By KIP SULLIVAN (30)
On April 17, the Minnesota Supreme Court published an opinion holding that doctors who deny services to patients may be sued even if they did not have a doctor-patient relationship with the patient. The decision drew expressions of surprise and consternation from observers inside Minnesota. Many malpractice experts had expected the court to conclude that patients cannot sue doctors unless the doctor had actually treated the patient. But in this case, Warren v. Dinter , the court held that a hospitalist [1] who refuses to admit a patient to the hospital may be sued for causing the death of the patient even though the hospitalist never laid eyes on the patient.
The court sent the case back to the district court for trial.
The defendants listed in this case are both the hospitalist, Dr. Richard Dinter, and the Fairview Range Medical Center in Hibbing, a small town on Minnesota’s Iron Range. The plaintiff is Justin Warren, the son of Susan Warren, a woman who died at the age of 54 one day after being denied admission to the Fairview hospital.
This is an odd case, and a complex case. It raises at least three questions worthy of extensive public debate. In the next section I will recite the basic facts of this story as they were reported by the opinions of the Minnesota Supreme Court and the Court of Appeals. In the section after that, I will discuss the three issues.
What we know about the death of the plaintiff’s mother
On the morning of Friday, August 8, 2014, Susan Warren visited Essentia Health Clinic in Hibbing. The clinic is part of the 15-hospital-75-clinic chain called Essentia Health that extends over much of northern Minnesota and Wisconsin. The clinic is about a block away from the Fairview Range Medical Center, the only hospital in Hibbing, one of 12 owned by Fairview Health Services a hospital-clinic chain that sprawls over the eastern half of Minnesota.
Warren was suffering from fever, chills and stomach pain. A nurse practitioner at the Essentia clinic, Sherry Simon, drew some blood from Warren and sent it to a lab. That afternoon the lab reported that “Warren had unusually high levels of white blood cells, as well as other abnormalities,” as the court put it (p. 3). (Unless I note otherwise, “the court” refers to the Supreme Court, not the Court of Appeals.) Simon concluded, naturally enough, that Warren had an infection and needed to be hospitalized immediately. However, rather than send Warren straight to the ER of the Fairview Range Medical Center, Simon called the hospital “to seek Warren’s admission.” (p. 3) Simon’s call was routed to Dr. Richard Dinter, one of three hospitalists on call that day.
After hearing Simon’s summary of Warren’s symptoms, Dr. Dinter declared her symptoms were due to “a diabetes that’s out of control” (as the Court of Appeals put it) and recommended that Simon send her home with some diabetes medication, and schedule a follow-up visit for next Monday, three days later. Upon hearing this strange diagnosis, Simon politely inquired whether it was accurate. “Simon says she asked whether diabetes could actually be the source of the elevated white-blood-cell count,” reported the court, “and that Dinter responded that it could. Simon says she asked this question because it was the first time someone had told her that out-of-control diabetes could cause a high white-cell count.” Rather than challenge Dinter’s flaky diagnosis, Simon asked him again to admit Warren. Dinter replied, “To what end?” (pp. 4-5) Simon got the message: Dinter had made up his mind he would not admit this patient, and he was not interested in further discussion.
Still concerned about Ms. Warren’s condition, Simon then spoke to Dr. Jan Baldwin, her “collaborating physician” at the Essentia clinic. Amazingly, Baldwin, who also did not examine Warren, agreed with Dinter – Warren was suffering from out-of-control diabetes. (Neither court opinion indicates whether Warren had been previously diagnosed with diabetes.) At that point, Simon relented. According to the court, “Simon then discussed the diabetes diagnosis with Warren, prescribed diabetes and pain medication, scheduled a follow-up appointment, and sent her patient home.” Warren died the next day, Saturday. Her son found her body in her home the following Monday. An autopsy revealed that the cause of death was “sepsis caused by an untreated staph infection.” (p. 5)
On March 7, 2016, Ms. Warren’s son Justin sued Dinter and the Fairview hospital for malpractice. At some point prior to that date, Justin Warren “sued Essentia Health for the alleged malpractice of its employees, Simon and Baldwin.” (p. 6) That case was settled out of court.
Dinter and Fairview argued to the trial court that Justin Warren could not sue Dr. Dinter and Fairview because Dinter was not in a physician-patient relationship with Ms. Warren at the time he refused to admit her. According to the defendants, Dinter had merely offered the nurse practitioner, Sherry Simon, a “curbside consult.” The trial court and the Court of Appeals agreed with that argument. The Supreme Court did not. By a 5-2 margin, it held that Dr. Dinter had made a medical decision even though he was not treating Ms. Warren, and the only question before the trial court should have been whether Dinter should have foreseen that his medical decision could harm Ms. Warren. The court concluded that Justin Warren did not have to prove that his mother was in a doctor-patient relationship with Dinter in order to proceed to trial.
This was unquestionably the correct decision. If the court had ruled against Justin Warren, that would have meant hospital staff can refuse to admit patients in dire need of inpatient care and never be held accountable in a court of law. Such a decision would have rested on an irrational and infuriating premise: That hospitalists can slam the hospital door on sick patients they have never examined, and when they are sued they can claim, “I never laid eyes on that patient. How dare you attempt to hold me accountable for making a life-or-death decision about a patient I never examined!”
But that was precisely Dr. Dinter’s and Fairview’s defense in this case.
