Malpractice Consult

January 10, 2000

If hospital policy jeopardizes a patient; Checking your file in the data bank

Malpractice Consult

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By Lee J. Johnson, JD

If hospital policy jeopardizes a patient

Q: My hospital's intensive care unit requires keeping one bed openat all times for an emergency admission. Recently, when all beds were filled,the charge nurse called an attending to request that he transfer a patientto the regular floor to open up a bed. The attending refused because hefelt the patient wasn't stable enough. The charge nurse then called thechief of medicine at home. He gave a verbal order to transfer the patient,whom he'd never seen.

No one told the attending that the patient had been moved until hecame in the next morning for rounds. When he objected, the nurse remindedhim of the policy that a bed should be vacant at all times. She also citeda policy that any patient with a DNR order can be removed from the ICU.

What are the malpractice implications of these policies? Does federallaw provide any protection for patients with DNR orders?

A:Theoretically, keeping a bed open for possible emergencies seemswell-intended. But the policy described here is far too rigid; it can inviteinjuries to patients and consequent litigation.

The policy should be more flexible, and it should designate the personwho has the authority to implement it, such as the chief of medicine. (Onewould hope he'd use better judgment than he exercised in this case.) Thecharge nurse doesn't have the requisite training to make these medical judgments,and she probably doesn't want the liability that goes with making such decisions.

The chief of medicine—or whoever's in charge of the ICU—is responsiblefor making an informed medical judgment about each patient's condition andwhether that patient needs the close observation and equipment availablein the unit. If the patient described here had deteriorated after beingtransferred to a regular floor, he'd have a solid claim against both thechief and the hospital.

By failing to come in to examine the patient, the chief breached theacceptable standard of care. Presumably, he didn't review the records, either,but relied instead on the charge nurse's interpretation of the medical facts.The chief should have reviewed the records himself, or examined the otherICU patients, before deciding who was most in need of the bed.

It certainly would have been smarter for the chief to leave the ICU fullfor the night—or at least until another emergency presented. Then he couldhave decided which patient, if any, to move to the regular floor.

Notifying the attending of such a decision is more than simple courtesy.It's required by most hospitals. The chief of medicine would clearlybe the main target of any litigation, but he could bring down the hospitaland attending with him.

The other ICU policy cited here—regarding DNR orders—is far too broad.The federal Patient Self-Determination Act requires that all patients admittedto a hospital be informed about advance directives. How these directivesare to be implemented, though, is left up to state law, which allows forvery specific instructions. In many states, a patient may refuse cardiacand respiratory intervention but may not refuse nutrition and/or hydration.Suppose a patient wants to refuse a code that involves cardiac resuscitationbut doesn't want to refuse artificial respiration. That patient may wellbelong in the ICU.

The attending should be allowed to use his judgment. If a patient witha specific DNR directive is denied an ICU bed and runs into trouble on theregular floor, the hospital's policy won't protect the attending—or inthis case the chief—from liability. DNR orders need to be evaluated caseby case, not according to an uncompromising policy.

Physicians who practice at this hospital should try to get the policyamended. They must always act as advocates for their patients when an ICUbed is needed. As soon as he heard about the transfer, the attending inthis scenario might have called the chief of medicine himself to explainwhy the patient shouldn't be moved. The attending should go on record bywriting to the chief that patient safety could be jeopardized by such arigid policy.

Checking your file in the data bank

Q:I'm applying for hospital privileges and don't want to omit anythingfrom my application. I settled a complicated malpractice case a few yearsago, but I don't recall all of the details. How can I request informationfrom my own file with the National Practitioner Data Bank?

A:You may obtain a copy of the information in your file for afee of $10. The request must be notarized to assure that you are the oneasking for the file. You will receive a copy of the medical malpracticepayment, adverse action, or Medicare/Medicaid exclusion information reportedabout you. You'll also get a list of all entities, such as hospitals ormanaged care organizations, that have obtained copies.

The data bank Web site www.npdb-hipdb.comwill help you file a request. Or you can contact a help line at 1-800-767-6732.

The author, based in Mount Kisco, NY, is a health care attorney whospecializes in risk management issues. This department answers common professional-liabilityquestions. It isn't intended to provide specific legal advice. If you havea question, please submit it to Malpractice Consult, Medical Economicsmagazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax yourquestion to 201-722-2688 or send it via e-mail to memalp@medec.com



Lee Johnson. Malpractice Consult. Medical Economics 2000;1:165.