Your Practice Made Perfect

This podcast series provides support, protection, and advice for today’s medical professionals. Brought to you by SVMIC, a mutual insurance company that is 100% owned and governed by our policyholders.

Sep. 21, 2018

Episode 034: The Impact of Preconceived Notions

Attorney Tim Behan and Brian Fortenberry discuss how the depersonalization and dissociation from a well-known patient can help provide more effective treatment. In this closed claim review, a 40-year-old woman with drug-seeking behavior is left with neurological damage due to assumptions made about her condition.

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Show Notes

"The Patient Who Cried Wolf" by Tim Behan

  • Transcript

    Speaker 1: You are listening to Your Practice Made Perfect; support, protection and advice for practicing medical professionals brought to you by SVMIC.

    Brian: Hello and welcome to this episode of our podcast. Today we're going to be looking at another closed claim to discuss the facts of the case, and some interesting things that our listeners will be able to get from this to help them in their own practice. My name is Brian Fortenberry and joining me today to help discuss this case is attorney Tim Behan. Tim, thanks for being here.

    Tim: It's good to be here, Brian. Thank you.

    Brian: Before we get started, tell us a little bit about yourself, Tim. I know you've been

    here at SVMIC for a while and tell us a little bit about your background.

    Tim: Well I'm a proud graduate of the University of Georgia and University of Arkansas School of Law and after working for the State Attorney General's Office for three years, I have been serving our policyholders here for over 19 years now.

    Brian: Well I really appreciate you taking the time to come in and discuss this. This is an interesting case and we're gonna get started. Just really being able to give our listeners some background here, I'm gonna tell them about the case that we're going to be discussing. A 40 year old female with a history of lower back issues and drug seeking behavior, presented to a somewhat rural emergency department where everybody was well familiar with her frequent attempts to secure narcotics. This was her fifth visit in four months and on this particular presentation, she gave a history of sharp pain almost like being stabbed in her spine after trying to pick up a heavy object at our home earlier that day. The patient was a bit more hysterical than usual and the doctor was having a difficult time assessing her.

    The doctor was eventually able to conduct a full physical exam. This exam did not include ambulating or obtaining any images. The patient was uncooperative and seemed to be upping the ante for drugs by complaining of great pain out of proportion to the physical findings. The doctor documented the exam as essentially normal. A non-narcotic pain reliever was prescribed, instructions were given and the patient was discharged. When an ED nurse came to the exam room to ready the patient for home, she found her on the floor complaining that our legs were numb and that she was having trouble walking. The nurse assisted the patient to the wheelchair and rolled her to a waiting vehicle. During this short trip, the patient reported that she had urinated all over herself and needed to go back inside the hospital. It appeared to the nurse that this was a last ditch attempt to get stronger pain medications. The patient was told that her neurologic exam was normal because the doctor saw the patient move her legs in the exam room and thus there was no need for further evaluation.

    While the nurse did note the complaints of numbness and alleged incontinence, this information did not make it back to the doctor. A few days later, well past 72 hours from the initial incident at home, the patient went to a different facility. There a CT and follow up MRI were ordered. The patient was diagnosed with a large lumbar disc rupture resulting in cauda equina syndrome. Surgical intervention occurred, but it was too late to reverse the significant neurological deficits. A lawsuit was filed against the doctor and the hospital. Tim, a lot going on here in this case unfortunately. What were those exact allegations against the physician?

    Tim: Well against our doctor, the lawsuit when it was filed stated that she had committed malpractice for failing to perform a more a thorough examination, failing to order diagnostic studies, failing to refer to a specialist, specifically a neurosurgeon, and to stabilize the patient before discharging home. That kind of went against the hospital too in terms of an overall EMTALA claim.

    Brian: Initially, did the physician feel like the standard of care had been met?

    Tim: At the time of course, and that's how we look at these cases. It's not in hindsight what would you have done differently.

    Brian: Right.

    Tim: But at the time she did feel that it was an appropriate examination and that she had met the standard of care.

    Brian: It's a difficult scenario. You have a patient that has had certain patterns. You kind of go in with some preconceived notions. What would the advice be in a similar situation regarding a patient that like this has repeated visits and attempts to secure narcotics this way?

    Tim: Well, you're right, Brian. It is an incredibly difficult situation and I'm sure one all of our listeners, particularly our doctors encounter day to day in the emergency departments, in their offices. They deal with these patients every day and in fact, it's not even just the hospitals. I get these calls all the time from patients coming in repeatedly into our doctors' offices wanting narcotics. So how you deal with them? But here in this specific case, it presents an interesting dynamic because you have a situation where you know this patient.

    Brian: Right.

    Tim: Clearly here five times in four months.

    Brian: Sure.

    Tim: And so they're coming in and it's a good thing, bad thing, and in this case it really turned on two things. One, was she noted in her record that the patient was a bit more hysterical. A lot of times our emergency department physicians are seeing patients for the first time or one time and they have to make a clinical judgment. Here because our doctor knew that patient so well, she was able to state that there was a bit more hysterical. Now it seems like an innocuous statement and shouldn't really hang the doctor up too much, but it did 'cause the plaintiff lawyer and the deposition was like, "Well if you knew that this was a bit more hysterical.", quoting her line.

    Brian: Right.

