Hacker News new | past | comments | ask | show | jobs | submit login
Minnesota court decision means doctors can be sued by patients they don't treat (thedeductible.com)
123 points by scripthacker 3 months ago | hide | past | web | favorite | 130 comments



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?


Spotting first order effects is relatively easy. It's not terribly hard to examine a system and point out some flaw or inefficiency. What's hard is coming up with a better solution that doesn't cost more in unintended consequences.

One unintended consequence of our malpractice law in the US is a tremendous amount of time and money spent by physicians purely to avoid lawsuits. Obviously medical malpractice is real, and should exist. But there are costs associated with ever increasing the scope and ability to medical practitioners to be sued.


You can look at the Dartmouth Atlas of Health Care and see the costs of medical care, and medical malpractice reform just doesn't seem to have any effect on medical care costs.

https://www.dartmouthatlas.org/interactive-apps/medicare-rei... Price-adjusted total Medicare costs per enrollee, that belt of bright red along the Texas coast? Texas capped non-economic medical malpractice damages at 250,000, and still they have some of the highest Medicare spending in the country. Since this data is price adjusted this isn't so much a measure of how expensive a treatment is in the hospital, but of how many events a patient undergoes in a year. So Texas doctors continue to have very high utilization rates, even after malpractice reform. So it wasn't just "defensive medicine" that was driving that, but something else.


> purely to avoid lawsuits.

That time has real benefits. Medicine has a huge issue where people value their own lives vastly more than doctors do. Sure, 99+% of the time X is not the issue, but it’s rational to spend quite a bit to avoid fairly low odds of death.

For example, one of the US’s top killers is pulmonary embolism which presents as any number of other issues. Doctors not taking such symptoms seriously kills. “Pulmonary embolism is a common complication of hospitalization and contrib- utes to 5 to 10 percent of deaths in hospitalized patients.” “less than half of patients who die of pulmonary embolism were diagnosed with the problem prior to death“


> it’s rational to spend quite a bit to avoid fairly low odds of death

Then it’s not rational to be outraged when one finds out that healthcare costs are high.


Plenty of other things boost the US’s heathcare costs to get upset about. Texas capped malpractice liability and that seemed to have zero impact on heathcare costs.


There seems to be a presumption that "to avoid lawsuits" is a pure motivation. I don't think that it is.

Some of our laws actually come from just causes, such as protection patients from incompetence, malfeasance, etc. of their physicians, nurses, hospitalers, and insurance companies. A lawsuit is the necessary enforcement mechanism of such protections. Lawsuits can serve good purposes.


Yeah, but I'd argue this really doesn't increase the scope. From my reading of the article, which is incomplete, we need a few more bits of info to make a call here, but I'm pretty sure these two organizations were operating in a grey area with respect to consults and referrals in this case. Personally, I think the policies they had, (maybe still have?), in place put certain care providers at enormous risk. But it really is on the doctors to make sure they are doing everything right. The greyness here, again, only my opinion, but I think the greyness led to confusion. But, yeah, confused or not, the doctors are on the hook for it.


Are there any similar prior cases where similar things have happened? Consults like this seem incredibly common, so it's hard to believe that this is the first one where the consult was wrong and it had consequences, maybe this is the first one where they thought to file a malpractice suit?

It seems like this suit may have a chilling effect where Doctors won't even be willing to get on the phone for consults, given that they're taking on extra liability by doing so. Do you think that's a risk here?


Mmmm, I'm gonna play Devil's Advocate here and ask what would be necessarily wrong with a physician actually examining patients prior to making an admit decision? (Particularly given the fact that said physician really is acting more like he/she got a referral than a consult request.)

You can do consults, but they have to be consults. I think what happened here is that these two organizations are playing fast and loose with the essential distinction between a consult and a referral. The decision to admit has to come from this physician, so really, it was not a consult. Because the original physician had little to no power. (I'm almost ready to argue that the original physician had essentially no power over the decision, but I'd need a bit more information to make that call.)

