
Minnesota court decision means doctors can be sued by patients they don't treat - scripthacker
https://thedeductible.com/2019/06/10/why-did-susan-warren-die/
======
equivocates
Medical malpractice lawyer here:

Setting aside the sensational headline, this seems a reasonable result.
According to the article, the hospitalist who did not see the patient decided
to (a) opine that her symptoms were due to some other, incorrect cause; and
(b) override the decision of the doctor who actually saw the patient. Why
shouldn't this individual have accountability for the harm that he caused? He
wants to make life or death decisions without so much as examining the patient
and he doesn't want to be held responsible for those decisions. How is that
fair?

~~~
repolfx
Not a malpractice lawyer here, but surely the answers to your question are
somewhat obvious? Many countries don't have the same culture of suing doctors
as the USA.

Having read this I honestly was left wondering whether malpractice should
exist as a concept at all. Clearly several people screwed up with bad
consequences here. But it seems like this isn't something the courts can fix.

For one, isn't it true that many (most?) doctors in the USA have malpractice
insurance? Any lawsuit win against them doesn't make much personal financial
difference, just increases medical costs for everyone else as the payment to
the 'victim' (not the actual direct victim in this case) is just socialised
and dispersed. Moreover the fact that insurance is sold at all suggests that
malpractice claims are seen as being in some sense random and unavoidable risk
events, not something that can actually be avoided by just being sensible.

For another, presumably the underlying logic of malpractice suits is to punish
the underlying error in order to incentivise ... something ... that would
prevent a recurrence. Is there any plausible, actionable outcome here which
would prevent this type of repeated human error in future? One that that isn't
counterbalanced by costs that would yield worse outcomes in other cases? If
so, why are we so sure the courts are best placed to locate and enforce this
vs the medical profession itself, which I believe already aims to save as many
lives as possible?

In the software industry there are no malpractice suits. I can't believe it
would benefit anything if there were: imagine if people could directly take
devops staff at major web services to court anytime there was an outage
because they made a thinko in a config file? Would this magically eliminate
outages because everyone is now being super careful? Certainly not. People are
already well incentivised to avoid mistakes. You'd just get malpractice
insurance in the software industry too, and those costs would be passed on to
employers in one form or another, so all that'd occur is random payouts to
random people who happened to sweet-talk the court into perceiving
"malpractice" vs ordinary mistakes and a whole lot of time spent on lawyers. I
can't believe it'd actually impact software reliability in any meaningful way,
and if it somehow did it'd probably only be by eliminating business models
that were striking a reasonable risk/stability balance already (e.g. Twitter
and Facebook in the early days prioritised moving fast and breaking things
over absolute stability despite millions of people using their services).

~~~
moftz
If you are a paying customer and you signed an SLA with a service provider,
you absolutely could take them to court for not meeting their end of the
uptime agreement. A business providing internet services to other businesses
with SLAs would probably have some sort of insurance to cover that kind of
situation.

The facility where the doctor works typically pays for the malpractice
insurance. The facility is the one that also hires and fires doctors. Screw up
too much and jack up the insurance premium, the facility might decide that you
need your own coverage or they might just fire you. The hospital might try to
increase prices to cover the increased premiums but that only works to an
extent. Medical insurance companies make agreements with healthcare facilities
as to what services and goods cost what. They aren't going to start to pay out
more just because the doctors there are screw-ups.

I don't think I would feel comfortable in a country where I would have no
legal recourse against a doctor that harmed me due to incompetence.

Would you host your app with a datacenter that says they will try their best
not to have outages? Or would you rather use a datacenter that guarantees
99.671% uptime?

------
maxxxxx
Makes total sense to me. If you have the power to decide on the treatment and
hospital admission of a patient you have a patient-doctor relationship. If
they want to reject responsibility they also should not have stated an opinion
without seeing the patient.

~~~
amputect
Yeah I came here to write more or less this exact comment -- the doctor
absolutely did make a medical judgement on the patient, and frankly it was an
astonishingly bad one. To declare, sight unseen, that a patient with several
severe signs of infection is simply prediabetic, is negligent in the extreme,
especially when the medical professional who is actually with the patient
doesn't agree.

~~~
hn_throwaway_99
Moreover, the Dr's argument that he was just "giving an opinion", but did not
actually accept or prevent her admittance, absolutely does not pass the smell
test. He was in a position of power, and from the description of the phone
call with the nurse practitioner in the article it is extremely clear he
wasn't just "offering an opinion", but was in fact denying admittance.

Honestly, I feel awful for the patient and her family, but I also feel awful
for the NP who tried to do the right thing but was shot down by those with
greater seniority than her. I hope her employer changes their training so that
if something like this happens in the future that they just tell the patient
to go directly to the ER.

~~~
rmah
The NP did not try to do the right thing. Given the facts outlined in the
article, a qualified medical professional would have sent the patient to a
hospital (emergency room) regardless of the opinion of the consulting MD's who
did not see the patient. Why? Because the NP did see the patient. Why take an
off the cuff opinion of a MD who hasn't examined the patient or seen his
charts (all info was given verbally over the phone) as absolute? Note, many
seem to interpret the refusal of admission as an inability to go to a
hospital, that is not the case. The emergency room was still available.

IMO, there was failure at all levels. The NP failed, the consulting doctors
failed, the hospital chain failed. Systemic failure.

~~~
olliej
Except they all seem to be part of the same company so I assume they have
rules saying that the NP needs to give the Dr’s opinion more control over the
decision. After all it sounded like they contacted multiple (of the company’s)
drs and they said the same thing.