These facts raise three questions that I will discuss in more detail below:
(1) Who authorized Fairview hospitalists to deny admission to patients they haven’t examined?
(2) Since when is diabetes a reasonable explanation of fever, chills and an elevated white-blood-cell count?
(3) What role did financial incentives and micromanagement of doctors play in inducing Drs. Dinter and Baldwin to make such a serious error?
The first two questions are probably obvious even to non-experts. The third question is not, but it may be the most important question of the three. These questions were not before the Supreme Court, but they will, or should be, raised in the district court if this case goes to trial. I hope this case does go to trial; the public deserves answers to all three questions. If Fairview settles before trial, the public may never learn the answers to these questions.
Question 1: Who authorized Fairview hospitalists to deny admission to patients they haven’t examined?
The court shed no light on this question. It offered only this non sequitur: “Because Essentia did not have a hospital in Hibbing, it was standard practice for Simon and other Essentia healthcare professionals to seek hospitalization of their patients at the Fairview hospital.” (p. 4) Why is it helpful to tell us, “Because Essentia did not have a hospital in Hibbing….”? The court might as well have said, “Because Essentia begins with the letter ‘e’….” The court’s tortured non sequitur implies it has no idea why or when it became “standard practice” for doctors at the Hibbing hospital to deny admission of sick patients they haven’t seen. The lame non sequitur indicates the court is simply accepting Fairview’s fait accompli – its decision to authorize its hospitalists to slam the door on sick patients without examining them. The public deserves to know how such a toxic policy became “the standard” at Fairview.
As if that weren’t strange enough, it turns out the court is not alone in its passive acceptance of Fairview’s policy. The staff of the Essentia clinic also accept this “standard practice.” Consider this excerpt from the Court of Appeals’ opinion: “According to Dr. Baldwin, although she had admitting privileges at Fairview, her normal procedure was to have the Fairview hospitalist do admissions of her adult patients. Although she occasionally admitted her adult obstetrics patients directly, Dr. Baldwin stated that, for all other patients, if a Fairview hospitalist declined to admit a patient she thought should be hospitalized, she would either send the patient to Fairview’s emergency room or to a different hospital.” [2]
Again, we are reading tortured language. What sense does it make to say Dr. Baldwin has admitting privileges when she rarely “admits patients directly” and instead has to play captain-may-I with Fairview’s hospitalists and, if she doesn’t win the debate, she has to send patients to the ER or to “another hospital” (the nearest hospitals are 26 miles away in Virginia and 34 miles away in Grand Rapids)? What possible rationale is there for shipping sick Hibbing residents out of town when a perfectly good hospital exists in Hibbing? [3]
Hold onto your hats, we are still not at the bottom of the rabbit hole. It gets stranger still. This notion that it’s ok for hospitalists to refuse to admit dying patients they have never examined was reinforced by testimony by a hospitalist from Hennepin County Medical Center (HCMC), Dr. Meghan Walsh. Dr. Walsh was called as an expert for the defense. She testified that Dr. Dinter’s behavior was “consistent with the standard of care for a hospitalist.” Then, for good measure, she “opined that, even if Warren had been admitted to the hospital on the day Simon called Dinter, it is unlikely and doubtful that Warren would have survived her infection.” (p. 7)
Is that not Orwellian rhetoric? Let me repeat it: Ms. Warren was so sick she would probably die soon, but Dr. Dinter’s denial of hospitalization was “consistent with the standard of care for a hospitalist.” Is it just me, or is this “standard” inhumane? Shouldn’t the public have some say in whether this “standard” should prevail at any hospital?
Question 2: Since when is diabetes a reasonable explanation of fever, chills and an elevated white-cell count?
Possibly the single strangest aspect of this strange case was Dr. Dinter’s diabetes diagnosis. I am not a doctor, but based on my conversations with four retired primary care doctors, I am positive that one of the following statements is true: (1) diabetes never causes the symptoms Warren had; (2) diabetes causes those symptoms so rarely no doctor should list diabetes as the most likely explanation for them. One of the doctors I spoke to debunked Dinter’s judgment with this analogy: He said diagnosing “diabetes out of control” as the most likely cause of Warren’s symptoms would be like “you coming to see me with pain in your foot, and I diagnose a migraine headache.” [4]
Question 3: Did financial incentives play a role?
If Dinter had been the only physician to sign off on the erroneous diabetes diagnosis, and if Dinter were the only doctor to express the opinion that it’s ok for hospitalists to deny admission to patients without seeing them, we might seriously entertain the “bad apple” thesis, i.e., that one doctor, and one doctor only, should be held accountable for Susan Warren’s death. But two other doctors – Baldwin at Essentia, and Walsh at HCMC – approved of the erroneous diabetes diagnosis. Drs. Baldwin and Walsh, and the executives at the Hibbing hospital (and presumably of Fairview Health Services), also accepted Fairview’s practice of denying admission to patients that they haven’t examined. This suggests that the malpractice at issue here was caused at least in part by systemic factors, not just a defect in Dr. Dinter.
What might those systemic factors be? The most plausible is the set of financial incentives to which hospitals are exposed these days. Those incentives changed dramatically during the 1980s and 1990s with the spread of HMOs, in the 2000s with the spread of “pay for performance” (P4P) schemes, and in the 2010s with the spread of the “value-based payment” (VBP) programs unleashed by the 2010 Affordable Care Act. These health policy fads – HMOs, P4P, and VBP – gave hospitals incentives to reduce hospital use.