EDIT:

Friend just pointed out that some people may not understand the difference between a consult and a referral. Basically, in laymen's terms, a referral is a request that you assume care of the patient. Whereas a consult is a really just a request for, let's call it, "advice", for lack of a better term. Kind of like, "Hey man, can you give me a second opinion on this?" But the patient is still under your care. You still make the final calls on things. As opposed to, "Woah, dude... you're gonna have to handle this one, I'm no cardiologist, so I'm not even gonna try to do a cath, much less a PCI."


This wasn’t really a consult. This was the admitting doc at the hospital overriding a doc who wanted to admit.

He made a decision, contrary to the examining doc’s opinion, that was final and without some crazy new information, asinine.


Not a risk, a certainty. Until this ruling, not having a physician-patient relationship was an absolute safe harbor against professional liability. It was understood that the clinician seeing the patient had the ultimate responsibility. Now we can program Alexa to say "Send the patient to the ER" and save ourselves a great deal of time.


The ruling is that when you make a medical decision about a patient you have a physician/patient relationship. You no longer get to say “I was not present so that fact that I provided incorrect treatment instructions is irrelevant”.

If the doctors involved weren’t the ones responsible for allowing a patient to be transferred to the hospital maybe you could more reasonably claim you were giving advice.

But by denying the transfer to the hospital and misdiagnosing them, they were making (and effectively enforcing) those decisions.


If the doc had merely advised, instead of overriding the examine docs opinion, there wouldn’t even be a case because this woman would still be alive. Looks like doctors are free to consult, but are on the hook when they make an overriding decision.


> Now we can program Alexa to say...

I don't really understand your point here I'm afraid. The courts won't give a shit about the Alexa bit, no?


Sorry for being obtuse. The point is that it doesn't take a physician to tell EVERY clinician calling with a patient for possible admission to send them to the ER. If the hospitalist is going to be liable for advice given on patients never seen, he can only err on the side of maximum treatment, since he hasn't had the benefit of seeing the patient and can't necessarily rely on the referring clinician's assessment.


How do other countries handle this? I know that the US is unusually litigation focused when it comes to remediating malpractice.


Largely because you need to cover follow on medical bills incurred by malpractice, coupled with a failure to adequately restrict the harm from malpractice (ndas on settlements for instance work to cover up patterns of malpractice)


And because individuals pay, instead of the government. So when individuals have a problem, they're left to prosecute (sue) a doctor on their own instead of having a whole single-payer system behind them.


yup, which also necessarily needs to cover both the medical care and the legal fees. And interest on loans needed for medical care, etc, etc


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).


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?


> 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.

Let's say a doctor screws up and you end up having to do an extremely expensive procedure to fix that. Wouldn't winning a malpractice lawsuit allow you to cover those expenses? That's just one of the ways medical malpractice lawsuits make sense.

> 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?

Honest question: what do you think is grounds for a medical malpractice lawsuit these days? As far as I've been able to figure out, it seems that there has to be some kind of relatively serious, provable negligence involved.

> 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?

I'm having a hard time addressing that idea, because your way of thinking is foreign to me. Look, we are talking about things that seriously screw up people's lives or even end them. To me, your idea of self-regulated medical profession sounds like proposing that, instead of suing the truck driver who ran over your kid, you should let his employer deal with him.

> In the software industry there are no malpractice suits.

Medicine and software industry are not the same thing.

> random people who happened to sweet-talk the court into perceiving "malpractice" vs ordinary mistakes

Well, there it is. You seem to believe that there is no such thing as malpractice, it's all just "ordinary mistakes" that just might end up killing people or screwing up their health permanently.


> Any lawsuit win against them doesn't make much personal financial difference, ...

Just ~like vehicle insurance, the rate goes up with more paid claims.


Malpractice is a form of tort law pertinent to 'professionals' https://en.wikipedia.org/wiki/Malpractice IIRC the acm would like to make programming a 'profession' along the lines of the professions open to malpractice suits and if that happened programmers could also be sued for malpractice.


Have you noticed very few doctors run private practices anymore? The excess litigation and cost of malpractice insurance is so high they can't afford it.

That's why they are all grouping, and usually even just under a hospital. It takes a huge group to be able to be able to get the leverage on insurance.


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.


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.