If they are part of the same network the dr probably had access to the charts,
and if not I assume nurses who are required to call doctors can communicate
the content of a chart.

It also makes no sense to say: NP you are required to contact a doctor to get
permission to admit a patient, but if you think the doctor is wrong you should
admit them anyway. If that isn’t the rule then you should save money by not
having drs who only exist to answer the phone and trust you NPs to admit
patients who need it.

------
jawns
I think it really hinges on whether this is a "curbside consult" or an actual
denial of service.

Based on the facts details in the post, it is at least arguable that the
conversation between the NP and the doctor was merely a consultation on a
diagnosis, which medical professionals do among themselves all the time, and
not an actual denial of service.

Simon, the NP, described the symptoms to Dinter, the MD, and he gave his
opinion -- which turned out to be a really bad opinion with deadly
consequences.

But I think it could be argued that it is ultimately the responsibility of the
NP or doc who is actually treating the patient, not any physician she might
have consulted (and especially not one who has not actually seen the patient),
to recognize when she's being given horrible advice. And it seems as if she
did recognize that it was horrible advice, but wasn't willing to overrule it
and send the patient to the ER against Dinter's advice.

The post says that Dinter implied, during his conversation with Simon, that it
would be pointless to admit the patient. But does that mean he _refused_ to
admit her? It seems to me that there's at least arguably a difference between
the two, and that his conduct did not actually constitute a refusal of
service.

~~~
tialaramex
If the hospital thought it had something there, it could have tried raising
this, but as far as I can see it didn't.

My guess is that this line gets shot down because the lawyers for Warren are
going to ask Dinter to explain about how this mechanism where the NP admits
patients over his objection works, maybe giving examples, and the hospital
knows there aren't any examples because in fact policy is to never allow this
to happen. It's going to cause the court to dwell on what you did wrong (not
admitting the patient), which isn't what you want to happen if you're worried
the court may rule against you.

It's pretty obvious that they're hiding behind the idea it's a kerbside
consult when really it's a gatekeeper role, and courts are ideally placed in
law to judge that sort of thing because they're obliged to work with events
that really happened whereas lawmakers can live in a hypothetical universe.
Maybe hypothetically there is no "gatekeeper" role, but if the fact is that
every admission goes through one of these hospitalists, then de facto that's a
gatekeeper.

~~~
JakaJancar
> Baldwin testified that a hospitalist disagreeing with a request for
> admission “doesn’t happen very often,” but when it does, a medical
> professional will select another path to hospitalization. The one time it
> happened to her, Baldwin “had the patient go to the emergency room at
> Fairview Range.”

So at least she has a 100% success rate in bypassing the gatekeeper.

------
duxup
>After hearing Simon’s summary of Warren’s symptoms, Dr. Dinter declared her
symptoms were due to “a diabetes that’s out of control” (as the Court of
Appeals put it) and recommended that Simon send her home with some diabetes
medication, and schedule a follow-up visit for next Monday, three days later.
Upon hearing this strange diagnosis, Simon politely inquired whether it was
accurate. “Simon says she asked whether diabetes could actually be the source
of the elevated white-blood-cell count,” reported the court, “and that Dinter
responded that it could. Simon says she asked this question because it was the
first time someone had told her that out-of-control diabetes could cause a
high white-cell count.” Rather than challenge Dinter’s flaky diagnosis, Simon
asked him again to admit Warren. Dinter replied, “To what end?” (pp. 4-5)
Simon got the message: Dinter had made up his mind he would not admit this
patient, and he was not interested in further discussion.

The hospitalist didn't treat the person directly, but they clearly made a
decision about what to do with the patient.

------
tptacek
The outcome here seems reasonable, but I'm a bit concerned about the jab at
"value-based care" and "pay-for-performance" buried in the middle of it (in
the "were there financial incentives in avoiding care" section).

Americans _are_ generally over-treated (ironically, one narrative for why this
happens is a concern about malpractice suits). There's very good reason to
shift compensation away from services rendered to outcomes achieved; there's
also a long track record in the US of treatments, particular inpatient and
outpatient "procedures", of dubious efficacy. The controversy over "useless"
coronary stents is a good example, but a better one might be the difference in
hernia treatment between the US (where the procedures tend to be outpatient
laparoscopy) and the UK (inpatient, and performed with less frequency).

The US pays substantially more than _everyone else_ for medical care, and the
reasons why probably don't have that much to do with prescription costs or
administration, which make up a relatively small portion of total health
spending; rather, we have inefficiently deployed hospitals, often with high
vacancy rates, and prescribe a lot of procedures that might not need to occur.

Obviously that's not what happened here!

------
rgejman
I haven't done a deep dive here... but this makes no sense for multiple
reasons.

1\. It will have a chilling effect on physicians giving informal ("curbside")
consults to colleagues. That leads to worse patient care overall. For instance
if your doctor doesn't know what's up with you, he/she may not be able to
curbside consult phone a colleague to get a 2nd opinion. This happens all the
time in medicine and is one of the advantages of being at a medical center
with lots of doctors: you can double check weird cases with your colleagues.

2\. Direct admission to the inpatient ward are no longer common because
outside physicians don't run hospitals anymore. Hospitals are run by teams who
specialize in inpatient medicine -- and they almost always function best if
the inpatient admission is preceded by an ED visit because the ED can rapidly
get tests, imaging and collateral to figure out what's wrong—and if the
problem needs inpatient management or not. Direct admissions, in bypassing
this step, often put patients at risk by skipping the rapid information
gathering process that the ED employs.