Of the many forms VBP has taken, the most widespread is the “accountable care organization” (ACO). The ACO was one of several dozen VBP “reforms” authorized by the ACA that allegedly lower costs without harming patients. “An ideal ACO will focus on keeping patients from entering a hospital and cost-effectively treating those that are admitted,” is how one expert puts it. ACOs, which are usually run by hospital-clinic chains, sign contracts with insurers (like Medicare and Blue Cross Blue Shield) that obligate them to share insurance risk. More than 1,000 have been established since 2010. Fairview and Essentia were among the earliest hospital-clinic chains to create ACOs. In fact, Fairview was promoting ACOs even prior to 2010 . Essentia, “which is accredited as an Accountable Care Organization by the National Committee for Quality Assurance,” . [5] Thus, by August 8, 2014, the day Susan Warren visited the Essentia clinic, the incentives created by ACO contracts – incentives deliberately designed to induce doctors and hospital managers to reduce the use of medical services – were operating within both the Fairview and Essentia systems. [6]
Are we asking too much of judges and juries?
The facts as they have been reported to us by the Court of Appeals and the Minnesota Supreme Court suggest that Susan Warren’s death was caused at least in part by systemic factors that didn’t exist three or four decades ago – before hospitals and clinics were owned by gigantic chains, and before those chains were subjected to immense pressure from insurers to reduce admissions to hospitals and otherwise act like an HMO.
Given the omnipresence and power of these systemic factors, lawmakers, malpractice attorneys, and the public must learn to ask as a matter of course, Should doctors who work under these toxic influences be the only suspects when patients are harmed? If the answer is no, then we must ask, How do we identify the other “tortfeasors” (legalese for anyone who bears some responsibility for harm done to another)? Malpractice trials have limits. We can hope that Justin Warren’s attorney has already forced the Fairview chain to turn over copies of its contracts with the Hibbing hospital and its hospitalists, and that those contracts will reveal any financial incentives or other requirements that might have contributed to Dinter’s decision. But we can’t expect a judge or jury in a malpractice trial to assess the role of larger systemic factors such as ACOs, merger madness within the hospital industry, micromanagement of physicians, and limitations on where patients may seek medical care.
That job falls to the experts and policy-makers who promote evidence-free “reforms” like ACOs, “reforms” which in turn encourage consolidation, micromanagement of doctors, and more limitations on patient choice. Ultimately that job falls to all us as citizens. It is not enough to hope that injured plaintiffs can find attorneys willing to sue, and that judges and juries will do right by injured patients. We must also demand a thorough public debate about all health policy “reforms” that put patients at risk.
[1] A hospitalist is a doctor employed by a hospital to manage the care of inpatients.
[2] The Essentia nurse, Sherry Simon, apparently didn’t get the memo that it’s ok for doctors at the Hibbing hospital to deny admission to Essentia patients. She let slip during her testimony that she thought the “protocol” or expectation that Essentia employees must play captain-may-I with Fairview hospitalists was based on “politics,” not common sense. Here is a revealing sentence from the opinion of the two Supreme Court judges who dissented in Warren v. Dinter: “Simon testified, ‘My understanding of the politics—or maybe politics isn’t the right word—was that all admissions at that point went through the hospitalists.’” (p. D-6)
[3] A mere three decades ago, patients were admitted to hospitals by doctors who had “admitting privileges.” These doctors would call the admitting office and give whoever answered the phone information on the patient and what floor the patient should be sent to. The person on the other end of the phone was not authorized to second-guess the admitting physician.
[4] Four physicians I contacted confirmed what I thought I knew to be true – that diabetes does not cause fever and high white-blood-cell counts. Readers who would like to research this issue for themselves may want to begin by visiting the Mayo Clinic website (see this page on the causes of high white-blood-cell counts and this one on the causes of fever )
When I asked one of the doctors if it would make a difference in his diagnosis if he knew that Ms. Warren had been previously diagnosed with diabetes (the court did not say whether this had occurred), he said yes, but only because infections can be even more dangerous in diabetics. Infections, he said, can “tip diabetics into ketoacidosis,” which can be fatal. In other words, if Dr. Dinter had been informed by NP Simon that Ms. Warren was a diabetic, that would not be reason to think Ms. Warren’s infection was caused by diabetes, but it would be even more reason to hospitalize her immediately.
[5] Fairview Health Services has set up several ACOs with six Minnesota insurance companies as well as Medicare. Its Hibbing hospital is part of Fairview’s Wilderness Health ACO .
[6] One final question: Why didn’t Ms. Warren go to the ER at the Fairview hospital, just one block away from the Essentia clinic? She was obviously very sick when she went to the Essentia clinic. Why did she go there rather than the Fairview ER? Was she afraid of being billed for an unnecessary ER visit if the hospital refused to admit her? If she had that fear, where did it come from? Did her insurance require her to go first to an Essentia clinic or hospital and not one of the clinics or hospitals owned by Fairview? Whatever the reason, Ms. Warren’s decision to visit the clinic rather than the ER may have been fatal. If she had visited the hospital ER, the ER doctors would have had to examine her. They might have reached the same conclusion reached by Simon, the only person who actually laid eyes on Susan Warren on that fateful Friday.
