A medico-legal case for compassionate health care

Heartbreak and heartache are part of our profession.

A baby boy is born with cerebral palsy (CP) because of fetal distress. A healthy young woman bleeds to death because of a ruptured ectopic pregnancy. A middle-aged man with indigestion dies later the same night from a heart attack. These scenarios happen often, at times because medical care is not sought, at other times due to malpractice, and sometimes with the best medical care.

It’s not enough to say you care. You have to show it – over and over again.

One of your most powerful attributes is compassion

As a physician, one of your most powerful attributes is compassion – empathy in action. Of course, to be a good doctor you need skill and knowledge. You need the benefit of CME to boost your training. But empathy – seeing the disease process from your patient’s point of view – creates a return that delivers more than you may think.

When we care, we pay better attention. Not only do we give more effective medical advice, we also prevent the number one cause of medical malpractice cases: discontinuous care.

Patients also don’t want to sue doctors they like – and if they do, they’re willing to settle for much less.

Two real-world scenarios illustrate the case for compassionate care – to the tune of $13 million.

I’ve practiced family and emergency medicine in both rural and urban centers. Over the past ten years, I’ve also been the in-house medical consultant at a well-known personal injury firm, reviewing cases and advising attorneys. The following parallel real-world scenarios illustrate the case for compassionate care – to the tune of $13 million.

Cindy

Cindy wakes with a start, her sheets soaked. She is pregnant, at full-term, with no contractions. It’s 3 am.

She calls her obstetrician’s office and the on-call OB tells her to go to the hospital. She arrives half an hour later, goes through the ED to L&D, and is hooked up to a fetal heart monitor (FHM). Cindy is a large woman, so it’s hard for the nurse to get an adequate fetal monitor strip. The on-call OB, whom Cindy has never met, is paged and arrives in five minutes. The strip reveals a good fetal heart rate (FHR) – in the 140s – as it had been for the past few prenatal visits. After the exam, Cindy is told her membranes have ruptured and she will have to stay until she delivers.

This is Cindy’s first baby. She and her husband have gone to all the prenatal classes. During her pregnancy, she has seen four of the eight docs in a busy Ob/Gyn practice, but has no real connection with any of them.

By 11 am, Cindy still has no contractions, and the new on-call doc is paged. He is in clinic and orders a Pitocin drip over the phone. Contractions start and became regular and painful. The on-call doc sees Cindy after his clinic hours. Because her contractions are still regular and painful, she asks for and gets an epidural. Due to her large size, the FHM isn’t working consistently. When it does, the FHR is in the 140s. The nurse accepts this less-than-adequate monitoring.

That night, L&D is busy, with several other women in labor and delivering. The OB isn’t paged by Cindy’s nurse, so he doesn’t visit her again, until her baby crashes just after 2 am and is delivered by emergency Caesarian Section. The cause: uterine tachysystole – contractions too often. The result: hypoxic-ischemic encephalopathy (HIE) and a baby with CP.

Cindy and her husband were understandably upset. Because they had no real relationship with either OB on call, they were also furious and vengeful. In court, the jury awarded $13,000,000. The insurance company settled after trial for $7,500,000.

Amanda

Amanda, also pregnant and full-term, has a similar story.

She is awoken at 2 am by a contraction and calls her OB. She’s told to stay home and call back when the contractions are regular and strong. By late afternoon, Amanda’s ready, calls her OB, and goes straight to L&D.

Like Cindy, Amanda is a large woman and it’s hard to get the FHM to work consistently. The nurse struggles to get an adequate strip. The on-call OB is paged and arrives in five minutes. After a few minutes, she is able to get a good monitor strip, revealing a FHR in the 130s, as it had been for the past few prenatal visits. After the exam, Amanda is told she is in active labor.

Amanda had been referred to a four-doc OB/Gyn practice, all of whom she had seen at least once. This is her first baby, and she and her husband had attended all the prenatal classes.

Late that night, Amanda’s labor subsides, and the on-call doc is paged. She examines Amanda and takes her time to explain the pros and cons of a Pitocin drip. Amanda agrees and, after a few minutes, Amanda’s contractions become regular again. Amanda asks for and gets an epidural.

An hour later, the FHM isn’t working consistently but still reveals an FHR in the 130s. The on-call doc is paged, arriving a few minutes later. The OB spends some time adjusting the FHM until it works. Thirty minutes later, it stops working, so the nurse chooses to use the fetoscope, instead.

Overnight, L&D is busy. The OB isn’t paged by Amanda’s nurse, so she doesn’t visit Amanda again, until the baby crashes at 7 am. The cause: uterine tachysystole. The result: hypoxic-ischemic encephalopathy (HIE) and a baby with CP.

Amanda and her husband were extremely upset. But because they had a real relationship with the OB on call, they wanted to believe that she had done everything that was appropriate – and were reluctant to sue.

Compassionate care isn’t about "faking it" to avoid a lawsuit

Compassionate care is usually more attentive – which improves continuity of care and patient outcomes. Even with compassion, outcomes are sometimes poor. The end results of the two stories above are the same – babies with CP. The medico-legal side stories are different.

Compassionate care isn’t about “faking it” to avoid a lawsuit. Caring interactions with our patients give us deeper internal rewards and promote continuous care and improved health. The fact that compassionate care could also help deter long and painful litigation down the road is a secondary, and very real, benefit.

About the Author

Barry Bialek, MD

Barry Bialek, MD is a board-certified family physician living in Boulder, Colorado. His practice includes both family medicine and emergency medicine. For the past 10 years, Dr. Bialek has served as the in-house medical consultant to one of the most successful plaintiff's personal injury law firms in the US. His job was to advise on every medical step of every medical malpractice case. This gives Dr. Bialek a unique perspective on medical malpractice and how best to avoid it.

Dr. Bialek has held clinical faculty positions with the departments of family medicine at both the University of Toronto (Canada) and the University of Arizona. Dr. Bialek is currently a member of the faculty of the University of Colorado, College of Engineering, where he teaches his other passion: sustainable community development in Nepal.