The "admitting privileges" they discuss in this article are a relatively
meaningless and outdated practice in medicine today (with certain exceptions,
such as obstetricians and some other surgeons).

~~~
belorn
The case is limited to hospitals which only admit patients through doctor
recommendations, and where the consultation is about admitting the patient to
that specific hospital. If a doctor doesn't know what's up they can curbside
consult phone a colleague to get a 2nd opinion.

In my view, intention and context is what dictate most legal outcomes. That
narrows decision usually down to very specific situations.

~~~
rgejman
Where does it say that? This NP was practicing independently and the Fairview
hospital has an ED. There is no reason that if the NP was concerned she should
not have sent the patient to the ED.

------
gumby
HN headline is slightly misleading:* the doctors still made a _treatment
decision_ which is, as the courts sensibly held, is a medical decision (for
example I would not be considered qualified to make such a decision). And
while doctors are imperfect should not be punished for errors out of their
reasonable control, this seems unambiguously to be malpractice.

* the original title is useless so thanks to scripthacker for writing something more useful.

------
Scoundreller
I can’t figure out why the Nurse Practitioner didn’t send the patient to ER?

Are direct admits to hospital that bypass ER common outside of, say, fractures
or elective surgery?

~~~
maxxxxx
I bet it's because they system is very hierarchical. Once a doctor says
something the nurse can't really override it.

~~~
rustybelt
The NP absolutely could have sent the patient to the ER. The vast majority of
patients admitted to a hospital come in through the ER.

~~~
SolarNet
I think the problem is she brought it to her organization's doctor that often
does the ER admitting in situations like this and that doctor overruled her.

The NP could still have done it, but it would have been against two different
doctors and the organization who employs her practices. The sad thing is that
this probably happens often, this is just the first time someone sued over the
death.

~~~
Scoundreller
Or the first time it got taken to court instead of settled by everyone
involved.

------
hedora
This decision will hopefully have positive follow on effects for mental health
care.

Currently, (in California, so outside the jurisdiction of the court in the
article), it is extremely difficult to get someone that is coherent, but
violent or suicidal admitted to a hospital, even if they have insurance,
doctors and family members that agree with hospitalization, etc.

The next time someone like this is denied admission, and then commits suicide
or murders a bunch of people at a school, religious / political gathering,
etc, I hope the facility that denied admission is held financially
responsible, and these policies are changed as a result.

~~~
gamblor956
_The next time someone like this is denied admission, and then commits suicide
or murders a bunch of people at a school, religious / political gathering,
etc, I hope the facility that denied admission is held financially
responsible, and these policies are changed as a result. _

This doesn't make any sense...

In California, the mentally ill can't be _committed_ to a hospital against
their wishes because they are deemed to have a constitutional right to be a
stark, raving lunatic on public property. The hospital and family would have
to show that the putative patient is a danger to themselves or others in order
to get them committed to a hospital.

However, if they have insurance, there wouldn't be any issue with a mental ill
person being admitted to a hospital of their own will (or with the permission
of someone designated to make medical decisions on their behalf aka medical
power of attorney).

------
DanBC
I'm amazed this need to go to supreme court because it seems obvious to me
that you are responsible if you decline to admit someone based on a mini-dx
you've made.

> It raises at least three questions worthy of extensive public debate.

The writer lists those 3 questions as

> (1) Who authorized Fairview hospitalists to deny admission to patients they
> haven’t examined?

> (2) Since when is diabetes a reasonable explanation of fever, chills and an
> elevated white-blood-cell count?

> (3) What role did financial incentives and micromanagement of doctors play
> in inducing Drs. Dinter and Baldwin to make such a serious error?

A more interesting question would be "does suing doctors prevent medical error
or negligence?" The answer is probably no. Here's a rough guide of what should
happen in England (although it often doesn't happen like this).
[https://improvement.nhs.uk/resources/just-culture-
guide/](https://improvement.nhs.uk/resources/just-culture-guide/)

That guide includes questions like "was there intent to cause harm?", "were
there protocols in place?", "were those protocols followed?"

> After hearing Simon’s summary of Warren’s symptoms, Dr. Dinter declared her
> symptoms were due to “a diabetes that’s out of control” [...] Rather than
> challenge Dinter’s flaky diagnosis, Simon asked him again to admit Warren.
> Dinter replied, “To what end?” (pp. 4-5) Simon got the message: Dinter had
> made up his mind he would not admit this patient, and he was not interested
> in further discussion.

An important set of questions to ask are:

1) Could it be sepsis?

2) Why isn't it sepsis?

3) What things make it this other dx and not sepsis?

There a bunch of information about how people perceived as lower status
(nurses v doctors in this case) can challenge the other person in a way that
causes a change in behaviour, rather than just a stubborn "digging the heels
in response".

Nurses play a crucial role in speaking up for patient safety.

Probe: "I don't understand why ...?"

Alert: "I am concerned that ..."

Challenge: "This risks harm because ..."

Emergency: "Stop. We need to get advice before we continue."

Sadly, it looks like this nurse did try to challenge and was let down by other
doctors.

~~~
man2525
From the legal documents I skimmed, it looks like the state hospital
association, state medical association, and american medical association were
on the side of the defense. The SC chief justice and an associate justice
dissented. I mentioned this to a friend who is a doctor, and he doesn't
believe the AMA would take a position.

