case study

To prove the tort of negligence, 4 elements must be met: duty, breach of duty, causation, and injury. Duty refers to the relationship between the plaintiff and the defendant. It must be determined that the defendant had a relationship with the plaintiff that obligated the defendant to behave in a certain matter towards the plaintiff (Findlaw, n.d.). Within that relationship, the defendant must “exercise reasonable care” to the plaintiff. In tort law, reasonable care refers to standard of care as the usual procedure or practice of likeminded professionals under comparable circumstances in like communities (Harris, 2014). Once duty has been established, breach of duty must be proven. Breach of duty means that the “defendant failed to exercise reasonable care in fulfilling the duty” (Findlaw, n.d.). After breach of duty has been established, the plaintiff must prove that the breach in duty caused actual damages to the plaintiff. Finally, injury must be proven. The plaintiff must prove that a legally recognized harm, usually some sort of physical or emotional injury to a person or property, has occurred and that the harm can be alleviated by money damages awarded to the plaintiff (Findlaw, n.d.).

Because Dr. Green was Parkers PCP and treating physician, she had a duty to exercise reasonable care to him. Dr. Green deviated from the standard of care for treating Swinehausen's syndrome in that she gave him instructions to take 10 times the amount of the standard dose. Because Dr. Green only told Parker the risks and benefits for taking 1 tablet per day and not 10, she failed to obtain his informed consent. This is ethically a concern as it violates the ethical principle of autonomy however, it is not necessarily a legal issue. Although a physician is required to inform a patient about benefits, risks, and alternative treatments, written informed consent is not required for medication unless the patient is part of a drug study (Findlaw, n.d.). Since Dr. Green deviated from the standard of care, breach of duty applies in the situation. Because of the breach of duty, Parker died which constitutes legally recognized harm. Parkers death has a direct effect on his family, not only emotionally, but financially as well. Parkers family must now go without his income which puts a hardship on the family. The financial harm caused by Parkers death can be alleviated by money damages awarded to the plaintiff (Findlaw, n.d.). This writer would argue that Mrs. Parker has a very solid case for negligence or wrongful death by Dr. Green.

When it comes to Mrs. Parker’s claim that the Plan is vicariously liable for Mr. Parkers death, things are not as cut and dry. Plan states explicitly that the physicians on the list they provide to beneficiaries are not employees or agents of the MCO even though the physician all signed a written agreement with the Plan. In most cases, when physicians are not employees or agents of an MCO, the MCO cannot be held vicariously liable for malpractice by the physician. However, in some cases where the court believes that the MCO holds the physician out as its agent or employee, the MCO could be held vicariously liable. The fact that the MCO contracts with physicians and provides Plan beneficiaries with a list of physicians to choose a PCP from, could appear that MCO is holding the physicians out as agents (Kessler & McClellan, 2002).

Recommendations

This writer would propose 2 recommendations. The first is for the Plan to have more transparency about its contracted providers. If all a beneficiary is given is a list of doctors, how can they make an informed decision on who their doctor should be? Parker assumed Dr. Green was competent based on the simple fact that her name appeared on a list from the insurance company. For full transparency, the Plan could choose to implement different tools such as a user-friendly website that would enable enrollees to obtain more information about the physicians in the Plans network. The website could also provide a link to CMS’s Open Payments data portal. This is a portal that gives the public access to information about doctors’ financial relationships with other health care companies such as pharmaceutical and device companies (CMS.gov, n.d.). Being informed is vital to making good decisions about care, and the lack of information in this case contributed to a tragic outcome.

The other recommendation is to stop or reduce the use of free pharmaceutical samples in the PCP office. Although it is perfectly legal for doctors to give samples of medication to their patients, it can lead to negative outcomes such as in the Parker case. Had the doctor actually written out a prescription and sent Parker it to the pharmacy to get the medication filled, the pharmacist would have been able to catch the error and would have contacted the doctor to correct the prescription. Working with a pharmacist is a sort of checks and balances for the doctor. One study found that a medication reconciliation process performed by a pharmacist can be cost-efficient and effective by potentially preventing 81 adverse drug events for every 290 patients (Feldman et. al, 2012). Physicians are increasingly time-constrained and by utilizing a pharmacist to provide a quick medication check, they can save time and money.

Conclusion

Medical malpractice is extremely costly and deadly in the US. The US has a system of tort laws to protect the patient as well as encourage the physicians to practice safe medicine. As demonstrated by the case of Mr. Parker, physicians make mistakes that can have deadly consequences. There are many things at the system level and at the practice level that can be put into place to better protect patients and their providers. By showing more transparency to beneficiaries, insurance companies can empower them to become more educated on the providers they choose from which would increase the outcome of a healthy and trusting patient-doctor relationship. At the practice level, providers can put safeguards in place to reduce medication errors such as stopping the use of free medication samples and encouraging collaboration with a pharmacist. Healthcare should be a team sport with collaboration between multiple medical professionals. Increased collaboration can improve outcomes, save time, be more cost efficient, and ultimately save lives.

References Chimonas, S., & Kassirer, J. P. (2009). No More Free Drug Samples? PLoS Medicine, 6(5), e1000074. http://doi.org/10.1371/journal.pmed.1000074 CMS.gov. (n.d.) Open Payments. Retrieved from https://www.cms.gov/openpayments Feldman, L. S., Costa, L. L., Feroli, E. R., Nelson, T., Poe, S. S., Frick, K. D., ... & Miller, R. G. (2012). Nurse‐pharmacist collaboration on medication reconciliation prevents potential harm. Journal of Hospital Medicine, 7(5), 396-401. Findlaw. (n.d.) Elements of a Negligence Case. Retrieved from http://files.findlaw.com/pdf/injury/injury.findlaw.com_accident-injury-law_elements-of-a-negligence-case.pdf Findlaw. (n.d.) Understanding Informed Consent - A Primer. Retrieved from http://healthcare.findlaw.com/patient-rights/understanding-informed-consent-a-primer.html Gower, J. (2016, April 18). 2016 Medical Malpractice Payout Analysis. Retrieved from http://www.diederichhealthcare.com/the-standard/2016-medical-malpractice-payout-analysis/ Harris, D. M. (2014). Contemporary Issues in Healthcare Law & Ethics (Fourth ed.). Chicago, Illinois: Health Administration Press. Kessler, D., & McClellan, M. (2002). Malpractice law and health care reform: optimal liability policy in an era of managed care. Journal of Public Economics, 84(2), 175-197.