MEDICAL JOUSTING—FREQUENT CAUSE OF MALPRACTICE LITIGATION

By Dr. Lalit Kapoor ©

Medico-legal liability is now an increasingly challenging reality. Never before in the history of the medical profession in India have we witnessed the kind of hostility and aggression against doctors as is evident today. 

Even as I type these lines, there are newspaper reports of ongoing violence against doctors in various parts of the country following Covid deaths. Despite supreme personal sacrifices by doctors, nurses, and other healthcare workers, at all times, strangely, the public perception of the medical profession is at its lowest. There seems to be a serious trust deficit in the patient-doctor relationship.

This situation can only be compounded by the phenomenon known as medical jousting ----- something that should be consciously and scrupulously avoided.

Here are a few illustrations of the nature and repercussions of medical jousting.

🥊A Gastroenterologist admitted a patient to the hospital for acute pain in the epigastrium. On the basis of history and clinical examination a diagnosis of? Acute cholecystitis? Acute pancreatitis was made. Treatment was started accordingly and relevant investigations were ordered. WBC count of 20,400 and the presence of fever supported the diagnosis. Some abnormality in the ECG was attributed to the previous IHD 14 years ago as there were no fresh ECG changes. Liver enzyme levels were abnormal though USG did not reveal any abnormality. The patient responded to the standard line of treatment and was discharged after 8 days, being asymptomatic now.

After about two and a half months, the patient consulted a cardiologist in another hospital for chest pain. This time the ECG revealed fresh ischemia for which he was treated appropriately. However, the cardiologist allegedly remarked that he was “….shocked at the treatment given at the previous hospital “and in his opinion, the patient had in fact suffered myocardial ischemia at the time of the previous admission and the doctors had misdiagnosed it as cholecystitis.

As a result of the provocative remarks of the cardiologist, the patient was agitated and promptly filed a complaint before the National Commission claiming Rs. 1 crore as damages for gross negligence in diagnosis leading to severe damage to his heart and thus necessitating a CABG. The cardiologist, whose remarks had provoked the litigation, gave his comments in writing and even filed an affidavit in support of the complainant.

🥊A Gynecologist performed a hysterectomy for multiple uterine fibroids. A few months later the patient consulted another gynecologist for vaginal discharge and abdominal symptoms. The patient was re-operated and a retained abdominal sponge was removed. After displaying it to the not inconsiderable number of relatives present, the mop was put in a fancy glass bottle (much in the fashion of a hunting trophy!) and handed over to the husband of the patient with the comment: “Thank God you brought your wife to me in time else, she would have lost her life “

The following day a large mob, which included activists of a political party, stormed into the office of the first gynecologist, dragged him down two storeys of the building, and brutally assaulted him. An accompanying TV channel crew filmed the entire proceedings which were duly telecast the next day and the day after. A recording of the same is my possession.

 🥊An orthopedic surgeon gave a local steroid injection to a lady suffering from severe Tendo Achilles tendinitis. A month later, the patient developed a rupture of Tendo Achilles for which she was advised repair. On taking a second opinion from another orthopedic surgeon, she was told unequivocally that this had occurred because of wrong treatment. Local steroid injection is never, never to be given and hence she had a good case to claim damages from the doctor. He said he was willing to say so in writing. The inevitable happened and the orthopedic surgeon had to face a lot of unpleasant music!

🥊A Neurophysician, quite recently, diagnosed Hansen’s disease in a patient with foot drop and other neurological symptoms after due investigations including EMG, etc. He prescribed Dapsone to the patient after testing the patient for G6PD deficiency. Shortly thereafter, she developed Stevens-Johnson syndrome. A Dermatologist, whom the patient consulted, wrote on his letterhead ‘No evidence of Hansen's and said there was no need to have administered the drug. Soon after, a crowd of 20-25 persons trooped into the doctors ‘consulting room, intimidated him, and informed him that they were admitting the patient to a high-profile  Corporate hospital and since the complication had occurred because of his mistake, he ought to bear the cost of the entire medical treatment hereafter. The relatives of the patient browbeat him into giving a cheque of Rs. 1 lakh in favor of the hospital where they proposed to admit him. And they promised to return for more money on an SOS basis!