Edit: Nevermind. The AMA's interest is that it is against abusive legislation
against physicians. They felt the facts were recited more favorably to the
prosecution.

------
ars
Before making final judgment on how to think about this case, I suggest
readers also read the comments in this article.

They from Dr.'s with personal knowledge on the case, and it's not as simple as
made out in the article.

------
arkades
So, without actually seeing the medical record, it's hard for _any_ outsider
to have a meaningful insight into this case. I'll make a few generalizations,
though, based on what I can glean from the article:

1\. "Admission to the hospital" means "being put in a bed upstairs to receive
treatment that can only be given in a hospital over the course of days." For a
hospitalist to admit, the patient bypasses the emergency room, bypasses an
initial ED workup, and passes directly into that physician's care. I know
don't know any hospitalists that will take a patient as described in this
article for a direct admission. The patient either belongs in an outpatient
management, or should be coming through the ED for initial speedy (relative to
inpatient!) workup and therapy. Direct-to-inpatient admission is for hospital-
only therapy that _isn 't_ an emergency - e.g., you need a week-long IV
infusion of a medication. You'd get admitted directly to that physician's
service, get brought in, get your infusion going, etc. Non-emergent.

When a physician "refuses to admit" from outpatient clinic it does not mean
"this patient can't come to the hospital". It means they don't avoid the ED
and go straight to the slower inpatient care process. This patient may very
well have needed some IV abx for six hours and then get sent home. That's not
the hospitalist's call, and not what the hospitalist is described as doing in
this article. Which makes sense, because /that's not how any of this works/.

This article's suggestion that a hospitalist saying "I'm not admitting this
patient" equals "this patient can't come to the hospital and should just go
home" is inaccurate and sloppy reporting. It's just wrong. And you know what?
The NP in this story knew that.

"However, rather than send Warren straight to the ER of the Fairview Range
Medical Center, Simon called the hospital “to seek Warren’s admission." " The
NP did the wrong thing, and the hospitalist saying No to the wrong thing is
getting blamed.

"If you have the power to decide on the treatment and hospital admission of a
patient you have a patient-doctor relationship." is incorrect. This doctor did
not have power to stop this patient from coming to the ED and getting ED care,
which is _the route the NP should have sent them through_ and the only route
for getting emergency management in the hospital. The NP asked for a thing
that does not happen and is not needed for the patient to get the right care
and is in fact the Wrong care, and now it's being described as though the
hospitalist had the power to say "go home or get hospital care." That's just
incorrect.

2\. Episodes of diabetic worsening can cause a white count, particularly if
the patient is trending towards acidosis. The article calls this as "flaky
diagnosis," and says "this is the first the NP heard of it," implying that
this was untrue. It was not untrue. Though this certainly does sound like an
infection, I imagine the actual conversation went "can I immediately admit
this patient with this white count?" and the doc went, "this isn't that bad a
white count, part of it is probably from the diabetes, also, no, I don't do
admits from community, no."

3\. NP's are supposed to practice under physician supervision. "Still
concerned about Ms. Warren’s condition, Simon then spoke to Dr. Jan Baldwin,
her “collaborating physician” at the Essentia clinic." So, she did an end-run
around the normal admission process, and got bounced both for (a) possibly
over-stating the white count?, and (b) ...because the route for this patient
getting admitted is through the ED, not by calling _not her supervising
physician_. She then went to her actual supervising physician, who apparently
said the same thing about this patient. The article includes the line "but
they didn't examine the patient." Yes, because they relied on the NP to
furnish the physical exam details; they went to the EMR to check out all the
lab values and vitals (because if they didn't, there'd be no public suit; the
malpractice insurer would be running straight to a very nice settlement.) The
very-neutral and well-researched article refers to this fact as "amazing."
It's standard practice. (a) If you can't rely on an NP to convey the results
of a physical exam, they shouldn't be allowed to have anything resembling
independent practice rights. (b) you're legally allowed to rely on them to
convey physical exam, and (c) there is no statement that anything in the
physical exam is what changed the clinical picture here.

So, two independent physicians looked at this patient's labs and didn't see an
out-of-control infection - the only clinical counterpoint we're seeing is from
an NP who apparently didn't know about the "every med student knows about
this" fact that diabetes can drive a white count, and less controlled diabetes
drives it more.

I actually do think that there were a couple of fuck-ups here: (a) The NP
should have sent the patient to the ED if they were convinced this patient was
fucked up. Period.

(b) The NP should not have called the hospitalist directly. Period. It's a
red-herring to the entire event. The only question is "can I manage this
outpatient or do I send them to the ED?" not "can I manage this outpatient or
do I send them to inpatient where their work-up and treatment will be delayed
12-24 hours at a minimum, if inpatient would even take this patient bypassing
the ED, which they won't, so why the fuck am I even calling them?"

