Warren v. Dinter - More Implications Than Malpractice Law

I have few comments about this case that is written about from the perspective of malpractice law and the implications for informal consultation.  In this case, Richard Dinter, MD was a hospitalist employed by one of the main hospital systems in Minnesota.  By way of background, over the past 20 years most hospitals in the United States are now staffed by hospitalists who are generally internal medicine or family medicine trained specialists dedicated to admitting people to hospitals, treating them while they are there, and discharging them. In the overall history of medicine this is a fairly recent movement.  Before hospitalists, this function in most hospitals were covered by rotating assignments of staff from these departments or in the case of some private practices - the practitioners would see anyone from their practice admitted in the AM and see their clinic patients in the afternoon.  The hospitalist movement seems to have developed to create more efficiency in the system but an undoubted byproduct has been less personal care by physicians who don't know the patient as well, more control over physician practice by business entities, and an increase in the amount of care delivered by proxies or physician extenders.

In this case Susan Warren presented to a clinic in Hibbing Minnesota with abdominal pain, fevers, and chills. She had an elevated white blood cell count. The nurse practitioner seeing her called the hospital system where the call was randomly assigned to Dr. Dinter. The question was whether or not the patient should be hospitalized.  Hospitalization was not recommended and the nurse practitioner did not seek the hospitalization on her own. The patient was discharged home and died of sepsis. The family sued both the physician and nurse practitioner.  In Minnesota nurse practitioners can practice independently without physician supervision.  Reversing prior precedents, the Minnesota Supreme Court ruled that a physician-patient relationship was not necessary for a medical malpractice claim. Instead they established a new standard of reasonable foreseeable action. In other words, a malpractice claim could be initiated if harm suffered was a “reasonably foreseeable action” of a physician’s actions.

Amici curiae briefs were filed by the Minnesota Medical Association partnering with the American Medical Association and separately by the Minnesota Hospital Association. The main arguments were that this standard would stifle collaboration and informal consultation and that might possibly lead to patient harm. The most shocking result of this court decision is that a physician can be sued without any formal physician-patient relationship.  On the surface it all seems to be a standard malpractice issue complicated to some degree by new treatment relationships. But are there larger issues here. The fact that the Minnesota Hospital Association filed an amicus brief suggests that there are.

Minnesota has had the highest penetration of managed care organizations of any state for a long time. Practically all of the care the state is managed by three major healthcare companies who dominate the market. They have their own standards organization that sets guidelines and standards for certain practices in the state. A good example would be the Diamond Project that led to the state government adopting a standard that they would collect depression rating scale scores as a proxy for the quality of depression care being delivered in primary care settings in the state.  This was an early form of “collaborative care” that is currently being pushed by several organizations. In collaborative care for psychiatric purposes, a psychiatrist reviews charts, rating scales, case manager notes, and possibly primary care physician notes and makes a recommendation for a specific treatment. The original Diamond Project focused only on depression and antidepressant prescriptions. I attended the APA sponsored course on collaborative care and learned that according to some standards all psychiatric disorders can now be treated remotely without seeing the patient.

Managed-care organizations and every healthcare plan has a vested interest in providing this type of care to their patient-subscribers. For the past 20 years they have been putting “physician extenders” in hospital and clinic settings with varying degrees of supervision. Many of these personnel like nurse practitioners can now practice independently without physician supervision. The only way physician supervision occurs in many cases is because of local rules within the health plan that employs the physician and the physician extender.

I have seen tremendous variation in how physicians work with nurse practitioners and physician assistants. In one case, I saw a physician working with four nurse practitioners in an outpatient clinic and in half a day - they would see 40 to 60 patients. The incentive for that arrangement was the physician would get the “productivity” numbers.  The organizations call this “population-based medicine” for the emphasis on treating large numbers of people rather than individual patients.  Of course for physicians, there is really no such thing. Seeing large numbers of patients, even with nurses, nurse practitioners, or physician assistants - should not reduce the amount of information needed in the time needed to make decisions and recommendations in that person’s best interest on that day. Some organizations have triage systems in place even before patients see anyone. I wrote about one of those systems four years ago that led to the inappropriate care of an 80-year-old man after a fall.

This court decision is really a managed-care friendly decision in that it affirms a system where physicians have no direct contact with patients but are responsible for the outcomes. Like managed care health systems, the court is basically saying that physicians can direct healthcare provided by nonphysicians remotely. The implication here is that the quality will be the same. A further implication is that the healthcare company does not end up appearing to be a two-tier system, staffed at one level by physicians and at another level by nonphysicians. That would not allow for the indiscriminate draping of quality banners over all the buildings in a certain organization.

Some people see this court decision as a “guild issue” or scope of practice issue.  I have already seen arguments about physician extenders replacing physicians and healthcare organizations and the implications of those maneuvers. Since nurse practitioners can practice independently - this is about physician supervision or collaboration available in health care settings that assume physicians can operate that way.

From a strategic standpoint, this decision points out that you may not be able to ration physician expertise on the one hand and avoid negative clinical or legal outcomes on the other. The average patient does not appreciate this effort until they realize that significant medical care has been denied and the physicians treating them are powerless to advocate for them. Although this case has not been litigated in a civil hearing - the ground rules have been suggested. In this case we have a nurse practitioner who according to Minnesota state law is licensed to practice independently without physician supervision. That nurse practitioner contacts a physician to discuss the case and the physician is implicated in the outcome. Managed-care organizations have successfully used this dynamic for years. The clearest example is the imposition of case managers in hospital settings telling physicians when they must discharge patients based on business rules rather than medical indications.  Another common example is the “physician reviewer” who reviews medical care remotely without any direct knowledge of the patient and makes a decision on whether they should be discharged from the hospital or not. In that situation physician reviewers are immune from liability according to federal law. Warren v. Dinter shows that there may be no such exemption for physicians working in healthcare organizations who provide consultation about medical care and hospital utilization.

Once physicians were sufficiently undermined so that their opinion carried no more weight than nonmedical business personnel, healthcare businesses were able to dictate medical care they way they wanted to. That direction is generally to make a profit and in the case of publicly held companies - to make as large profit as possible to satisfy their shareholders.  

This decision suggests that there may be no protection from civil litigation similar to the federal immunity for business physician reviewers for any working physician making recommendations on the basis of the same limited data.

George Dawson, MD, DFAPA