This is of course beautifully written. However, Ross, Kip and I had a conversation about it when he was writing it. We cannot make the link as easily as Kip between clear bad behavior by a couple of docs that probably killed the patient and the incentive existing at the time in those institutions. There are 1000 factors existing in those institutions or broader environments that might’ve affected the quality of Practice in this case. There needs to be some evidence. Like a letter from an administrator that said we cannot admit this patient because we will go over budget and lose a lot of money.Or a study like those that Kip and I wrote that suggested that readmission penalties raise mortality. But Ross and I had difficulty linking policies that we also dislike (incentives, ACO’s ) To a single death.
This is an interesting issue, however. It involves the nature and adequacy of evidence when you are discussing a legal case. Is it OK to ask a question and make the “defendants“ answer it? I don’t know. But it seems to me that any implication that a policy is involved in a death should have some evidence even at the individual level. It is a nice subject For debate. Steve
Steve and I didn’t discuss my article. We discussed the question, Have you ever heard of diabetes causing fever, chills, abdominal pain and high white-cell count? At the time I sent that question to Steve, there was no article to discuss. It was still an idea percolating in my head.
Let’s all stay focused on the actual article I wrote. I wrote that we must not jump to the conclusion that Dr. Dinter should be the only suspect in this case. As I believe any reasonable reading of my article will indicate, I also did not jump to the mirror-image conclusion that Fairview’s ACO or some other systemic factor should be the only suspect.
I said at least twice that this case “raises three questions worthy of extensive public debate.” I phrased each one as a question, not as a conclusion. Question three was: “Did financial incentives play a role?” Let’s not take up any more time debating whether the preceding sentence is a question or a declaration.
It seems like no one cares, and nobody is discussing in court that all 3 physicians said no to admission and all 3 diagnosed that patient with diabetes. One wrong diagnosis but all 3 came to the same conclusion . So what supreme court is saying is that you call me, tell me patient has a minor cut on his hand from paper, i say no to admission, tell you put bandaid, and patient dies from heart attack because you failed to mention chest pain and st elevation on ECG, and i get sued. Nice.
Very interesting take on this one Kip. Well written. The only problem is you are making one very important assumption: that the nurse practitioner told the hospitalist the right things about Susan Warren, when in fact there is a great deal of evidence she did not.
Therefore, the hospitalist is likely getting blame that does not rest on his shoulders.
According to the Supreme Court majority opinion: “There is a factual dispute as to what NP Simon relayed to Dr. Dinter and what Dr. Dinter advised… We thus assume that NP Simon relayed the relevant information to Dr. Dinter and asked him to admit Ms. Warren, that Dr. Dinter opined that Ms. Warren’s diabetes was the cause of her symptoms and did not require hospitalization for treatment, and that a physician exercising due care would not have rendered such an opinion.”
The Supreme Court admits to making this assumption and it is likely incorrect.
According to the dissent opinion: Susan Warrens complaint was that she “was exposed to welding smoke over the course of three weeks while she was working at Walmart.” When Simon called Dr. Ditmer to admit Susan Warren, she reported Warren’s exam “was essentially normal.” She reported Warren had a high white count, high glucose and low sodium. Simon shared “it was a confusing case.”
Basically, it looks like she called the hospitalist because Nurse Simon did not know what to do. In fact, when she went to her supervising physician, that physician agreed with Dr. Dinter too.
If physicians begin admitting patients for elevated white counts in the face of normal exams…. the nation will be having a fit because costs will balloon. Patients are not admitted with high WBC counts in the face of normal vital signs as a matter of practicing good medicine.
There is a great deal missing in this post about what actually happened and why Susan Warren died.
I will add one more point. In 2006, my father (also a pediatrician) and I resigned from the local hospital because we were forced to take these admit calls from nonphysicians and we were both acutely aware of the increased liability associated with doing this. If only Dr. Dinter had known how precarious a situation he was placed in by Fairview hospital…..
Niran,
If what you meant was that I assume the nurse communicated enough information to Dr. Dinter to justify admitting Ms. Warren immediately, you’re correct — I assume that’s true based on the facts reported by the two courts (the MN Supreme Court and Court of Appeals). If what you meant was I said the nurse told Dinter “the right things,” that would be incorrect. I didn’t say that.
I urge you to read the three opinions more carefully — the majority and dissenting Supreme Court opinions, and the Court of Appeals opinions. The facts I reported were reported by one, two or all three of those opinions.
I urge you to consider as well an assumption you appear to be making — that the burden of getting all “the right things” communicated to Dr. Dinter was entirely on the nurse, and that Dr. Dinter’s failure to learn that Ms. Warren had all the classic signs of an infection must have been the nurse’s fault. You appear to think the burden of proof was on the nurse, and that Dr. Dinter did his best to tell this incompetent nurse to speak clearly and for some reason she just insisted on being incompetent.
If you don’t have time to reread the opinions or respond again, I’ll respond at greater length later.
Interesting piece, John. Seems like pretty bad decision-making by the doctor. Agree with Soumerai: who knows if it was incentives vs. just plain bad doctoring.
Actually, no, I am not saying the nurse is at fault. In fact, I am not certain who is at fault exactly.
What I am concerned about is whether or not physicians should consult with anyone over the phone without seeing the patient? It appears physicians will now be at a higher risk of liability in light of this legal decision.