(c) Diabetic with a fever and a white count and out-of-control sugar can be
poorly controlled diabetes. Or an incipient DKA. Or septic. Or having a heart
attack. The supervising physician who directed outpatient management - not the
hospitalist - made the probably-wrong call by sending this patient home. They
should have directed to the patient to the ED. I can't say this more strongly
without seeing the actual medical record, but if malpractice happened, it
happened at this step. The "if" is because if the white count was only a
little up, and the NP said, "well, they don't _look_ septic," and the patient
reports poor compliance with their diabetes meds, ... well, it would be
reasonable to say, "eh, diabetes." I still would've sent to the ED, but this
isn't my jam, so I could be wrong.

~~~
arkades
Addendum:

I really have no words for how stupid this ruling is. It establishes that any
physician that has an opinion on a case, _whether or not they 've officially
been consulted and accepted the patient as one of theirs_, _whether or not
they 've actually got formal power over the patient's care_ is now liable for
the course of care.

Picture this scenario: NP stops a doc in the hallway and asks, "Can I give
this patient amoxicillin for their UTI?" Simple question, simple answer.

The physician cannot answer, because simply having been unofficially asked a
question about the proper course of care has now made them liable. Saying "I
can't speak to you" actually does not alleviate them of that liability, it's
just withholding care. And any answer creates liability, so they need to go do
a full consult on this patient, to at least offer a defensible response.

Who has the time to do a full evaluation of every patient someone is asked
about indirectly? And does a patient have to pay for a consult created by
someone asking a minor question?

So either the docs are twice as harried as they are now - which they don't
have the capacity for, so this is a false choice - or medical staff are no
longer allowed to ask doctors questions. Bonus points for all the involuntary
increase in healthcare spending.

My lawyer wife asks, what if it's couched as a hypothetical? Well, I ask, if
this went to trial would any jury believe that the physician really believed
they were being asked a hypothetical? No, she says. Well then that doesn't
help.

Congratulations, Minnesota. Once this makes its rounds among physicians,
you're going to have docs getting pissy and telling people _not to ask them
questions_ , because just the act of asking is creating liability. Never mind
just how much day-to-day care is lubricated by curbside consults and hallway
questions. Turning all of those into official consults... jeez.

I can't imagine anything more liable to slow down care and inflate costs
without meaningfully improving outcomes. That judge had no idea what they were
doing.

~~~
harshreality
I don't think it's nearly as dire as that (but I'm not a medical
professional).

Maybe this lawsuit shouldn't have gone this way, and the NP apparently
shouldn't have tried to avoid sending the patient to the ER, but it seems to
me the takeaway is a doctor shouldn't make a firm admit/non-admit decision
based on partial lab results. Refuse non-emergency admission based on
inability to properly evaluate the patient once it's clear the NP doesn't
agree with your opinion, and point the NP to the ER otherwise. Also point out
that if the patient in this case really did have a serious infection, avoiding
the ER would be bad and slow down essential treatment anyway, and it would
actually harm the patient for a non-ER doc to admit them.

Everyone agrees that there are lots of subtle things about a patient which a
medical professional can pick up on that are not clearly shown in lab results,
right? Wouldn't it have been obvious from the described phone conversation
that the nurse's spidey senses were telling them something? "Clearly we're
seeing different things; I don't feel comfortable admitting this patient
through this channel. If you think I'm missing something and this is an
infection, the ER is the right channel for that anyway."

I think there's plenty of blame to heap on the clinic, too. Does anyone think
the NP, after questioning the decision of both docs, just casually decided not
to send the patient to the ER?

The calculus was almost certainly: "two doctors told me I'm wrong, so I don't
have much personal liability here, and there may be negative career
consequences if I send this patient to the ER and I'm wrong."

~~~
arkades
> I don't think it's nearly as dire as that (but I'm not a medical
> professional).

Then you don't know how wetting-themselves-terrified most physicians are of
malpractice. It builds itself into how people practice on a daily basis. I'm
considered relatively "bold" among my peers in my inclination to practice what
I think best serves my patients rather than covering my ass, and even I'm
reading this as "if I lived in MN, I'd be leaving MN."

> Maybe this lawsuit shouldn't have gone this way, and the NP apparently
> shouldn't have tried to avoid sending the patient to the ER, but it seems to
> me the takeaway is a doctor shouldn't make a firm admit/non-admit decision
> based on partial lab results.

It's just an irrelevant discussion. It's like blaming the janitors for making
a non-admit decision. Emergency care goes through the ED, period, no
"decision" is involved in the process.

>and point the NP to the ER otherwise. Also point out that if the patient in
this case really did have a serious infection, avoiding the ER would be bad
and slow down essential treatment anyway, and it would actually harm the
patient for a non-ER doc to admit them.

It's really not a doc's place to explain to people "how ER's work," and "basic
clinical reasoning" (how and when to escalate care is clinical reasoning. It's
a big part of what med students learn in the second half of med school.) If
you explain that to people, you quickly become the massive asshole doc that
people talk shit about behind their back. If you do it to an NP, all the
nurses will be trying to eat your liver. As it is, he was only one of two docs
that day to explain to her that diabetic episodes cause white counts, so he
was already going to be having a tense exchange in which she didn't know basic
internal medicine and was having it explained to her by "an arrogant doctor."
Traditionally, responsibility for basic clinical reasoning sits solely with
the physician in charge of making the call. If NPs want to practice like
physicians, they can join us in taking full responsibility for the decisions
they make.

> Everyone agrees that there are lots of subtle things about a patient which a
> medical professional can pick up on that are not clearly shown in lab
> results, right? Wouldn't it have been obvious from the described phone
> conversation that the nurse's spidey senses were telling them something?

I want to be clear again: she is practicing independently. She's not a
subordinate reporting information that he is failing to take seriously enough.
She is, theoretically, a colleague getting a curbside. She gets his opinion,
and she can do with it what she wants. That's how consults work in all of
medicine.

Second, a conversation that opens with "doesn't understand how the ER works,"
and "doesn't understand white counts in diabetes" (I really can't stress how
absolutely fundamental, medicine 101 this is), doesn't lead to you thinking
"Gosh, I must be missing something, because she seems concerned." It leads to
you thinking, "This person is a fucking moron."

> I think there's plenty of blame to heap on the clinic, too. Does anyone
> think the NP, after questioning the decision of both docs, just casually
> decided not to send the patient to the ER?

I don't know if it was casual or not, but since it was completely her call
whether or not to do it, apparently "yes."

> The calculus was almost certainly: "two doctors told me I'm wrong, so I
> don't have much personal liability here, and there may be negative career
> consequences if I send this patient to the ER and I'm wrong."

You don't have negative career consequences for sending patients to the ED
anywhere I've seen. It's the universal CYA: worst case scenario, send them to
the ED, you can't be blamed. And of course she still has personal liability:
she's the clinician making the call (which is why she got sued and promptly
settled). If 30 doctors who _aren 't in charge of her_ tell her she's wrong,
it doesn't matter. The docs who shot her down weren't in charge of her. They
were just opinions, and don't shield her from anything.

(That said, a third doc has reviewed the medical records - granted, for the
defense - and justified the call the first two docs made. I'd point out the
criticisms of the suitor's expert witness, but they don't have one.)

