Of all the instruments you use in the practice of medicine, the telephone can be the most dangerous in terms of professional liability. When carelessly conducted, phone communications can lead to diagnostic errors and misunderstandings that culminate in medical malpractice claims. Telephone conversations are inherently deceptive, because reliable communication is incomplete without facial expressions or body language to clarify and qualify what the voice is saying. Early morning phone conversations between weary attending physicians and hospital house officers are especially dangerous.
One of the most hazardous communication combinations is the phone and the ER. Emergency rooms are often staffed by personnel who are unfamiliar with the patient’s problem or are unable to recognize the danger of what appears to be a superficial injury (e.g., a moonlighting medical or psychiatric resident treating a head injury). By offering medical advice on the phone, you can legally become the attending doctor of a patient you have never seen. The best way to protect yourself from such potential liability is to practice effective telephone communication.
Practical Suggestions
- Obtain as much information as possible about the patient who is calling.
- Prescribe or advise by phone only when you know the patient’s medical history.
- Accept a third party’s description of a medical condition only when you have confidence in his or her competence to describe what he or she sees.
- Question the caller about his or her experience with a specific medical situation.
- Insist on repeating all vital instructions to patients to help ensure comprehension.
- Be especially wary of calls concerning abdominal or chest pain, fever of unknown origin, high fever for more than 48 hours’ duration, convulsion, vaginal bleeding, head injury, dyspnea, a too-tight cast, visual alterations, the onset of labor, or paralysis.
- Be particularly careful that the pharmacist understands all dosages and instructions for drug prescriptions given by phone. Insist that the pharmacist recite the information back to you. Instruct your office personnel on the dangers of automatic, routine approval of prescriptions, even if they know a patient well. If anything adverse occurs, you are just as vulnerable to a claim by patients you know well as by those you do not. (Approval of certain prescriptions, such as tranquilizers, antidepressants, or hormones, could prove particularly hazardous without periodic examination.)
- If you take a call for another doctor, be especially on guard against telephone miscommunication if you do not know the patient. Do not make hasty decisions based solely on phone conversations. In several instances, the covering doctor has been held completely responsible for damages resulting from a telephone diagnosis, while the original physician was exonerated.
Disastrous Cases
Late one night, following a cervical laminectomy, a 52-year-old patient manifested bilateral grip weakness and tingling in his fingers. At 2 a.m., the nurse telephoned a neurosurgeon who was on call for the patient’s surgeon. The neurosurgeon had never seen the patient and later contended that he was not given a complete picture of the problem. Based on the assumption that the patient had routine complaints of pain, he gave the nurse some orders. The patient’s motor deficits continued, and he ultimately became quadriplegic.
Although the neurosurgeon had never seen the patient, the court ruled that a doctor-patient relationship existed because the neurosurgeon had given orders for the patient. This case resulted in a $1.2 million verdict against the covering neurosurgeon.
Another case involved a 42-year-old male who suffered from chronic back pain following an industrial work injury. The patient had been undergoing pain management, but felt that this therapy was no longer effective. He was referred to a neurosurgeeon who performed a preoperative evaluation and scheduled surgery. The procedures were as follows: L4-5 and L5-S1 bilateral discectomy and L4-5/L5-S1 interbody fusion with instrumentation.
Postoperatively, the patient developed severe back pain. Nurse A transmitted this message to Nurse B in charge of the unit before she left for the day. Nurse B called the neurosurgeon and left a message for the neurosurgeon to call back. When the neurosurgeon called back, he ordered x-rays. The x-rays showed a definite spondylolisthesis, with an expulsion of one of the cages at left L4-5.
The radiologist placed a call to the neurosurgeon, but was distracted by a patient falling in his department before he completed the call. Radiology’s report went to the nursing unit where it was filed in the patient’s medical record. Although the patient had been medicated for his severe back pain, he was not made aware of the failed procedure until three days later. An unplanned return to surgery was completed; however, this patient now suffers from greater-than-before-surgery pain. An expert opinion revealed additional damage resulted from the three-day delay.
These cases display faulty communication on behalf of all healthcare providers.
The Need to Document
Disagreements about what was said are invariably a major problem when cases are tried. It is of prime importance, therefore, to obtain all of the necessary information on the phone, and if you still feel there is any area of ambiguity, we strongly advise that you visit the patient. An alternative is to have either a physician in the hospital or another nurse check the patient. The critical point is that you must arrive at an accurate and totally reliable appraisal of the patient’s condition either while you are on the phone or within a few minutes thereafter.
The information you received, what you advised, and the orders you gave need to be recorded immediately to avoid future discrepancies about what was said. This is especially important when the phone call occurs after office hours or on weekends. During office hours, take steps to resolve the caller’s questions and problems. The patient’s problem should be appropriately referred and the process should be documented. Tell the caller when the physician is most likely to follow up to ensure that the questions and problems were resolved on schedule.
Effective communication is particularly important when telephone communication is involved. Physicians who are careful in their use of the telephone will reduce misunderstandings that can lead to legal action.
Mark Gorney, MD, a plastic surgeon, is a founding member and medical director of The Doctors’ Company. Joan Bristow, RN, MA, is vice president of TDC Risk Management.