I did not call the nurse incompetent either. I was trying to call attention to the fact that the case was not straightforward for the nurse, the hospitalist or the collaborating physician. I do not think the fact the case was confusing makes any of them incompetent.
Furthermore, this case isn’t actually about incompetence at all. It is about how far medical malpractice liability can be stretched. Most of the cases used as “precedent” involved patients seeking out a professional opinion. This is very different in that one professional (the NP) sought out the opinion from another professional (the doctors) and then all three were liable for wrongful death.
Do you think this will help medical collaboration? I don’t believe it will.
Furthermore, anyone who says its “the doctors fault” is no better than one who says its “the nurses fault.” This case is about “foreseeability.”
Niran,
Now we have several issues going. Let me focus on the latest one you raise — your concern that the MN Supreme Court’s decision exposes doctors who merely offer advice to other doctors to lawsuits.
First, the MN Supreme Court did say this case is limited to hospitalists. Here is a quote: “Our decision today should not be misinterpreted as being about informal advice from one medical professional to another. This case is about a formal medical decision—whether a patient would have access to hospital care—made by a hospital employee pursuant to hospital protocol. We decide only that hospitalists, when they make such hospital admission decisions, have a duty to abide by the applicable standard of care.”
Second, I urge you to focus your irritation less on the court and more on those in the insurance and hospital industries and the managed care movement who contributed so much to this sick system — a system that herds doctors into huge corporations where they can be exposed to financial incentives and micromanaged, puts hospitalists in untenable positions, exposes patients to risk, and forces our courts to choose between the lesser of two evils.
The awful position Dr. Dinter found himself in is a vivid illustration of the hostile environment that insurers and hospital chains, egged on by managed care theologians, have created. Why did the Fairview hospital in Hibbing — and presumably the chain that owns that hospital — adopt a policy of (a) refusing to grant Dr. Baldwin or other doctors at the Essentia clinic admission privileges and (b) giving virtually all authority over admissions to the three hospitalists at the Hibbing hospital? Doesn’t that policy bother you? Do you accept it? I don’t. I think it’s nuts. It puts good doctors at risk of malpractice suits, and it puts patients at risk.
Note that I’m not saying the advent of hospitalists in the 1990s was nuts. I’m saying the combination of a and b above — Fairview’s policy of refusing to let Essentia docs admit, and placing nearly all power to admit on busy hospitalists — is nuts. Those facts were not disputed.
Now consider what happens if we introduce into this risky situation financial incentives — incentives designed to induce Dr. Dinter not to admit patients imposed by powerful third parties (insurance companies, CMS, Minnesota’s Medicaid program, Fairview’s ACO). Have we not created the perfect storm?
Don’t you agree the public needs to know what role third parties (insurers, chains, chains dressed up as ACOs) played in causing Dr. Dinter’s error? I’m pretty sure the answer is yes.
Kip
Kip, I will try to address each point you brought up. I am not a lawyer but I think it is naïve to believe this ruling will only apply to hospitalists, when there are ER physicians, specialists and others to be sued by patients. Trial lawyers will not say “I won’t take this case because only hospitalists have this informal consult liability.”
Second, the insurance and hospital industries were given an enormous handout in 2010 with the ACA. So the government involvement in healthcare steered the ship farther astray.
To answer you: a) in general primary care physicians no longer take care of hospitalized patients because they cannot keep up with their clinic duties especially in light of all the red tape associated with EMR systems and the like. Most do not want to have privileges at multiple hospitals because they could never keep up.
b) Hospitalists don’t actually have “authority” to reject admissions because that is not how the system works. If we have serious concern about a patient, they are sent to the ER, the ER doc evaluates them, makes a decision to admit or not admit and that is the end of the story. The policy doesn’t bother me because I face it EVERY SINGLE DAY and there is nothing I can do about it. Every primary care physician in the country is stuck getting rejected for direct admits too. This is healthcare and it will worsen once a nationalized system is put in place, because the decision making will be taken out of our hands.
You are right the perfect storm is the powerful third parties (including CMS) which will not pay for admits that are not sick enough, so there is financial incentive to deny admission.
And yes, the public needs to know, which is the reason I write about what is happening on the front lines.
In all fairness, if you have not seen the medical details of this case, they were not straightforward and any physician who tells you this was a “slam dunk” is not being honest. It’s easy to diagnose conditions in hindsight, but Susan Warren was not a simple open and shut medical sepsis case.
I agree with your first point, Niran. This relatively narrow decision may be tested by lawyers suing on behalf of patients injured by decisions made by doctors who are not hospitalists. However, the question we all have to ask is, Under what circumstances would non-hospitalist doctors make life-and-death decisions about patients they haven’t seen that cannot be reversed, at all or in time, by the doctor or nurse who called the “consulting” doctor?
Offhand, the only other circumstances I can imagine would be doctors who work for ACOs, HMOs or other insurance companies who refuse to authorize services requested by doctors even though they never examined the patient. But wouldn’t you be delighted to see those ACO/HMO doctors exposed to lawsuits? I would. In fact, I believe exposing those doctors and the companies they work for to liability is a long overdue antidote to the spread of third-party interference in the doctor-patient relationship.