🥊A Surgeon had to convert a Lap Cholecystectomy into open surgery because of difficulties. Post-surgery, after a couple of months, recurrence of abdominal pain led to further investigations including CT scan abdomen, and a retained abdominal mop was diagnosed. The patient was unwilling to continue treatment with the same surgeon and went to another hospital. Laparotomy was performed by this surgeon and the mop retrieved. The surgery was videotaped by the surgeon. Subsequently; the relatives of the patient confronted the first hospital very aggressively and demanded compensation. One of the relatives flashed a CD  and said they had a video recording of the mop removal surgery and threatened to splash it in the media. Left with no choice, the hospital and the surgeon made a financial settlement

PATIENT PROVOCATION LEADS TO LITIGATION.

Any number of similar cases of critical or provocative statements by doctors can be cited. I have a long list of them. Orthopedic implant failures, incomplete MTPs, limb amputations ----- the entire gamut of cases where the common feature was the unintended, or sometimes intended (!), off-the-cuff remarks which instigated patients to make a beeline to an Advocate, marking the beginning of tortuous litigation and mental and physical harassment of the concerned doctor.

Undoubtedly, a fair percentage of medico-legal problems have their genesis in critical comments by doctors against the previous treating doctor

In the USA, such provocation of patients has been given a name. They call it “Medical  Jousting”.

ORIGIN OF THE WORD ‘JOUSTING’

The historical meaning of jousting is to be engaged in a sporting contest in which two opponents on horseback fight with lances.

DEFINITION OF MEDICAL JOUSTING 

Jousting has been defined as the unfortunate practice of one health care professional making critical / derogatory comments about another provider’s care, either to the patient or relatives, without having reviewed all the pertinent records and without discussing his or her concerns with the previous physician.

Jousting is not always oral. Criticism recorded in a patient’s case paper can be just as damaging, in fact, more, since it forms part of the documentary record and will become evidence in case of litigation. It can make it difficult for the concerned doctor to defend himself even in a defensible case.

Stated simply, medical jousting is bad-mouthing your professional colleague and finding fault with the earlier treatment in a provocative manner.

VARIETIES OF JOUSTING 

📢It may be unintentional or intentional

📢It may be direct verbal or indirect verbal

📢It may be non-direct through body language

📢It may be written in the patient record

WHY DOCTORS INDULGE IN JOUSTING 

What is the reason for such provocative comments against previous treating doctors?

1. If I run down the previous Consultant’s treatment, by default, I become superior and elevate myself in front of the patient. Some physicians feel that criticizing another physician to a patient may be an effective way of fortifying their own credentials and build up the patient’s trust.

2. Such criticism gives vicarious pleasure (? sadistic). In fact, it makes you feel smug and is generally quite enjoyable!

3. This may also arise from professional jealousy, envy, or grandiosity.  

4. Importantly, such criticism also serves the purpose of covering up any shortcomings in the subsequent treatment by the new doctor. He/she can always say “See, this would not have happened had you come to me in the first place. Your case has been messed up by the previous doctor. I tried my best to undo the damage that had been caused” 

5. There are some doctors who have developed a reputation of being habitual instigators.

6. In some cases, the new doctor genuinely believes that improper, irrational, or negligent treatment was given by the previous doctor, and it his duty to inform the patient.

However, it is something that is best avoided. It must be realized that, sooner than you think, YOU could be at the receiving end.

MCI CODE OF ETHICS

Interestingly, the Medical Council of India in its Code of Ethics as amended in 2002 considers medical jousting unequivocally unethical as stated in Clause 4.2 of its notification:

Indian Medical Council(Professional Conduct, Etiquette and Ethics) Regulations, 2002(Published in Part III, Section 4 of the Gazette of India, dated 6th April,2002)MEDICAL COUNCIL OF INDIA NOTIFICATION

4.2 Conduct in consultation: In consultations, no insincerity, rivalry or envy should be indulged in. All due respect should be observed towards the physician in-charge of the case and no statement or remark be made, which would impair the confidence reposed in him. For this purpose no discussion should be carried on in the presence of the patient or his representative

HINDSIGHT IS 20/20!