Also I'd like to point out that the headline is, at best, highly misleading -- the doctor didn't see the patient, no, but that's the problem not an exculpatory factor. This isn't a random doctor being sued by a random patient it's a doctor whose medical judgement arguably led to the patient's death.


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.


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.


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.


> 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?

While it doesn't change the overall point much, she didn't take the opinion of an MD that way; after getting the response from yhe hospitalist, she attempted to bypass the refusal by taking the case to a physician at her own clinic who had admitting privileges at the hospital, but who reached the same conclusion as the hospitalist had.


The nurse was sued as well -- but I agree, she's just as liable as the doctor.


And to better assert the independence of NPs.

At least with this lawsuit and settlement, NPs may be more legally motivated to do the right thing.


The NP in this story is one of the people that fucked up. A, because she should have sent them to the ED. B, because hospitalists have nothing to do with the ED, and she was trying to /bypass/ the ED. C, because she didn't need her supervising physician's permission to send the patient to the ED. D, just for kicks, diabetes absolutely causes a white count bump, especially during uncontrolled episodes, with the degree of one correlating to the other - something every med student is expected to know, and it's ridiculous that the NP didn't.

"Legally motivated to do the right thing"? She's significantly more guilty than the hospitalist, who is a red-herring in this entire discussion ("I'm not the ED attending. Send her to the ED. The ED attending decides who gets admitted for non-elective admissions. Also, she might need urgent care, so she shouldn't wait the 12-24 hours hold-up that would occur if I admitted her directly." would have been the response of any hospitalist I've worked with) and yet he's vulnerable to a malpractice suit, and the NP is not. What legal motivation?


> The NP in this story is one of the people that fucked up.

And was sued for it and presumably (the case with regard to her was settled on undisclosed terms) forced to pay. But she fucked up by passively accepting the judgement of the MDs involved, so the upthread comment that this case might encourage (or “legally motivate”) NPs to act more independently is reinforced rather than negated by the fact that the NP fucked up and was held to account here.

> and yet he's vulnerable to a malpractice suit, and the NP is not.

You mean “he got out of even having to face malpractice liability at the trial and first appellate level, while the NP was forced to settle before even reaching trial.”


Not a medical professional, but if you're positive that the patient is going to be admitted then bypassing the ER may make a lot of financial sense for the patient. Going to the ER is expensive, so moving directly to admitting cuts a lot of cost.

If you don't believe me and are in the US, call your insurance company and ask "what's my out of pocket if I'm admitted to the hospital for 1 night going through the ER vs going through an urgent care center?" There's a pretty good chance the ER route will be at least $1000 higher.


Urgent Care centers do not have hospital privileges and cannot admit to the hospital. If they think you need hospitalization, they send you to the ER.

Bypassing the ER is a good way to have your insurer try and deny coverage, since you’re giving them a plausible case that it wasn’t an emergency.


Urgent Care centers do not have hospital privileges and cannot admit to the hospital.

That surprises me since (at least in my area of the Chicago suburbs) all of the urgent care centers I've seen are associated with hospitals or hospital networks. I have no experience with their admitting capabilities though, having never actually used one.


I dunno how independently NPs can practise in MN. Sometimes they’re always under an MD and anything that happens is that MD’s responsibility. This can be relatively more true if they’re an employee vs. a contractor (at least where I live, dunno about MN).

The NP settled their case out-of-court. So they were held liable, and we don’t know how much.

The consulted MD felt like fighting it in court, and lost.

That’s what makes this case a bit unusual because something bad happened and one person involved thought they weren’t accountable.


It depends on how many hours they've practiced. Initially, under a physician. Eventually, completely independent. The article describes the second doc as a "collaborating physician," but I went to the underlying court documents and, no, they were just a second informal consult - this NP was practicing independently.

The case isn't that unusual. Malpractice lawyers name everyone even tangentially related to a case, because malpractice insurance has a cap on payouts and you'll never go to court and win more than that cap, so you want to pull in as many people's policies as possible. Everyone that wasn't directly involved in the care of the patient gets their names dropped from the suit pretty quickly. Normally.

So, it's not unusual that the person that actually fucked up (the NP) settled, and someone not part of the patient's care said screw that (the MD).