If you don’t accept the court’s decision, what is your solution? Do you propose to give doctors employed by hospitals carte blanche to deny care to sick patients without fear of accountability? This Warren v Dinter case begs for an answer to that question. That’s why I thought it was worth writing about.
Here’s my answer: Explore the extent to which, and means by which, the big hospital-clinic chains, possibly in cahoots with insurance companies, are forcing doctors to choose between the interests of their patients and the interests of the corporations they work for. I hope this case ultimately sheds some light on that question (although I fear it won’t because I suspect Fairview will settle before trial).
Re your second point: Your argument that hospitalists don’t have authority to reject admissions might be true for many hospitalists. But it does not appear to have been true in Dr. Dinter’s case. The facts of this case, including the twisted language Dr. Baldwin used to describe her alleged “admission privileges” at the Hibbing hospital, strongly suggest Dr. Dinter was given explicit authority to deny admission requests.
By the way, I understand why physician care got divided into inpatient (hospitalist) and outpatient care a quarter century ago. I’m ambivalent about that development, but I understand why it happened.
Re your last point that this case is not a “slam dunk.” I don’t know anyone who thinks this case is a “slam dunk.” I showed my article to four doctors, including one Minneapolis hospitalist, and a lawyer before sending it to John for posting here. They all agreed with the MN Supreme Court’s decision, and all agreed Justin Warren has a strong case. None called it a “slam dunk.”
Based on the facts we have before us (and we may not have all the facts), I would bet Fairview will settle this case just as Essentia did. But I hope they don’t. I’d love to see this go to trial so we can find out what role, if any, the Fairview hospital and the Fairview chain of hospitals played in Dr. Dinter’s error. I guess we’ll never know what role, if any, the Essentia chain had in causing Dr. Baldwin’s error.
We Hospitalists often prefer patients do not be directly admitted to the hospital floor for many reasons. 1) acutely ill patients can sometime wait over a day for direct admission bed to become available. The hospital gives priority to patients in the ED, or post surgery pts 2) there is concern when I accept a direct admission I’m not told the correct information and the patient is placed in the wrong area of the hospital. I.e sick pt after waiting a minimum of several hours on average (can be over 24 hours during busy season) is admitted to a normal floor. By the time the patient does arrive we have to wait more time to have labs imaging even simple vital signs completed. So now a very sick pt is on a floor we’re they are not appropriate, think about a floor where nurses have 5:1 ratio instead of 2:1 3) another issue is the on call physician that accepts the pt is rarely (due to waiting for a bed) the physician that is on call once the pt arrives. Sign out from the nurse that saw the pt in clinic may never make it to the actual admitting physician.
I could go on. The appropriate response for any clinician seeing a sick pt in clinic that is denied direct admission by an accepting physician is to send the pt to the ED.
Poorly controlled diabetes and high blood glucose can most definitely dehydrate a pt causing multiple physiologic abnormalities including leukocytosis (elevated wbc), electrolyte disruption, and acidosis to name a few.
Excuse any typos, completed after a 12 hour Hospitalist shift.
Thank you Eric for helping make this point. I find hospitalists more often than not will not accept direct admits. In fact, I cannot remember the last time they accepted a patient directly to the floor. Sometimes the patient is too sick, there are no beds, or more workup is needed. This case bothers me on on so many levels, the least of which being the issue of refusing a hospital admit, because it happens every day.
CMS has set which diagnoses qualify for hospital admissions.
When a glucose is 400+, and Hgb a1c is over 11, I can certainly imagine why the case could be “mistaken” as exacerbation of diabetes, but I guess physicians are supposed to use crystal balls more often.
This is helpful information, Erik.
If Dr. Dinter had told the nurse to send Susan Warren to the Hibbing hospital’s ED, there would be no lawsuit. But he did not.
A hospitalist working for Abbott Northwestern, a well respected hospital here in Minneapolis, testified that Dinter violated the standard of care for a hospitalist. This hospitalist’s testimony suggested he would have concluded otherwise if only Dinter had said to Simon, “Send Warren to the ED.”
Here is an excerpt from the MN Supreme Court’s decision about that testimony: “The plaintiff’s expert was Dr. Benjamin Whitten, a board-certified physician in internal medicine practicing with Abbott Northwestern General Medicine Associates with expertise as a hospitalist. Whitten opined that Dinter’s actions breached the standard of care for a hospitalist. He also opined that, had Warren been hospitalized for evaluation and treatment, it was highly likely that her infection would have been diagnosed and treated, and that she would have survived with no significant disability.” (My italics)
Dinter’s behavior is baffling. How hard would it have been for Dinter simply to say, “I can’t diagnose this case over the phone, send Warren to our ED”? He didn’t do that.
Dr. Dinner never saw this patient. It’s not his responsibility to diagnose a pt he hasn’t t seen!!!
Send the pt to the ED if you are worried.
Note: Medical experts are board certified physicians with an opinion. No more, no less. They can be right or wrong. They also can have differing opinions; hence, a plaintiff’s medical expert’s opinion can differ from a defendant’s medical expert’s opinion. And they will be well-respected, board certified in the same specialty. So Dr. Whitten is not unique nor his opinion the gold standard. I’m not a hospitalist, but I disagree with his opinion. He is also wrong in stating that diabetes cannot cause an elevated white count.