Please remember:

1. The practice of Medicine is a careful balancing of scientific judgment and professional instincts.Every decision a physician makes is potentially vulnerable to attack from a colleague who may not agree Standards of care are not black and white static concepts but are nebulous and subject to change
2. You can see things quite clearly after they have happened. Indeed hindsight is always 20/20!

In the face of the above, one should think twice or even thrice before making provocative statements against the earlier doctor. The incidence of medical litigation would drop down considerably if some restraint is exercised while commenting on the treatment given by the earlier doctors. Some apparently innocent remarks can prove quite costly to the previous doctor(s).

The message then is –No professional jousting

I came across a list of very wise “Tips to Help You Avoid Jousting (and Potential Malpractice Claims)” formulated by Cinda Velasco, a malpractice attorney from Minneapolis, USA. I am reproducing the same verbatim since they are extremely relevant to us and provide much-needed advice in the current turbulent medico-legal scenario in our country.

💊Gather all of the medical facts before drawing any conclusions. Patients often distort or misstate information when recalling events or test results.

💊Avoid insinuating that a patient’s current condition is harder to manage because of another physician’s decisions.

💊Be aware of your body language when seeing a patient for a second opinion. Frowning, sighing, rolling your eyes, or shaking your head are signals the patient may interpret as critical or negative.

💊When interviewing a patient, try to stay neutral. Ask questions such as: Did Dr. K. tell you why he decided to start you on this medication? If the patient cannot answer, let him or her know you’ll need to contact the treating physician to get more information.

💊Document objectively and without criticizing other providers.

💊If you wonder whether a comment you make might be misconstrued, put yourself in the other provider's shoes and imagine he or she would have made the comments to one of your patients.

Be that as it may, there are a few points which need to be considered.

📌We must drastically curb the tendency to criticize and run down colleagues without knowing the complete facts and circumstances of the case. It is only fair to personally speak to the earlier doctor to get the facts right. This is a courtesy you would expect as well should your role were to be reversed. Patients’ version of medical matters is notoriously biased and based on hearsay and it is best to not rely on its face value.

📌Even if certain deficiencies are noted in the previous treatment, the same may be explained to the patient clinically without needlessly instigating the patient.

Having said all this, we need to add an important caveat and to make it amply clear that the above remarks need to be qualified with some cautionary reservations.

Yes, we don’t need to justify or cover up irrational, unethical, or risky conduct of our colleagues. Patients need to be informed truthfully keeping in mind all the points discussed above. You need to inform patients but certainly not provoke or instigate, whether directly or indirectly i.e. verbally, non-verbally (body language), or by written words. It is also wise to remember "HOW you say something is as important as WHAT you say"  

To give an example, in a case of a retained foreign body such as an abdominal mop, you need to inform the patient, of course. But this should be done objectively. It is best to keep the focus on the problem and direct the patient’s attention to what can be done to remedy it, rather than point fingers and open your colleague up to possible malpractice litigation. 

TO CONCLUDE 

✅Indulging in professional jousting is like scoring a self-goal.

✅Professional jousting is a No-win activity. It harms doctors, patients, and the health care system.

✅Before criticizing think about whether you are following the advice: Do unto others as you would have others do unto you !!

✅Remember: More than 30 % of litigations against doctors will reduce if you decide to avoid medical jousting.

Dr.Lalit Kapoor ©

ABOUT THE AUTHOR

Dr. Lalit Kapoor is a General Surgeon practicing in Mumbai. He is the founder of the Medico-Legal Cell, Association of Medical Consultants, and is a medico-legal expert assisting affected members with medico-legal problems for over four decades. He is also the author of the book Better Safe Than Sorry- Medico-Legal Do's & Don'ts.

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