Docs also don't choose for themselves whether they fight it in court. The malpractice insurer does. If you go against the insurer's wishes, you basically give up your malpractice coverage. In this case, I'm guessing that the fact that this is a slam-dunk "get thrown out of court" situation is why they didn't settle, as they do the vast majority of the time, regardless of the underlying merits of the case. Usually settling is cheaper than litigating, but a single "get this thrown out" motion is cheaper than settling.

The unusual thing here is just that MN is somewhat unique as one of the few states that doesn't explicitly require a doctor-patient relationship for its malpractice suits, so instead of getting thrown out, the case is going ahead.


Umm, he hasn't lost, at least not yet.

What he lost was the appeal of the dismissal of the case. The MN Supreme Court ruling merely means the case will go to trial. He may yet prevail, but from what I read in the article, seems to me that it's unlikely he will prevail.

Edit: spelling


I am sure they dream of AI diagnosis. It can be optimized for profit and any negative effects can be blamed on the AI.


It's more the other way around, at least in a US context. Concern of the impact of AI/physician disagreement is a problem from a malpractice point of view. Physicians in the US have a huge amount of professional leeway - hence the expansion of off-label use - but this is counterbalanced by a large amount of professional responsibility/liability.


I don't want to spam the thread by posting my comment all over it, so I'll ask you to read it downthread. The article highly mis-represents appropriate and routine procedure; the statement that the hospitalist here had the "power to decide on treatment and admission" is factually incorrect, though it's an incorrect impression the article very much tried to leave you with.


> they also should not have stated an opinion without seeing the patient.

Doesn't that mean that the doctors choices basically boil down to 1) see every patient that you get a phone call about or 2) don't take phone calls?

Given that I don't think 1 will scale very far it seems like most doctors will have to take option 2, I'm not sure if we're better off in a world where this type of consultation can't happen anymore for fear of liability.


it's not either or, there's option 3 "I can't form an opinion over the phone, if your medic thinks this can't wait for standard admittance channels I kindly defer you to the emergency services." and likely others.


Unfortunately, it's more complex than that. I'm a hospitalist at a pair of community hospitals that don't have some services (cardiology, vascular surgery, neurosurgery, ophtho, etc). I'm used to calling the specialist at our associated academic center when a possible acute problem related to those specialities may be happening. If those specialists now refuse to do "curbside" phone consults because they can't see the patient and now can get sued, these patients are in a bad position. The tertiery hospitals here are constantly full and I can't transfer patients that don't have immediate true emergencies.

This opinion is a major loss for patients. And I also used to "decline" direct admissions based on phone consults, telling outpatient AP/NPs what I thought would be a reasonable course of action and follow-up. Will simply say "sorry" on the phone now and tell them to send the patient to the ED, where the costs are very high. This will simply jack up the cost for everyone else.

Not saying the MD in the news article had a reasonable opinion. But spend a single day with me in our busy hospital, see just how tricky this profession is, and you might be convinced that I need more legal protection, not less.


In the event a primary care/urgent care doc disagrees with a hospitalist on the need for admission, why is sending them to the ED the right move? I was under the impression the ED is mostly for triage, and it seems like patients in this situation have already been triaged. It also seems like the sort of disagreement about the need for admission between urgent care and hospitalist is also going to happen sometimes between ED docs and hospitalists. How do those disputes get resolved?


I don't know how it works in US law, but it reminded me exactly of the English tort law concept of “duty of care”, which can exist between two people even without direct contact.


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.


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.


> 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.


The patient could have been admitted over the objection of the hospitalist by going to the emergency room and being admitted after evaluation there. This is how most patients are admitted.


> Dinter also implied that it would be pointless to admit the patient. But does that mean he _refused_ to admit her?

He said it in the context of someone explicitly asking him to admit a patient, of course it's a refusal! The most commons way to refuse to answer questions likewise doesn't explicitly involve shouting "I refuse" loudly.


Let's agree that a reasonable person would see that as a refusal.

In fact, let's make the refusal even more explicit.

Let's suppose that he flat-out said, "I don't think she needs emergency care, and if you send this patient to the ER, I will refuse to treat her."