~~~
harshreality
> how and when to escalate care is clinical reasoning. It's a big part of what
> med students learn in the second half of med school.

Which NP's don't have as much of, since they didn't go to (or at least didn't
complete) med school?

Assuming the court got it wrong and it should be 100% legally the NP's fault.
Why did she do what she did? I can't make sense of it in the absence of
external factors.

Why would she needle two docs about their diabetes diagnosis, obviously
disagreeing with them, and then not send the patient to the ER? If it was
clear to her that she shouldn't trust their opinions since she's ultimately
responsible, why wouldn't she send the patient to the ER just to be safe?
Whether or not she's incompetent for not knowing elevated white blood cell
count could be caused by diabetes, she didn't _miss_ anything; she clearly had
concerns, and they ended up being empirically correct (even if by luck). What
motivation would she have not to act on them?

Is sending a patient to the ER more trouble than trying to admit them through
other means? I have no idea, but I'm guessing it's unlikely. Would a clinic
nurse have to fill out any substantial paperwork, or merely tell the patient
to go to the ER and write that on their chart?

You say you've never seen it, but perhaps there was something wrong with the
clinic's policies, and there were incentives for her not to send too many
patients to the ER who end up not getting admitted?

What other explanations are there? If she wasn't concerned, why did she needle
the two doctors? If she was concerned, why didn't she send the patient to the
ER unless there were misaligned incentives or she didn't actually realize it
was her call? Maybe some of the details are buried in the out of court
settlement with the clinic?

~~~
arkades
>Which NP's don't have as much of, since they didn't go to (or complete) med
school?

This is a very politically sensitive question. I'll answer bluntly, because
yay for pseudonymity - no one will answer you this bluntly in real life
anymore.

The road to NP is a bachelors in nursing, being a nurse for a little bit
(increasing numbers of programs don't require nursing time, so as to be more
competitive with PA programs) followed by some (fairly easy) grad courses,
followed by being an NP. In some states this requires supervised practice; in
others, it leads to independent practice. As an aside, "supervised practice"
isn't - hospitals hire NPs to be cheap manpower that does an end-run around
physicians, so they use them to their maximum and, in effect, they end up
unsupervised.

Nursing is not "doctoring light," it is its own thing (keeping an eye on
patients, administering medication, taking vitals, measuring ins and outs,
changing dressings) so while it provides exposure to the clinic, it does not
provide exposure to clinical reasoning. You pick up things like "CTPA to catch
a pulmonary embolism," basically enough to do monkey-see monkey-do medicine,
but again ... not to reason. So you miss exceptions, you miss uncommon things,
you miss subtle things, you miss contingencies. Honestly, docs that go to
malignant residencies (residencies that just use trainee physicians as cheap
bodies rather than trainees) end up something similar.

NP courses do not make up this difference even a little bit. Columbia's school
of nursing is a big proponent of NPs being the equivalent of physicians. They
attempted to administer the first of three physician licensing exams to their
NP students and the pass rate was less than half that of the worst med schools
in the country.

An NP is basically an under-educated medical student. And a medical student is
someone too ignorant to be allowed near a patient - that's what residency
training is for.

PAs are substantively similar. Their coursework is a lot more similar to med
student coursework, but they skip out on the back half of med school. Some PA
programs are three years and cover at least some clinical reasoning; some are
just a bit over two years, and don't cover any at all. They also don't do
residencies.

So, basically: if you wouldn't want a freshly graduated medical student on his
first day of residency treating you, you don't ever want an NP or PA being in
charge of your care.

And they often are. Hospitals not-infrequently hire a doctor to act as a
malpractice license, and then they stock up so many PAs under the doc that the
doc never actually has the chance to supervise.

In practice, I do prefer PAs. For social and political reasons, NPs often end
up working closely with other nurses and NPs, and PAs tend to end up working
more with the physicians (despite, at least fresh out of training, the two
being completely interchangeable). The NPs end up spending their time with
people _that can 't teach them any clinical reasoning_, whereas the PAs get
taught alongside the med students and residents. Even though the PAs usually
don't spend an extra 40 hours a week studying like a med student or cramming
like a resident, they at least pick up some stuff during their shifts.

It's not the med school that really makes the difference. It's the residency.
Med school is what gives physicians the ground level knowledgebase to go spend
four or more years working 80+ hours a week (plus studying) intensively
training. Mid-levels have less training, it's true, but the key difference is
that they have no residency. Even hours worked are apples-to-oranges: an NP
shift is about knocking out paperwork, a first year resident shift is about
seeing all the patients and knowing all the things because your attendings
will constantly be hounding you about them and you'd better know your assitis
from your elbowitis, you'll be writing treatment plans and they'll be ripping
them to pieces (or, hopefully, not).

The other thing is just personality. The people who are driven to study their
asses off day-in and day-out for a decade are not the same people who get a
bachelors in nursing and go take blood pressures and hand out pills. It's an
enormously different pool of people. NP becomes about getting independence and
a pay-raise, but it draws from the average nurse crowd.

Bottom line: when physicians and mid-levels and healthcare executives get
sick, they go to physicians. That people who aren't insiders get mid-levels
foisted on them is a crime against the public. "You don't know any better, and
we don't have a better way of making our profit margins, so you get people who
aren't educated enough, aren't trained enough, and aren't supervised or held
accountable to look after you. Of course, if you've got money and you know the
system, you can have a real doctor."

(There are some mid-levels I love. They tend to be the ones who have worked in
one little niche forever, and take their shit super seriously, and go out of
their way to study and read like they're physicians. I most often see this in
critical care PAs. I fucking __love __them.)

No one in healthcare is allowed to say this anymore. Hospitals need mid-levels
in order to make profit margins. Insurers want you seeing mid-levels (they
actually advanced the term 'providers' to muddy the water between physicians
and non-physicians) in order to minimize healthcare costs. Any doc who says
any of this out loud is "not a team player" (read: getting in the way of our
minimizing our expenses).

I'm not an old-school doc, either, talking out of nostalgia and bias. I'm a
second careerist who came to medicine after working at the executive level in
health insurance, often working on cooperative agreements with large physician
groups. I've seen this from the other side.

As for clinic incentives: I don't know. Any incentives against sending the
patient to the ED would apply even moreso against sending them to admit to
another hospital's inpatient service, so that doesn't make sense. Especially
since the other hospital was in another hospital system, so it's not like her
hospital would get dinged for the cost of a readmission or something. And, as
you say, if she wasn't concerned, why bug two doctors? If she was concerned,
why not send them to the ER?

My suspicion is this: he's a shit clinician. People who can't reason about
what they're seeing don't tend to stick by their guns, because they're already
making decisions by gut and habit. So, he saw a sick patient and got concerned
and made some calls. He wasn't taken too seriously because the labwork was
probably not too dire and/or he didn't report all the relevant values and/or
because he came off like an idiot, so the "just take my word for it, this
patient looks like shit" line that I'll buy from someone whose clinical
judgement I trust got ignored. So, two docs told him the patient didn't sound
like they needed inpatient care. And because they learned medicine by monkey-
see monkey-do to begin with, and they didn't have enough clinical reasoning to
make a cogent argument _to themselves_ as to why they'd ignore the monkeys,
went against their own judgement.

It's easy to overpower someone's judgement if they don't have judgement to
begin with, just habit and gut feeling.

