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May 15 2012

Lessons from the NCMB’s malpractice review process: A personal reflection

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Image for Lessons from the NCMB’s malpractice review process: A personal reflection North Carolina Medical Board to review every malpractice payment affecting or involving its licensees.

Professional liability payments are a sore subject for most medical practitioners and probably always will be. In writing this column I considered whether licensees would want to hear the message I’d like to impart, which is this: The NCMB’s malpractice review process is as valuable to the licensee, in my view, as it is to patients.

I write this not just as a member of the Board who is now in the midst of his sixth year of service on the NCMB committee that reviews malpractice payments (as Board President I am currently not a voting member). I write as a surgeon who went through the humbling and, ultimately, rewarding experience of having my own payment scrutinized by the Board.

I cannot adequately convey how deeply gratifying it was to learn that, after a characteristically rigorous review, the Board had found no problems with my care. That opinion helped to quiet, or at least balance, the nagging voices of the plaintiff’s attorney and expert reviewer. I had listened to them assert again and again, in the context of a settlement conference, that I was a horrible, negligent physician.

When my colleagues on the Board elected me president, it occurred to me that this column presented a unique opportunity to share insight into the NCMB’s malpractice case review process, from the vantage points of both case reviewer and licensee reviewed.

My malpractice experience
I have been in practice as a neurosurgeon for 30 years. It’s a high-risk field and lawsuits (and, in many cases, settlement payments) are relatively common. In fact, the data on neurosurgery say that, on average, a neurosurgeon is sued every two years. In that sense, one could say I’ve been fortunate to have had just one payment over the course of my career. This payment brought me to the Medical Board’s attention as a rank-and-file licensee.

The case that led to the payment involved my care of a minor child. The child had sustained a head injury several weeks prior to being referred to me with a complaint of worsening headaches. I performed an examination and reviewed the child’s head CT scan with a radiologist. I recommended immediate surgery to correct a subdural hematoma. The parent who had accompanied the child to the hospital declined to give consent until the child’s other parent arrived to help with the decision. I reserved the OR and the child was admitted to the neurosurgical unit. A code was called early the next morning, and despite aggressive efforts to resuscitate, the child expired.

Any tragedy like this is life marking, for the family obviously, but for the surgeon as well. I have often relived the events of that day and wondered what, if anything, I could have done differently that might have resulted in the child surviving.

Don’t misunderstand me. To this day I believe my care was appropriate. The family, however, alleged that the gravity of the child’s condition, the need for immediate intervention and the potential risks of delay were not clearly communicated. Due to a technical issue with the hospital’s electronic health records, no documentation of my initial treatment recommendation was available to support me. My insurance company felt it was prudent to settle.

The Board’s review process
As I mentioned, the NCMB reviews every malpractice payment affecting or involving licensees. The Board learns about these payments from various sources, including reports made by licensees, reports made by insurance companies and information obtained by the Board from the National Practitioner Data Bank. By reviewing each payment, the Board fulfills its duty to the people of North Carolina to review the care and determine if some type of action against the licensee is needed to protect the public.

Anyone who is even the slightest bit familiar with the adversarial malpractice litigation system knows that each side presents expert testimony that supports their perspective as the right and appropriate view. Of course, these experts are paid to provide their opinions. I knew, as someone who had participated in scores of malpractice case reviews in my role as a member of the Board, that the NCMB’s review of my case would be impartial. I also knew that, almost certainly, the Board would seek the expert opinion of an independent reviewer who, though compensated for his or her opinion, would have no interest in whether the review supported the plaintiff or whether it supported me. That’s a meaningful review.

When the time came for the Board to discuss my case, I left the room (as is customary on those infrequent occasions when a member of the Board is the subject of an inquiry by the NCMB). I don’t know what was said, but I’m confident that my colleagues on the Board were as thorough, exacting and, ultimately, rational in their analysis of the patient care associated with my payment as we are of all the other malpractice cases the NCMB reviews.

Finally the day came when the Board’s decision was made known to me and I learned that they had found my actions to be appropriate, and that no action would be taken against me. For me it had tremendous value to know that a group of qualified physicians had discussed my case, with the benefit of an independent expert medical reviewer’s opinion, and determined that my actions met the standard of care. It was a tremendous lift for me.

Conclusion
No one enjoys being sued, especially when the lawsuit attacks one’s knowledge, skill and integrity as a professional. Yet lawsuits that allege malpractice are a reality for medical practitioners.

For those of us who have experienced a malpractice claim, the most we can hope is that, at the end of the day, we are able to learn something from it.

I learned that, for better or for worse, you stand on the quality of your records. Again, I believe that the care that led to my payment was appropriate and that records, had they been available, would have shown this. Nonetheless, being forced to examine and defend the care related to the case I’ve described caused me to recognize that one can always do better. As a result, I became even more meticulous with my documentation. My written and dictated notes document what some might consider minutiae.

In addition, the tragic death of the child and the family’s primary complaint—that I failed to appropriately communicate the urgency of the situation and the potential consequences of delay—caused me to take a hard look at how I communicate treatment recommendations to patients and family members. I thought I had adequately conveyed the seriousness of the child’s condition but, clearly, this family needed more. Again, we can always do better. I have tried to be even more attentive to the needs of my patients and their loved ones to ensure that everyone involved has the information they need to make decisions about care.

One final thought I’d like to leave you with is that, in the big picture, there are relatively few instances in which the Board says, “We think you gave poor care and we think it warrants public discipline.” As the flow chart below shows, the Board is far more likely to close its review of patient care leading to a payment with no formal action or with some type of private action. Private actions typically bring areas of specific concern to the licensee’s attention and recommend steps the licensee can take to improve their care and prevent similar occurrences in future.

Please take a moment to review the process outlined in the chart, as well as the data on case resolutions and public* status. It’s the first time the NCMB has published this information.


*My malpractice payment information does not appear on my Licensee Information page because it does not meet criteria established by statute.

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