    Tim: "Why didn't you take extra efforts?" And that's really hard to answer that unless you say, "Well I thought she was just a drug seeker."

    Brian: Right.

    Tim: And that's something certainly you don't want to stay in front of a jury when they have cauda equina, when it turns out when this was the end result. So because you know the patient so well, you can use that patient's specific dynamic to almost help yourself and say, "Well I know this person and I know they come here a lot. But this does seem a little out of the ordinary and maybe I should take an extra step or two to make sure that everything's okay."

    Brian: So, do you think the fact that the blinders were on having this relationship with this patient? When you write something that you think maybe is just a throwaway line of a bit more hysterical, do you think the blinders in this scenario saying that, that a plaintiff attorney grabbed onto that and then said, "Okay. You obviously knew something was different." Did that have a huge effect in this case?

    Tim: It had a monstrous effect. It really turned everything once we got into that and saw it and the plaintiff's lawyer made a big deal of it. And again, it just seems like a throwaway line.

    Brian: It does.

    Tim: But when you put that in there, it's stating in the medical record, to the world, to a jury, "Hey, I know this person. We're in a rural community. I've seen them frequently and this time was a little more unusual." "Well then doctor, why didn't you take that extra step because you thought it was a little more unusual?", and that really was a turning point. And another turning point in this case that really harmed us was it was kinda... in any emergency department, rural, big city, it doesn't matter.

    Brian: Right.

    Tim: Very busy, you gotta see patients, you gotta get to the next one. The walking, the ambulating was key here and that's really why we ended up having to settle this case, was she saw her move her legs and she did. She noted that the patient was sitting in a chair. She moved her legs, but she didn't have her stand up and walk.

    Brian: Seeing someone move their legs and walking down a hall to different things, obviously.

    Tim: Absolutely. Listeners to this or when we're talking to our physicians will think, "Well should I just order a CT on every patient?"

    Brian: Right.

    Tim: And no, that's not the standard. But in your medical judgment, if she had had her stand up, walk across the room and realized that she really is in distress. She is having difficulty. That may have prompted her to say, "Oh, wait a second. Let's send you up for an MRI. Let's send you for a CT." And that probably would have changed this entire case.

    Brian: It does sound like it's easy to see this as the typical boy who cried wolf situation. What are some tips maybe for other doctors out there who might want to assume a patient is crying wolf? That's a dangerous line to walk in making that assumption. Based on the information of this case, what do you think is some really good advice out there because there are going to be doctors, like you said, that see these patients come in their offices and emergency departments, wherever drug seeking. How do they protect themselves without the unnecessary of like you said, "We're gonna do a CT on everybody that walks through the door."?

    Tim: No, that's a great question. I think in this age of the opioid crisis, it is overwhelming and in a situation like this going forward, we might be able to actually use it to our advantage. We might be able to say to these frequent flyers, as they are referred to in the ERs, EDs, "We're not in the pain management business and we need to be very careful with narcotics and opioids. We're going to prescribe you this lesser drug and try to stabilize you." And this is after of course, determining that they are stable and can go home and don't need admission or referral immediately, something like that. So you say, "We're just not going to do that. Let's get you to your primary care physician. Let them make a determination and maybe get you to pain management. Get you to a specialist." In another situation that I was thinking about this, you know, we all go through it, whether we're a physician and working here, a state volunteer, we get very rushed, very busy and sometimes we just need to take a deep breath.

    Brian: Yeah.

    Tim: And when a crisis situation or where things seem chaotic, take that deep breath and just depersonalize and say, "Okay, what do I need to do here? I'm going to treat this as a person I've never seen, even though I know this person very well." And then just go through the steps like it's a brand new patient you've never seen in your life. So the depersonalization and also a disassociation.

    Brian: Right.

    Tim: Because a lot of times there's a frustration when you see these patients that really are not doing best for themselves and you want them to. I've yet to meet a doctor who didn't want to do their very best for each and every one of their patients and here if you can disassociate and say, "I'm going to look at this as stepping outside of the role and do what I can and not take this personally. It's not about me."

    Brian: No.

    Tim: "This is about them, but I need to do what's best for them within the abilities I

    have and within the restrictions that I have and just go from there."

    Brian: I think that's fantastic advice and also really appreciate you being here today to discuss this with us. I think there is going to be some listeners out there that potentially have some of these types of patients, that are going to be able to benefit from your discussion today. Thanks so much, Tim.

    Tim: Thank you. I appreciate it.

    Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host, Brian Fortenberry. Listen to more episodes, subscribe to the podcast, and find show notes at The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time. All names in the case had been changed to protect privacy.

The contents of this Podcast are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time. All names have been changed to protect privacy.

About our Guest

Tim Behan

Mr. Behan is a Senior Claims Attorney with SVMIC. He received his Law Degree from the University of Arkansas in Fayetteville in 1995. He moved to Nashville, Tennessee shortly thereafter and began his law career with the State Attorney General's office. Mr. Behan joined SVMIC in 1998.

About our Host

Brian Fortenberry is Assistant Vice President of Underwriting at SVMIC where he assists in evaluating risk for the company and assisting policyholders with underwriting issues. He has been involved with medical professional liability insurance since 2007. Prior to his work at SVMIC, Brian worked in the clinical side of medicine and in broadcast media.