You seem fixated on Dr. Dinter’s failure to tell the NP to send the patient to the ED. I’m baffled by you. The NP could have sent the patient to the ED, she’s not helpless. Why doesn’t it bother you that the NP has no culpability in this awful outcome, especially in an “independent” state? This is exactly why there are advocacy groups fighting the unsupervised practice of NPs…because of cases exactly like this. They have no training in medicine and this NP did not recognize the patient was as sick as she was. Yet, this “independent” NP is not held accountable. But the doctor, who never saw the patient, was expected to be clairvoyant and should have known what to do. Absolute nonsense.
It was highly disappointing to see Kip’s well-written, and well-reported, article suddenly turn into an unsubstantiated sleight of hand rant: “See, it’s the ACO!” As a former journalist, allow me to say this is the problem with blogs. No editor would allow Kip to blame the ACO incentives without confirming that Ms. Warren was part of an ACO. Indeed, if she were a diabetic often out of compliance and an ACO member, odds are that the ACO would have had her hooked up with a care manager and this would not have happened. Combine these facts with the medical opinions in the comments above, and you get someone who simply didn’t care to be careful enough. Here’s the deal, Kip: no matter what you’ve written in the past, each article you write has to earn its own respect. This one starts off doing so, but ultimately fails.
Michael,
Kip has written excellent articles about why ACO’s are utter and complete failures. He is right. They fail to save money, which is the reason they were created in the first place.
First of all, Warren was not a “known” diabetic. Based on her lab results, she obviously had had diabetes for a few months at the very least, possibly longer (one cannot really get a result of 11+ otherwise.)
As a journalist, why would you say Kip is not careful? He researches extensively before publishing. Your comment about not caring to be careful does not add to the meaningful discourse on this important subject. If you were a physician, your Press-Ganey scores would be in the toilet.
Let me make it simple…
1. One cannot have a care manager when they have not been diagnosed with diabetes, can they? Hint:The answer is no.
2. Even with a care manager, would out-of-control diabetes have been prevented?
Hint: The answer is no.
3. Kip is absolutely and unequivocally right about the uselessness of ACOs.
Hint: The answer is yes.
What I disagree with Kip about is: 1) this is not a straightforward medical case and his four friends likely do not know the details of how Ms. Warren presented clinically or they would not have answered the way they did.
2) A single payer system will make the hospital bottleneck worse and not better.
3) Hospitalists refuse “direct” admits as a matter of efficiency more than money. This happens every single day in the US. I don’t know why it is so surprising. Primary care physicians send patients to the ER because that is the best way to get the patient care they need. Often there are not enough hospital beds to accommodate direct admits, but we have “certificate of need” laws to thank for that (also created by the government.)
4) extending liability to “curbside consults” (which this conversation between two health professionals was in reality) makes things worse. This case gives physicians reason to stop providing informal telephone advice to practitioners over the phone and that is precisely the lesson to be learned here.
Michael, could you quote the sentence or sentences where I said, “See, it’s the ACO!”
You dodged the central question. Was Warren an ACO patient? If she was not, then I don’t understand how the mention of ACO contracts is relevant. It’s like asking what role did Medicare reimbursement policies play in the treatment of a patient who’s not on Medicare.
This kind of case was inevitable. I’m concerned about a few things in this article. It does appear to me that assumptions are being made about the guilt of Dr. Dinter. I agree with Dr. Al-Agba, no one, including the Supreme Court, knows how this patient was presented to him. Did the nurse practitioner(NP) know that she was seeing a very sick patient? Did the patient appear ill(failed the “eye test”)? Did she convey that assessment appropriately to Dr. Dinter? Most people do not appear rosy and well when septic. They look like crap. How do I know? Because I’m a board certified emergency physician who has been practicing EM for nearly 24 years. I’ve seen patients in various stages of sepsis multiple times.
Here is where I take issue. Blame the docs(who never saw the patient), blame the system but the person who made the decision to send the patient home? No accountability. Minnesota, I believe, is an “independent” state for NPs. If so, then why was this NP required to have a “collaborating” physician? Was it mandated by the clinic/hospital or her malpractice insurance company because she was a risk? If so, why? Either one is independent or one isn’t. It is for this reason, I do not use the term “collaboration” when it refers to my relationship with non-physician practitioners(NPPs). They are either supervised or unsupervised. This particular NP was unsupervised. What she had was a very loose supervisory relationship(“collaboration”) with a physician somewhere in the state of Minnesota.The NP is not a physician; however, she is allowed to practice independently as if she is…until the &^*% hits the fan. Then everyone looks for the person with the most expertise in medicine to blame, they seek the physician. Even if that physician was no where in the vicinity when the patient was seen. I submit that is the case here. According to the so-called hospitalist expert, the hospitalist did not meet the standard of care. Welp, difficult to meet that standard when one didn’t see the patient.
Why is this OP not asking why a NP did not recognize sepsis, but instead called both doctors based on a white blood cell count? What did the rest of the blood tests demonstrate? For those who don’t know, it is possible to have sepsis and have a completely normal white or even low white blood cell count. It is also possible to have an elevated white count with diabetes and no sepsis due to “demargination”; the release of white cells due to stress, illness and/or diabetic ketoacidosis(DKA) or new onset diabetes. It appears that the patient was never diagnosed with diabetes, so was this the first presentation of that disease? It could have been, in which case, I reiterate, she would have looked like crap. It is exactly for the reasons I have described above that one should not treat the lab but treat the patient. Instead, she called two physicians, neither of whom was looking at the patient, gave them information about the patient that may or may not have been complete(we will never know because no one cared to ask) and followed their advice instead of sending the patient to the ED. Oh yes, she could have done so whether or not the physicians agreed…because she is “independent”. Was she deemed to have met the standard of care? If so, which one? Nursing or medicine? Because if it was nursing, she should have been supervised. If it was medicine, then she was practicing medicine without a medical license. Which is it? Did anyone ask? Of course not.
