Litigation in the Field of Pain Medicine: An Expert Interview With Timothy Deer, MD

Thomas R. Collins

February 19, 2010

February 19, 2010 — With the practice of pain medicine coming under increased legal scrutiny, organizers at the American Academy of Pain Medicine 26th Annual Meeting, held February 3–6 in San Antonio, Texas, turned to a mock-trial format to educate physicians about litigation issues.

In this scenario, the "defendant" was accused of giving an injection that caused anoxic encephalopathy. The verdict from the jury — the AAPM audience — was "not guilty." Medscape Neurology & Neurosurgery spoke with meeting cochair and session moderator Timothy Deer, MD, who is also the president and CEO of the Center for Pain Relief in Charleston, West Virginia.

Medscape: This was an unusual format for a session. Why was a mock trial chosen?

I think physicians can be lectured to about these issues, but until you actually see them in action and you see the legal issues at hand, you don't really understand the process. Sometimes, the process, if you're not familiar with it, can confuse physicians and might make them less likely to be able to relay the true facts of the case. So here they get a [sense] of what that setting may look like, if they're ever in it, God forbid. I think it helps the physician learn the process. The facts are the facts. The facts won't change. But the process, the way you deal with that process, is critical.

Medscape: What are the legal issues that are under the most scrutiny for the pain practitioner?

Tort reform hasn't occurred in the United States, despite all the healthcare reform, so right now, certainly if a plaintiff wants to file a case, they can. Physicians are always in danger of that. The main legal issues are 2. One is protecting yourself when you give good care and you're accused of doing bad things. Obviously, you don't want to lose a case when you do the right things. The second is the fact that many physicians practice defensive medicine because they're worried about litigation, and that increases the cost of medicine. So it's a double-edged sword. You get sued for things you don't do wrong sometimes. On the other hand, you may do things you shouldn't do where you overdiagnose or overtest people.

Medscape: In what kinds of procedures and treatments are malpractice judgments most common against pain practitioners?

Most common are medication issues, someone having an adverse reaction to a medication given. That's the most common. The second most common is an adverse reaction to an injection.

Medscape: How well do you think the pain-medicine community has responded to this increased legal scrutiny?

I think the best way to respond to legal scrutiny is to educate yourself about the techniques and procedures you're doing. So physician education is how we're responding. We're doing a better job clinically. We're doing a better job of training fellows. We're doing a better job training young people who are coming out of their residency. And people are getting continuing education. You don't avoid this by anything other than getting your best outcome. That's how you avoid this, and being aware that you need to manage complications when they occur.

Medscape: The physicians who are educating themselves are here, but there are a lot of practitioners who aren't here and aren't educating themselves. In general, how well do you think physicians are educating themselves?

I have a propensity to go to meetings like this, to learn more about techniques and appropriate patient selection and care. So I applaud [meeting attendees]. But those who don't [attend] because of limitations in call coverage or trouble getting away from their practices, I would encourage them to [use] some other method, either computer-based education or CD-ROM-based education. There are other ways to get this training if you can't make it to a meeting.

Medscape: What can physicians do in their own practices to protect themselves?

You document well, select patients properly, and do what's correct for the patient. Focus on outcomes, not on defensive medicine or money-driven things you shouldn't be doing. I think good medicine is the best protection for bad outcomes in litigation.

Dr. Deer reports receiving consulting fees from Bioness, Codman, InSet Technologies, St. Jude, and Stryker.

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