~~~
nkurz
Stellar comment. Thanks for taking the time (and risk) to write it.

------
beat
"Will no one rid me of this meddlesome priest?"

Plausible deniability for authority figures is and has always been a thing.

------
totaldude87
Two parts to the story..

>However, rather than send Warren straight to the ER of the Fairview Range
Medical Center, Simon called the hospital “to seek Warren’s admission.” (p. 3)
Simon’s call was routed to Dr. Richard Dinter, one of three hospitalists on
call that day. --> Why call when you know something is off?

After hearing Simon’s summary of Warren’s symptoms, Dr. Dinter declared her
symptoms were due to “a diabetes that’s out of control” (as the Court of
Appeals put it) and recommended that Simon send her home with some diabetes
medication, and schedule a follow-up visit for next Monday, three days later
--> Do this and get sued every time. The basic thing for a doctor to do is to
check whats wrong with the patient and 9 out of 10 times, you need the patient
in place to examine and declare..

------
tomohawk
Hospitals have been known to ban certain people and refuse to treat them. This
was not too much of a problem, but now that we have medicine 2.0, hospitals
are now part of systems, and so a ban often extends to all hospitals in the
system. For example Mayo clinic controls a large number of hospitals in a
geographic area, so getting care if banned could be practically impossible.
Here's an example of a dispute that led to a banning:

[https://www.mprnews.org/story/2018/08/15/mayo-disputes-
medic...](https://www.mprnews.org/story/2018/08/15/mayo-disputes-medical-
kidnapping-cnn-story)

It's not clear what other remedy than a lawsuit would work in such a
situation.

Hopefully medicine 3.0 will be better.

------
ineedasername
First, an important distinction: this decision did not actually find
culpability or liability, it merely affirmed a right to sue.

