needed. Some hospitals are requiring that all admissions from the emergency department have to be approved by a hospitalist who then becomes the attending physician for that patient.

In the past, teaching hospitals that have residents have often relied on the residents to fulfill some of the hospitalist functions. A problem was that residents are drawn from different specialty programs and may not have the needed medical knowledge to respond to the varied needs of hospitalized patients. They also are temporary employees for a limited period of time and may not have a good understanding of hospital protocols. As one physician wrote in a blog about hospital care: “The old residency model of doing a couple of weeks on ‘med consult’ (we come when you call us, we make a few recommendations, you may or may not listen, and we slink away) is increasingly out of sync with modern practice.”

Examples of the potential pitfalls arising from the hospitalist role are many. In one case, a young woman with pneumonia was admitted from the ER with a hospitalist as the attending. She had a long relationship with a local primary care physician (PCP), suffered from obstructive sleep apnea, and used a C-PAP at night. In the middle of the night, when she had a severe headache, the nurse called the hospitalist on duty (who had never seen the patient or her records) and he ordered Dilaudid for the pain. Within 45 minutes the patient had a respiratory arrest and died. No one had requested that the PCP records be sent to the hospital, and no one had spoken with the PCP. Thus the key knowledge about the patient’s sleep apnea and the need for caution in prescribing respiratory-depressant drugs was not available to the hospitalist when he gave his order.

This story illustrates one of the pitfalls of the hospitalist model: a physician makes a key medication decision without having sufficient information. The doctor who knows the information doesn’t participate in the patient’s hospital care. The result is the death of a patient. This example, and the one following, are in the category of care-transition errors, which are turning out to be a major area of potential liability. Each time a patient is “passed” from one provider to another, the chance for communication error arises. Each “passing” multiplies the chance for error.

Another actual case may illustrate other pitfalls. A patient is admitted for an endarterectomy to clear her carotid arteries. She is admitted to the hospital by a vascular surgeon, who then assumes that if there are any serious post-op problems he will be called. When the patient, on post-op day two, develops a visible hematoma and has breathing difficulties, the nurse caring for her contacts the hospitalist on duty. The hospitalist wants more information before deciding what to do, so he orders a CT scan of her neck.That process takes several hours, and when the patient is returned to her room she stops breathing and a code is called. The hematoma pushed her trachea so far to one side that she could no longer breath. The vascular surgeon happens to be in the hospital, and he responds to the code and does an emergency evacuation of the hematoma at the bedside. But the patient is left with anoxic brain damage.

The surgeon knows that a post-endarterectomy hematoma, if it causes any difficulty in breathing, is an emergency requiring immediate evacuation of the hematoma not a CT scan. The hospitalist doesn’t have detailed knowledge about post-op problems for this particular surgical procedure. He could have contacted the surgeon, but that might have delayed getting the imaging information the hospitalist assumed the surgeon would want.

Instead of one person (the nurse) standing between the patient and the surgeon, we now have two people (the nurse and the hospitalist). Actually in this particular case there were three people. A resident happened to come by and the nurse mentioned the hematoma and breathing problems to him. The resident then called the hospitalist with that information, and he and the hospitalist discussed whether to obtain a CT scan. There was some confusion as to what the nurse told the resident and what the resident told the hospitalist. All of this wasted critical time in treating a life-or-death emergency and had the potential for misleading information affecting the medical decisions.

KEY ISSUES

Following is a brief summary of some major liability issues relating to the new and developing role of the hospitalist.

Query: If a hospitalist treats the patient’s infection or neurological deficit without calling in a specialist, will she be held to the standard of the specialist? Or what if she fails to request a specialist consult? Will the standard be different in a rural hospital with few specialists available?

In an unpublished California appellate decision, the hospitalist admitted a cardiac patient with the understanding that her cardiac condition would be the responsibility of her cardiologist. When she developed problems, the nurses reported to the cardiologist. Upon her death, the claim was made that the hospitalist had an ongoing duty to monitor her care while in the hospital and to ensure that the cardiologist came in to see the patient.

The claim failed, but it illustrates the potential confusion that can occur with a hospitalist model of care and no clear delineations of responsibility. Query: If a claim is based on failure to properly coordinate care, would the standard of care (and expert testimony) be that of a “care coordinator?”

LITIGATION TIPS

If you are suing a hospital because of a hospitalist error, you may make the assumption that there is agency (either actual or ostensible). Although many hospitalists are employees of the hospital, others are employed by clinician groups or hospitalist specialty groups, which contract with the hospital. Early discovery will sort out which defendants you need to name.But even for employed hospitalists, you may need to name the physician as well as the employer hospital if you wish to settle the case. Many hospitals purchase separate insurance coverage for their employed hospitalists, often through a different insurance company, and the hospital will be reluctant to settle for full value unless the physician’s coverage is also on the negotiating table. Of course, this may mean one or more additional attorneys defending the case.

Potential hospital liability for staffing: Are there too many patients for each hospitalist to adequately fulfill his/her responsibilities? Protocols: Is it clear who is coordinating the care, what the role of the specialist consultant is, what the duties of the hospitalist are upon discharge, and what happens when the patient is transferred to the ICU, etc.?Just as with cases involving nursing negligence, it is often best to pin a share of the responsibility on the institution as well as the individual. The fact that the hospitalist model is relatively new will mean that many hospitals do not have adequate written policies and protocols in place. Discovery should be directed not only to the presence or lack of such policies and procedures, but at what efforts have been made by the hospital to develop them.If the claim is that a hospitalist erred in missing a diagnosis or ordering medications, to be safe you may want several experts on standard of care: First, an internist who is knowledgeable about the medical issues involved; second, a practicing hospitalist; third, a specialist in the particular medical condition (e.g., cardiologist, neurologist, etc.), and fourth, possibly an expert in hospital procedures or administration or an expert in care coordination.

Finding practicing hospitalists who will testify is not easy. It is such a new field that few want to stick their neck out and discuss what the standard of care is for hospitalists. It is likely they themselves don’t know what that standard is. Absent a hospitalist expert, you will certainly need someone with the same underlying specialty training as the physician involved (most likely an internist) who admits patients and cares for them in a hospital setting, even if the internist has a practice that is primarily office-based.

In this article I have only touched on the medical and legal issues that arise from the shift to a hospitalist model of hospital care. The field is rapidly evolving and there are many issues on which physicians do not agree. Different hospitals also handle the issues very differently. There are no texts on hospitalist medicine that are considered authoritative, but many sources offer information.

Dr. Robert Wachter at University of California San Francisco, who is credited with coining the word “hospitalist,” has an ongoing blog on this topic: http://community.the-hospitalist.org/blogs. The lively contributions from physicians and patients on his blog illustrate the areas of dispute and concern. The Journal of Hospital Medicine, started in 2006, covers the field as does two other publications: The Hospitalist and Today’s Hospitalist. If you would like other articles on this topic, just email me at: gene@cmglaw.com.

Gene Moen is a partner in the Seattle firm of Chemnick Moen Greenstreet, which limits its practice to medical negligence claims. This article relied a great deal on research done by associate attorney Catherine Mee Moen. It was first published in Trial News, January 2011.

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