Even so ... isn't it ultimately on the NP -- who seemed to grasp that he was blowing her off -- to either get a second opinion or (ideally) use her own medical training to determine that the patient really should go to the ER, no matter what he says, knowing that he can't actually refuse to treat her?

Stating that you intend not to do something, after all, is not always the same as actually refusing to do it.

That's not the most compelling argument, I know.

But I do worry about the broader implications of this ruling. Should physicians fear malpractice claims arising out of consultations with colleagues? In what cases can you feel free to give your opinion "off the record," with the understanding that the person who has consulted you will bear ultimate responsibility for the treatment they are providing?


> Still concerned about Ms. Warren’s condition, Simon then spoke to Dr. Jan Baldwin, her “collaborating physician” at the Essentia clinic. Amazingly, Baldwin, who also did not examine Warren, agreed with Dinter – Warren was suffering from out-of-control diabetes. (Neither court opinion indicates whether Warren had been previously diagnosed with diabetes.) At that point, Simon relented.

Based on my reading of that block from the article, she did get a second opinion. Once you've got two more credentialed professionals agreeing on something, it's a lot harder to justify going against their opinion.


> isn't it ultimately on the NP

No, because we don’t live in a world where only one person has to be responsible for every outcome.

Multiple people can share responsibility (and legal liability) for an outcome. In this case, the NP may bear some responsibility for the reasons you outlined. In fact the NP and her organization were sued and settled out of court already:

> At some point prior to that date, Justin Warren “sued Essentia Health for the alleged malpractice of its employees, Simon and Baldwin.” (p. 6) That case was settled out of court.

So, the NP may bear some responsibility, but there’s no reason why that should be the end of the investigation as to who else may bear some responsibility.


I think you're setting this up as a "just following orders" argument on the part of the NP, which justifiably should be shot down. But this isn't just her following orders, it's her asking for an opinion on something outside of her knowledge. Just because she had a gut feeling that he was wrong doesn't make her culpable. _Nurses should accept the opinions of doctors in regard to diagnoses because the doctors have specifically trained for this to a much greater extent than nurse practitioners._


It seems to me that if NPs are incapable of making (at least some) correct diagnoses and must defer to the expertise of a supervising doctor, then they cannot also be responsible for the doctor being incorrect.

Either they are trained well enough to make the decision on their own (which would mean the NP shouldn't need permission for this patient to be admitted) or the doctor is actually the person who is responsible for the patient's well-being.


I think the "curbside consult" defense is dubious, since, as far as I understood from the article, Fairview is the go-to hospital for residents of the plaintiff's area.

I agree with you on the second part. I wonder if there is actually a clear chain of responsibility in patient->clinic->hospital relationship.


"I, a doctor in a position of authority don't think that it would be valuable to admit this patient. But please Nurse who I have a semi-managerial relationship with, feel free to admit this patient if you think it would be valuable."


>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.


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!


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).


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.


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.


Asssuming the article is accurate, I think you're mis-characterizing what happened here. Simon wasn't calling a colleague for a second opinion before making a decision; she decided Warren needed to be admitted, called a senior hospitalist to expedite that admission, and was clearly and repeatedly refused.

The OP's title "doctors can be sued by patients they don't treat" is not accurate. A better one might be "doctors can be sued by patients they refuse to allow treatment."


This situation happens in EDs as well. For example: ED attending thinks admission is warranted but patient does not meet criteria (“please come see the patient because he/she looks worse than labs suggest”). This is why the ED exists and the correct move here should have been for the NP to send the patient to the ED for evaluation instead of relying on the opinion of an MD over the phone. The physician at the hospital should have suggested this as well—but to think that the MD is culpable for malpractice without laying eyes on the patient is lunacy.


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.


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?


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


The hospitalist is acting as the “gatekeeper” to admission here, so they decide if the hospital will take the patient or not. That doesn’t stop the NP from shipping the patient straight to the hospital’s ER. By federal law, emergency rooms must see every patient who comes in their doors.


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.


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.


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


From what I know about hospitals the NP is supposed to defer to the doctors.


I think there’s big variation state-by-state in terms of NP independence.