That aside, this seems a reasonable decision. A nurse practitioner advocated
for hospital admission. They were overruled in the basis of medical analysis
performed by an admiting doctor. The tenuous grounds for this denial are
almost irrelevant in this decision (but certainly won't be in the lawsuit to
come) because, even if it wasn't a formal doctor-patient relationship, the
doctor rendered a medical judgement that had a direct impact of the care the
patient received.

~~~
Gibbon1
> The tenuous grounds for this denial are almost irrelevant in this decision

Far as I understand dismissals are the result of the plaintiff having no case
even if the 'facts' alleged are 'true'. So yeah the court isn't making any
ruling at all on the malpractice allegations.

------
gonzoflip
I was surprised to see the names in this story because I went to elementary
school with Dr. Dinter's daughter. Hibbing is not a large town and I feel for
everyone involved. This is a very sad story.

------
atourgates
The other (IMO very critical) factors this doesn't address is the relationship
between midlevel providers and MDs, and the shift towards away from primary-
care providers and specialists treating their patients during hospitalization
to hospitalists treating patients during hospitalization.

30 years ago, the patient likely would have seen their family doctor, who
would have caught the symptoms of sepsis (just like the midlevel nurse
practitioner did), and then directly admitted the patient into the hospital
themselves, and cared for the patient during their admission.

I grew up with a father who was a primary care physician in a rural community.
If one of his patients required admission to the local hospital, he'd admit
them directly. It was normal that on Saturday and Sunday mornings,
then-6-year-old-me would tag along as he rounded through his patients in the
hospital. He'd manage their care, talk with them about their symptoms and
progress, and make whatever changes to their orders that were necessary.

If he was out of town, he'd hand them off to one of his partners, and return
the favor when they were out of town.

Now, that model is rare for a couple reasons. First, because primary care
physicians are overworked, and don't relish the extra (often unpaid or severly
underpaid) responsibility of caring for patients while they're hospitalized.

Second, because primary care physicians are now being replaced with midlevel
providers, like the nurse practitioner in this case. Unlike physicians,
midlevels often either don't have admission privileges (in some states), or
have admission priveledges that require that the patient be under the care of
a physician after admission (in other states).

The result is the creation of a relatively new specialty in medicine, the
hospitalist, who is responsible for the care of admitted patients while there
in the hospital.

There's lots of evidence to show that this is generally a good thing for
patient care, and definitely for quality of life for primary care providers.
There's a physician on-duty 24/7/365 to care for hospitalized patients who
specializes in care in that setting. But, as this case points out, it's not a
system that's immune from flaws.

There's also an imbalance of power and liability created by the introduction
of a midlevel provider.

While midlevel providers are an important and necessary part of providing
primary care in our current medical system (though, in my personal opinion we
should focus much more than we do on increasing our capacity for training
physicians), their introduction does create a power and liability imbalance in
our medical system.

I expect that if the patient had been seen by an MD, who called the
hospitalist and said "this patient is septic and needs to be admitted", the
hospitalist would have been more likely to take their recommendation at face
value. They would be getting a recommendation from a peer, with the same level
of education and training as them, instead of a provider with less training
and experience.

Additionally, in cases like this, physicians carry an outsized responsibility
for liability compared to midlevel providers.

I don't bring any of this up to excuse the hospitalist invoved in this case.
But it seems to me that this is a very clear case brought about by recent
trends in the way we practice medicine in this country, that deserves further
examination along those lines.

------
xrd
The nurse practitioner should have sent the patient to the ER. This result is
reasonable. They made a serious mistake in sending the patient away.

------
edaemon
For what it's worth, the submission title ("Minnesota court decision means
doctors can be sued by patients they don't see") does not match the article's
title, nor does it really match its argument.

From the article:

>The court concluded that Justin Warren did not have to prove that his mother
was in a doctor-patient relationship with Dinter in order to proceed to trial.
This was unquestionably the correct decision.

~~~
dang
The article title is baity, so the submitter correctly changed it in
accordance with the site guidelines:
[https://news.ycombinator.com/newsguidelines.html](https://news.ycombinator.com/newsguidelines.html).

I'm not clear on how the title doesn't match the article? It's consistent with
language in the opening paragraph. I changed "see" to "treat", though, since
that's more specific.

~~~
edaemon
I don't think the title here needs to be changed significantly, I was just
pointing out that it implies something different from the article contents.

The title paints the court's decision as if it's about treatment while the
decision is actually about assessment. Going by the title one could think
anyone could sue a doctor despite never interacting with them, while the
article explains that this decision allows you to sue if you are actively
refused treatment based on a doctor's assessment (the implication being that
the doctor was wrong when they refused to admit/treat you).

Perhaps a better title would be something like "Minnesota court decision means
doctors can be sued by patients they refuse to treat".

------
Glyptodon
I think the submitted headline is misleading. It's more accurate to say
"doctors can be held accountable for medical decisions they make without even
seeing a patient."

~~~
Gibbon1
It's misleading because the doctor did look at the blood test results and the
patients history and then made a decision to refuse appropriate care.

What I think contrary to what a lot of doctors believe[1] the license comes
with a large amount of duty.

[1] And definitely what the suits that run hospital chains believe.

------
toomuchtodo
Mods: Original title of piece is "Why Did Susan Warren Die?". Can we get it
updated to be less sensational?

TLDR: A “curbside consult" establishes a physician-patient relationship.

EDIT: Mods have spoken. Can't delete due to replies, feel free to ignore.

~~~
SiempreViernes
I feel the story told by article deserves a fairly sensational title!

I do agree that the current title is sensationalizing the wrong aspect though,
something like "Minnesota doctors routinely ignore diagnosed treatment" would
more apt.

~~~
toomuchtodo
I agree.

------
yeahitslikethat
Perhaps now we can start to allow patients to treat themselves? why should I
need a doctor's permission to but insulin I know for a fact I need to live?

~~~
ceejayoz
> Perhaps now we can start to allow patients to treat themselves?

You already can. You're welcome to self-administer tylenol, bandage a wound,
etc.

When you start getting into more complicated conditions, we like to have a
professional in the mix, as laypeople have a tendency to do things like want
antibiotics for a cold, essential oils for cancer, and think vaccines cause
autism.