Bottom line, that patient should have been evaluated by a physician. Sepsis does not occur overnight, it brews. If the NP wasn’t sure about what was in front of her, she had an obligation to ask the collaborating physician or a doctor in her clinic to come look at the patient. She didn’t. Had I been Dr. Dinter, I would have told the NP to contact her “collaborating” physician and discuss the case with her. Or if she believed that the patient needed to be in the ED, to send the patient there. Then I would have hung up the phone. Instead, he listened to her perspective of the story and gave advice. And his fate was doomed. In EM, we do not give advice over the phone for a reason. We could be wrong, it all depends on who is telling the story from the other end. One cannot rely on that information, especially if one does not know that person. It is a liability-in-waiting. But even in worse, it could be death-in-waiting for a patient who might not get appropriately assessed or treated.
My heart goes out to this family. May this matriarch RIP.
The Dr’s argument that he was just “giving an opinion”, but did not actually accept or prevent her admittance, absolutely does not pass the smell test. He was in a position of power, and from the description of the phone call with the nurse practitioner in the article it is extremely clear he wasn’t just “offering an opinion”, but was in fact denying admittance.
Honestly, I feel awful for the patient and her family, but I also feel awful for the NP who tried to do the right thing but was shot down by those with greater seniority than her. I hope her employer changes their training so that if something like this happens in the future that they just tell the patient to go directly to the ER.
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The NP in this story is one of the people that fucked up. A, because she should have sent them to the ED. B, because hospitalists have nothing to do with the ED, and she was trying to /bypass/ the ED. C, because she didn’t need her supervising physician’s permission to send the patient to the ED. D, just for kicks, diabetes absolutely causes a white count bump, especially during uncontrolled episodes, with the degree of one correlating to the other – something every med student is expected to know, and it’s ridiculous that the NP didn’t.
“Legally motivated to do the right thing”? She’s significantly more guilty than the hospitalist, who is a red-herring in this entire discussion (“I’m not the ED attending. Send her to the ED. The ED attending decides who gets admitted for non-elective admissions. Also, she might need urgent care, so she shouldn’t wait the 12-24 hours hold-up that would occur if I admitted her directly.” would have been the response of any hospitalist I’ve worked with) and yet he’s vulnerable to a malpractice suit, and the NP is not. What legal motivation?
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Unfortunately, it’s more complex than that. I’m a hospitalist at a pair of community hospitals that don’t have some services (cardiology, vascular surgery, neurosurgery, ophtho, etc). I’m used to calling the specialist at our associated academic center when a possible acute problem related to those specialities may be happening. If those specialists now refuse to do “curbside” phone consults because they can’t see the patient and now can get sued, these patients are in a bad position. The tertiery hospitals here are constantly full and I can’t transfer patients that don’t have immediate true emergencies.
This opinion is a major loss for patients. And I also used to “decline” direct admissions based on phone consults, telling outpatient AP/NPs what I thought would be a reasonable course of action and follow-up. Will simply say “sorry” on the phone now and tell them to send the patient to the ED, where the costs are very high. This will simply jack up the cost for everyone else.
Not saying the MD in the news article had a reasonable opinion. But spend a single day with me in our busy hospital, see just how tricky this profession is, and you might be convinced that I need more legal protection, not less.
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I reiterate, MN is an independent state. “Independent” means exactly that.This is the law the NPs fought for and won, citing they can do everything primary care physicians can do. The NP had no one in authority over her. She called the hospitalist because she apparently wanted the patient admitted TO THE FLOOR. But she called the wrong person because the patient was septic and needed to be in the ED and subsequently the ICU. The patient should have been sent to the ED pronto–THE NP DID NOT HAVE TO CALL ANYONE NOR WAS SHE REQUIRED TO. By doing so, she delayed care to the patient. It is why I know she didn’t realize how sick the patient was. In addition, two physicians felt the patient could go home. Which tells me that her presentation to them must have been incomplete. Do you really believe if she had told them the patient was septic they would have sent her home? Their mistake was in believing that the NP was accurate in her assessment of her patient.
Plenty of primary care physicians have sent patients to me in the ED, suspecting their patient may be very ill, even if they were not sure what was occurring. They did not try to bypass the ED and get them admitted to a floor simply because they recognized that the patient could deteriorate rapidly at any time and needed to be assessed and managed in an acute care setting. This NP did not recognize this.
Now a recent law has passed, I believe in Minnesota or Missouri, that physicians giving curbside consults to NPs can be sued by patients if the advice is deemed to be wrong and/or inappropriate. THE PHYSICIAN DOES NOT HAVE TO HAVE A PREVIOUSLY EXISTING RELATIONSHIP WITH THE PATIENT. Be prepared for the number of physicians giving advice or recommendations in and outside of medical facilities to drop significantly. All over the U.S.