The NP did the right thing in a sense though - she went up the chain of command. The person up the chain, however, did the wrong thing.

edit to add: possibly the NP went up the chain of command precisely because the doctors there wanted veto power on hospital admissions. they didn't want pesky underlings getting in the way of whatever motivated their decisions.


Yeah, from what I have seen an NP overruling a doctor is a big No, No.


Once a doctor says something the nurse can't really override it.

Once two doctors say something.


Direct admits are falling out of favor, this case is likely to propagate that trend. The NP absolutely should have sent the patient to the ER. That fact doesn’t absolve the hospitalist but it’s worth noting.


I have been admitted 3 times this year without an ER visit. The other two times I was admitted via the ER but that was basically to speed up the process and getting priority to a room and bed.

I have an appointment tomorrow and as usual will be taking a bag, I'm expecting a 50/50 chance of being directly admitted or going home.


They probably should be more common. The ER is expensive and there are plenty of cases where admitting is obvious.


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.


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).


It's usually the courts based on expert testimony that gets people admitted into a hospital against their wishes.


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/

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.


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.


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.


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.


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.


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."


> 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.)


> 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?


>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.


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


Thanks for your comments. They're very enlightening.

So your thesis is that people should see real doctors for anything that might be serious. Fair enough. But some serious things present as possibly non-serious things that a clinic NP should handle with outpatient treatment, right? Including a case like this that might be easily treatable diabetes symptoms, or might be a serious infection that will kill the patient in 24 hrs? For clarity, this was not just an unusual lab value or two; the appeals court decision says the patient's initial symptoms were abdominal pain and fever [1].

Here's the point, I think: The NP, with her limited medical training, wasn't sure which side of the line this fell on. Two doctors told the NP that they thought the patient's symptoms were caused by diabetes, and by not taking action or encouraging her to send the patient to the ER, both doctors implied that it should be handled outpatient, and not involve a real doctor.

From the decision:

> Simon says that Dinter told her that Warren did not need to be admitted to the hospital. Dinter disagrees, saying that he responded “to what end[?]” to a question as to whether Warren should be admitted.

As you point out, nurses and NPs do not have a doctor's training. Suppose you were a GP or hospitalist and had a patient call you directly for some reason and you listened long enough to hear they had abdominal pain and fever and (modestly) elevated WBC. Would you tell them it's probably caused by diabetes, even if that's what you think? I doubt it. You wouldn't admit them yourself even if you could, right? But you'd tell them if they felt it was serious to get the hell to an ER and let them evaluate it, right? Given your view on lack of training of NPs, why treat them any differently than patients?

It's beside the point that the NP probably should have ignored the hospitalist's attempt at gaslighting ("to what end?") and sent the patient to the ER anyway. If doctors agree that NPs are not competent to be diagnosing as they currently do, then why discuss a patient's diagnosis (for the purposes of admission) with them as if they're a doctor and can competently make their own judgments? Remember this is all in the stage where the patient doesn't really have a doctor yet.

On reflection, I guess it's possible this is a case where competent doctors would genuinely think, because of details beyond what's reported, that it was diabetes... until it was too late. Maybe any other nurse would have thought so too, and not pursued trying to get the patient admitted at all. Maybe this was a statistically unlikely "lucky" (in the sense of being correct, in hindsight) gut feeling this NP had, which led to disagreement and opened the door for a juicy settlement? And perhaps this is all pointless, holding doctors and medical networks, as well as the nurse herself, responsible for a nurse's lucky guess that wasn't followed through on?

To hopefully quell some of your fears about the state of practicing medicine now in MN, let me quote:

> Our decision today should not be misinterpreted as being about informal advice from one medical professional to another. This case is about a formal medical decision— whether a patient would have access to hospital care—made by a hospital employee pursuant to hospital protocol. We decide only that hospitalists, when they make such hospital admission decisions, have a duty to abide by the applicable standard of care.

[1] for reference, appeals court decision: https://mn.gov/law-library-stat/archive/ctapun/2018/OPa17055...


