I'm an FP who makes every effort
to practise current evidence-based medicine. Recently,
for the second time in as many years, I was berated
by the family of a patient who developed colon cancer
for not having sent him for a colonoscopy (in fact,
I had discussed in detail the risks and benefits of
this with him). I am, of course, worried that I'll be
sued, but I'd also like your advice about how I should
respond to patients or family members in these circumstances.
Signed, Tongue Tied
Dear Tied
I'll deal first with your concerns about being sued
by this family. Their winning would depend on whether
the current standard of care required you to order a
colonoscopy in this case. This is something that can
only be determined through expert evidence. If it was
the case that you should have sent the patient for a
scope, you could defend a negligence action by establishing
that your conduct (ie not ordering the colonoscopy)
was consistent with "approved (professional peer) practice."
In other words, even if some physicians would have ordered
the colonoscopy in those circumstances, if not ordering
the test was consistent with a recognized and respected
practice of the profession, then you wouldn't be found
negligent. This holds true even if, in hindsight, a
colonoscopy would have saved the patient's life or prevented
his cancer, because courts are required to assess the
physician's conduct in the circumstances of the individual
case, and without use of a "retrospectoscope"!
With respect to how to deal with
the patient's irate family, you should be sure to address
their concerns head-on, not confrontationally, but in
a way that makes them feel their concerns have been
heard. If you're confident that your conduct was appropriate,
and if you wouldn't order a scope if a similar patient
came to you today, then you should explain this to the
patient's family. Tell them there are risks associated
with all tests, including a colonoscopy, and it may
not be appropriate to order this test for patients who
don't have any risk factors for colon cancer. If, on
the other hand, you're in any doubt about the way you
handled this case, it's a good idea to arrange to speak
with the patient or family members after you've reviewed
the patient's medical records and consulted with your
lawyer.
THIS
SPORTING PRACTICE
Dear Lonny,
I'm in the process of 'acquiring' a physician to work
in a sport medicine practice with me. Do you have any
suggestions in terms of restricting practice in my area,
should he go his separate way in the future? I understand
that it can be difficult, but I am wondering if there's
a standard form I could use. Are there any other areas
I should be concerned with?
Signed, Covering My Tracks
Dear Covering
You're wise to sort this out before the new recruit
comes on board. The best way to protect your practice
from competition from within is through a non-solicitation
clause and/or a very narrow non-competition clause in
an association agreement. Although sport medicine is
a fairly specialized practice area, courts will not
likely countenance any attempt to prevent a departing
doc from practising in their chosen field, except within
a very small geographic region and for a very short
period of time.
On the other hand, it's perfectly
fine to require your associate to agree not to try to
take patientswith them. Of course this doesn't mean
that, if the associate ultimately sets up a sport medicine
clinic down the road, your patients cannot seek them
out. But it does mean your ex-colleague can't write
to all of your patients and invite them to come and
check out their new state of the art facility. You could
sue them if they did.
Your question raises another important
issue: the perils of standard agreements. I don't recommend
using them because there's a chance you could end up
with one that's not appropriate to your circumstances
and therefore wouldn't stand up in court. An association
agreement doesn't have to be long or complicated, but
there's no "one size fits all." After all, an agreement
between an established physician and a greenhorn will
be far different from one between two experienced physicians
who decide to associate to share costs and coverage.
A judge would see it this way. Take a little extra trouble
and get an agreement that's tailored to your particular
situation. If you end up in court, you'll be glad you
did.
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