You are the only person making sense in this thread. Michael Crichton was right about journalism. It's crap and you only realize it when it covers something that you know in-depth.

https://en.wikipedia.org/wiki/Gell-Mann_amnesia_effect


Based on the article, the doctor didn't say "you're not following process", he said "send her home with some diabetes medication, and schedule a follow-up visit for next Monday".

The first is not a medical opinion, the second one is.

The NP can answer for not coming to the precious doctor via the right process, the doctor can answer for giving advice that led to her death.


The sloppy, inaccurate article said that. The court ruling the article purports to be describing did not. The actual court ruling says the following:

" They disagree about which diagnostic information Simon shared with Dinter. Simon says that she shared both the abnormal test results and Warren’s symptoms; Dinter says that Simon shared only some of the test results. Simon says that the conversation with Dinter took place after urinalysis results became available in the early afternoon; Dinter says that the conversation took place “in the late morning or noon,” and that Simon did not share any urinalysis results. Simon says that she specifically requested that Warren be hospitalized; Dinter says that Simon only asked him whether Warren should be hospitalized."

In neither of their opposing descriptions does it sound like the hospitalist gave a specific course of treatment - they are only disagreeing as to whether he said "I don't think she needs hospitalization" vs. "No, I'm not hospitalizing her."


I read the whole doc. I don't know what to think anymore. Both the opinion and dissent make sense (someone once told me "when smart people come to different conclusions, usually none of the conclusions are very stupid").

I guess the debate is about whether the hospitalist

a) had a duty, which if not done well, harm could be foreseen, and/or even acted as a "gatekeeper"; or

b) just provided advice, one of the inputs for the decision making, and/or controlled just one of the paths to treatment, and had no expectation first doctor would rely on him exclusively.

Both are argued really well. The back-and-forth between them, in the paraphrasing and footnotes, is fun to read. It's interesting to see how they use the same facts (e.g. that Dinter was assigned randomly) to draw opposite conclusions. Note that both even agree that "if Dinter breached the applicable standard of care for hospitalists, his negligence should have consequences."

Huh.


Entirely circumstantial, but contacting a second physician about the same patient sounds more like something that would be done after being refused then after simply asking an opinion.


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

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


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..


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...

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

Hopefully medicine 3.0 will be better.


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.


> 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.


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.


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.


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.


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.


The article title is baity, so the submitter correctly changed it in accordance with the site guidelines: 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.


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".


The main message of the article is more about how doctors routinely deny admission of patients to their hospitals without actually seeing them, and how this is a very strange practice that in this case might have lead to an avoidable death (and certainly to a more agonizing end as no palliative treatment was possible).

The title speaks only of the fairly common sense ruling that actively denying admission constitutes a clinical decision


This would be acceptable: "Minnesota court decision means doctors can be sued by patients they choose not to treat"

Current title sounds like patients can sue random doctors.


I think the title chosen by the submitter is editorializing. There's a question of whether or not diagnosis amounts to treatment, and a less editorialized title might read ".. doctors can be sued for misdiagnosing patients they don't have a formal relationship with" however that isn't even really correct, since the doctor in question was acting in a formal capacity when he made the diagnosis.


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."


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.


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.


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.


I agree.


The judgement specifically states that this is more than a curbside consult.


Mods asked a question, not rendering final judgement: https://news.ycombinator.com/item?id=20205224

I'd still like to see a less sensational headline and replied there.


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?


> 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.


[flagged]


They're examples of why "just let patients treat themselves" is frequently a horrible idea.

A layperson shouldn't be diagnosing something like diabetes. Once you're on insulin, refills will typically be a (free!) phone call or email away. My daughter's on growth hormone, for example. Obtaining a new prescription when we run out of refills doesn't require payment or a visit. (The meds themselves do cost an insane amount, of course, and the doc does like to see her once in a while to make sure we've got the dosing right, which seems reasonable.)


The individual should be sovereign over the self. You're fine needing permission to live. I'm not.

I was clear about treating conditions the patients had for years. You straw manned again.

You must have a conflict of interest. Maybe you are a doctor.


Please don't break the site guidelines by crossing into personal attack.

https://news.ycombinator.com/newsguidelines.html




Guidelines | FAQ | Support | API | Security | Lists | Bookmarklet | Legal | Apply to YC | Contact

Search: