On Nursing Home Transfers and Liability Reform


Several times in the past few days we have gotten ambulance runs from the nursing homes in the middle of the night to evaluate elderly nursing home patients for “unresponsiveness”. When the “unresponsive” patients arrive, they are at their baseline mental status and, after the obligatory workup to rule out the bad causes of “unresponsiveness,” nothing is wrong with them.

Is “unresponsive state – rule out REM sleep” a legitimate discharge diagnosis?

Then, last night we got an 82 year old COPD patient by ambulance from a nursing home who was having “severe shortness of breath” and “hypoxia”. Her oxygen saturation was in the 70s in the nursing home (normal is in the 90s) and she was “dusky,” prompting the ambulance call.
When she arrived by ambulance, with her usual oxygen settings on the nasal cannula, her saturation was a respectable 92% – an acceptable value for a COPD patient. Was her shortness of breath and hypoxia due to some acute underlying medical disaster?
Fortunately, I like to talk to the EMTs when they bring in the patients. In this case, the patient’s nurse told them that the patient took off her oxygen to go outside and smoke a cigarette in the cold. She enjoyed the first cigarette so much that she had a second – while her oxygen canister waited longingly for her inside the nursing home. She may have gone for a third and turned into a smokesicle, but her nurse noted the lonely oxygen canister in the hall and investigated, finding the patient standing out in the cold.
Now of course none of this was written in the transfer papers and we had to call the nursing home to verify the story. The patient’s nurse had left for the evening and the nurse that was there had no idea about the patient, so we had to call the previous nurse on her cell phone at 11:30 at night. She didn’t answer her cell, so we had to call her house. Oh, and don’t forget the obligatory emergency department testing just so that we can prove that the patient really is at her baseline before sending her back – just in case she wakes up dead the next morning.

All this because granny wanted a couple drags from a Marlboro.

Kind of ridiculous, huh?

Although I get frustrated by what some people perceive as “bullshit nursing home transfers,” I also find myself bowing to the same pressures that nursing homes have when I see the patients in the emergency department.

How often does any emergency physician look at a frail elderly nursing home patient who complained of shortness of breath and not order any testing? I’ve done minimal workups on some patients (including Granny Marlboro above) and have had people tell me that I am lugging a couple of coconuts around in my scrub bottoms for not doing a million dollar workup on all the nursing home patients … and even for sending the patients back to the nursing home when they come in with vague complaints.

If a patient complains of shortness of breath in the nursing home and the nurses don’t send the patient for evaluation, the nurse and the nursing home will be investigated by all the clipboard brigades and would likely be sued if the patient suffered a bad outcome.
Similarly, if I don’t do a thorough emergency department workup on a nursing home patient with a vague complaint of shortness of breath or weakness or fleeting chest pain and the patient has a bad outcome after their emergency department visit, all the people who wouldn’t have the gonads to make a prospective decision about what care to provide to the patient would have no problem retrospectively questioning whether my care was adequate and appropriate. They might even make up retrospective assertions about why much of the negative testing I performed was “unnecessary”.

What’s the bottom line in megaworkups for minor complaints? Fear of liability. Some of us have less fear than others, but that fear still drives a whole lot of medical spending.

Just another reason health care reform will not never go anywhere without liability reform.


  1. But what about the one patient (a young child lets say) in a blue moon you get who arrives to the ER with vague complaints from the mom of listlessness, lack of appetite, and a mild fever? Upon questioning her further you find that she’s been doing some moving with her parents into the country until the day before. If you were in the quick 1-over mentality, you’d probably write it off as jet lag or adjustment to different water contaminents.

    Then she comes in the next day with a fever of 104 and bloody vomit. You do a full workup and discover she has a viral hemorrhagic fever and promptly dies a few hours later.

    Even though this is a made up story…paraphrased from “Executive Orders” and it was specifically Ebola…it could still happen. You’re asking where the bottom line is? The better question is, when do you stop treating 99.99% of of people like they’re the .01% that actually need it?

    I don’t have the answer but I think there needs to be a little bit of common sense to it. Do you really think you need to run down a nurse’s story about her smoking and leaving her oxygen tank? Isn’t it obvious that that’s why she had low O2 sat before *putting the tank back on*? Furthering my analogy, do you get dressed in a full level 4 biohazard suit for every patient because one might possibly have some infectious viral? No…because it’s common sense that it’s unlikely.

    • “The better question is, when do you stop treating 99.99% of of people like they’re the .01% that actually need it?”

      When “there was only a one in ten thousand chance” becomes a valid defense to medical malpractice. I’ll give you an example – the standard of care in a spontaneous headache that is maximal at onset in a person who does not have a history of headaches is to do a CT and then a spinal tap if the CT is negative in order to find a sub arachnoid hemorrhage. The incidence of SAH is 6 to 8 per 100 000 person-years. So lots of money is being spent to find a very rare animal. Even more rare is the fact the spinal taps are done for the possibility that the CT missed the bleed (which happens between 5 and 15% of the time). So, thousands of lumbar punctures are done every year to find something that occurs once in every 100 000 person years…

      • At this point how effective would liability reform be? Something needs to change but I doubt simple changes would magically fix things.

        If the standard of care has you running an expensive test (that you happen to have and can bill for it), would that change if it was harder to get sued? Does the standard of care exist because of the test (equipment), the liability, the evidence or some combination? Does the standard of care actually create liability?

        In other words, if this patient went to an urgent care facility, would they be sent to an ED for a CT and LP? Or would they just be examined, treated and referred for additional care?

        Liability may drive doctors to do tests. But those tests result in equipment sales. Somebody has to run those tests which results in jobs. A very tangled web.

      • “In other words, if this patient went to an urgent care facility, would they be sent to an ED for a CT and LP? Or would they just be examined, treated and referred for additional care?”

        If they presented as above, they would be transferred (assuming the UC is meeting the standard of care). The problem here is one of perception. One of the few things Matt gets right is that the actual chance of a significant lawsuit being filed against any given physician is small. However, the effect of that suit, even if eventually dropped or ruled in the physician’s favor, is monumental. Over the past not so few years, the perception of this liability (as well as the actual effects of a suit on a physician) have increased dramatically.

        Unfortunately, this perception is augmented by the fact that in 40% of all filed cases, no medical error occurred. In 25% of those cases without merit (or, in other words, in 10% of all cases filed) the physician’s insurance will pay out and the physician will be reported to the NPDB despite the lack of any error. This essential “Sword of Damocles” has been hanging over medical practice for so long that generations (in educational terms) of physicians have been trained to spare no expense in “ruling out” any potential significant problem, regardless of how remote the potential. This “over testing” is now so pervasive that it has become the standard of care.

        I chose the Sword of Damocles analogy for a reason. One interpretation of the legend is that a “great man always lives with a sense of fear”. Appropriate, to a point, as physicians are endowed with great responsibility and should be fearful of mistakes. Another is that “there can be nothing happy for the person over whom some fear always looms”. Which is also true for physicians and is why there has been in Illinois, and other “high risk” states, a “brain drain” of physicians leaving these states to those with reforms, seeking to lessen this fear. But to me the most appropriate lesson to apply from the Damocles story to modern is medicine is that “the value of the sword is not that it falls, but rather, that it hangs”. And there is the problem. Reforms, unless sweeping and socially accepted, can do nothing but strengthen the hair holding the sword. The risk will remain (even if lessened). So the standards (and thus the costs) will only shift slowly and will likely only be practiced by those trained in lower risk areas and times. The only way to bring about a rapid shift is to remove the sword. Make a single payer system and have that system limit the testing that can be performed emergently to that which is likely to bear fruit. The physician, even without tort reform, would be insulated from judgment (I can not be blamed for not ordering a test I do not have access to). Unfortunately (or fortunately, depending on your personal political spin), the American public would never stand for this. We, as a whole, like living in a society where every test is performed, every ache and pain addressed, and rare diseases and injuries discovered. What we don’t like is paying for it.

        Tort reform does help, to a point. Not so much in actually reducing malpractice insurance rates, nor even in changing the validity of the cases filed, but the perception by the physician that their livelihood is safe and protected. This perception is difficult, as best, to quantify, but really is the crux of the argument.

        Now I’m sure Matt will come along soon and rant that we, as physicians, don’t understand that our risks are very small, and that reality is that this excess testing does not likely protect us at all. And I agree. Neither does rolling up your windows or locking your doors protect you much when driving through a bad part of town – but we all do it. And our risk of falling victim to a crime in those areas is relatively low in the grand scheme of things – but we all avoid them whenever possible. Perception, in this case, and in modern medicine in the U.S., is a stubborn reality.

  2. This scenario sounds familiar. On my end of the spectrum, this patient is a chronic debilitated kid with MR/CP/DD who comes from a long term care facility. The nurse with the patient isn’t his regular nurse, and knows little about him, and no, they can’t find the nurse who usually takes care of him. Family has long since abandoned him, but wants ‘everything done.’ And he was reported to be ‘altered’ before they were brought in. Oh and the paperwork is xeroxed poorly and most of his (many) meds are illegible.

    Yet we do LOTS of workups on these kids and spends LOTS of money, usually with an end result on admission to the medicine (general peds) team for 23 obs. Why? Because when this poor kid dies of his chronic illness I don’t want the finger pointed at me.

    But defensive medicine doesn’t really happen.

    • Of course defensive medicine happens. Here’s the question, though. Do damage caps reduce it? That’s your solution, after all. We’ve had them for 3 decades. Does the state that has had those caps for 30 years, California, seem to have any less defensive medicine? We know Texas doesn’t.

      If not, why do you keep saying we need caps to reduce defensive medicine?

  3. “If a patient complains of shortness of breath in the nursing home and the nurses don’t send the patient for evaluation, the nurse and the nursing home will be investigated by all the clipboard brigades and would likely be sued if the patient suffered a bad outcome.”
    So why all the hate for the NH folks? They ARE under the same pressures of liability. Some of the runs to the hospital are BS because of lack of simple interventions but you tell me why I see so many people admitted with simple UTI’s, GI bleeds with normalblood counts and the dreaded mental staus change which at least in my hospital gets you a room with a view when census is low.
    As for poor documentation and nobody knowing anything, that can happen with a inhouse hospital patient transfer. Last transfer inhouse I got, when questioning the nurse about possible stroke, the telemetry nurse’s response was “It’s all about chest pain up here, baby, don’t know anything about strokes”. As for the comment about the regular nurse not covering, try talking to the doc on call for a hospital patient….just as clueless.
    I guess while I’m at it, as to the jokes about nursing homes and MRSA and C Diff, my response to that is those infections were born in hospitals with their overuse and inappropriate use of antibiotics. The fact they have colonized in a population group with the weakest immune system who live in close quarters doesn’t erase the fact the whole mess started in hospitals.
    Off subject and a little bit of a rant. Just struck a nerve.

    • What you’re hitting upon, MW, is the all too familiar “turf wars.” The hospital staff tsk tsk the NH staff who turn around and get snippy when we send them back full of poo (b/c nothing like a hospital setting to constipate you) and lose their dentures. Everyone loves an outside group to blame, huh? WC has hit upon the common enemy — defensive medicine.

      My complaint? Once these NH folks with vague complaints are admitted, they never leave. We do the big work-up and cause multiple problems that we then need to treat. Then the NH won’t take them back because we ended up having to use restraints when their sundowners got outta control. By time that’s resolved, we’ve had weeks invested in a vague complaint gone bad.

  4. heh. every time granny at the nursing home leans over to pass gas, they’ll send her in to “rule out cva” and we’ll happily rev up the ol’ BMW (big medical workup).

    the other day an aide called 911 because she measured some lady’s bp as 60/40. when she got in, it turns out the patient never had symptoms or varied from her baseline in the least, and the aide admitted that the bp cuff’s been acting haywire and getting inconsistent reads. no documented hypotension in the ed. of course, her aide was not comfortable taking her back home, and neither her pmd or i were willing to fight them to push them out of the door. you see, if something (probably totally unrelated) happened to this lady after being sent home, it would have been us on the line. i shudder to think how much of medicare’s money we spent that day, or during the hospitalization in which her doc probably went on to knock everything off the differential besides “faulty home sphygmomanometer”

  5. Do physicians REALLY want to hop in bed with the nursing home industry as well as the liability carriers to support damage caps? Really?

    “What’s the bottom line in megaworkups for minor complaints? Fear of liability. Some of us have less fear than others, but that fear still drives a whole lot of medical spending.”

    OK, so you’re scared, and you want damage caps. How much less defensive medicine will you do, and how will you measure it if we give them to you?

    Your answer: ?

    If you don’t do that much less “defensive medicine”, will you abandon the caps?

    Your answer: ?

    “all the people who wouldn’t have the gonads to make a prospective decision about what care to provide to the patient would have no problem retrospectively questioning whether my care was adequate and appropriate. ”

    Isn’t this a problem with MEDICINE, not the law? Ultimately it’s a doctor calling your actions into question.

    • Matt:

      The answer to what it appropriate medical care and what is defensive can be established by evidence based studies. These studies allow a definition of what is the standard of care and establish guidelines of how to procede. These guidelines unfortuantely are fought by plaintiffs attorneys because because they decrease the ability to debate what the “standard of care is”. I would have thought that they would have been embraced by the legal community because then there would be a cut and dried point to start in the instance of malpractice but it is not turning out that way. In the same light, clinical pathways which have been developed to help improve both efficiency and patient care have not been accepted in the courts.

      In short, there are answers to all these issues, the problem is that attorneys do not want to accept them.

      • So do those studies. Show me an example of those studies being fought by plaintiffs attorneys. I think you’ll find that physicians fight those as much as anyone. From what I’ve read, and admittedly it’s not all the physician commentary out there, there is much debate among physicians about the efficacy of EBM. Am I incorrect?

        ” In the same light, clinical pathways which have been developed to help improve both efficiency and patient care have not been accepted in the courts.”

        This statement doesn’t make sense. The “courts” don’t accept or reject these on a wholesale basis. Remember, PHYSICIANS establish the standard of care.

  6. people are welcome to argue until they’re blue in the face that there is no problem with the status quo… just don’t expect medicare to still exist by the time you turn 65

    • I’m young and nothing would please me more than to see medicare die off completely. And while we’re cleaning off the shelves lets throw social security and medicaid in the bin too. I’d rather have more money in my pocket (or paycheck if you prefer) at the end of the day than some broken utopian idea of “everyone else will take care of ME”.

      • I agree … to a point.
        It’s easy to say that you want the autonomy to determine your own destiny with medical care and retirement income, but the fact of the matter is that most Americans do a poor job of future planning.
        Let’s say that you do get to keep all the tax money you currently pay into the social security system and Medicare system.
        Next week when you get into a head-on car collision and need trauma care but you haven’t saved to pay for treatment, is it OK to refuse you medical care?
        That’s the dilemma with which we are faced. No one wants to pay for the services but everyone complains that the services aren’t available when they need them.

      • True. Medicare in many ways is “if shit goes really south and you can’t do anything to dig out of a hole.” Maybe you save all your life and invest with a well respected financial adviser who turns out to be running a Ponzi scheme.

        Maybe you invest in the hottest company of the decade where you work, the company touted on the front page of every business magazine, and it turns out the books have been cooked and there’s not a dollar left.

        Maybe you get hit by a car, and drain your savings on the medical bills and can no longer work.

        These things happen, and they happen all the time.

        That’s why we need Medicare/Medicaid. The same reason we have insurance for anything else. Yeah, people should buy on their own, but the fact is we won’t let people die in the streets in this country, so we’re going to pick up the tab one way or another. Might as well have them pay for some of that cost.

  7. I agree with Matt. Keep in mind the irony here: when you say that defensive medicine is caused by things other than litigation, you are indirectly saying doctor act for motives other than the own economic good. What is worse for a good doctor, getting blamed or getting sued? My guess is that most doctors fear just being blamed as their real concern, regardless of whether there is a lawsuit.

    Suggesting defensive medicine is a litigation problem suggest all doctors care about is avoiding blame that results in litigation. I don’t think this is so and Matt is right the statistics in Texas in California don’t bear that out.

    • Defensive medicine is so named because physicians are taking preemptive steps to defend themselves from some bad outcome. Whether that bad outcome is a malpractice lawsuit, a charge of incompetence filed with the state licensing board, or even a patient complaint which could be the tipping point in a physician losing his or her job at a hospital – and would follow that physician around when trying to find another job in the future.
      Blame and bad outcome often amount to the same thing.
      When there is no net negative if a physician decides to perform these unnecessary or low-yield actions but there is a real or perceived gain – what is the motivation not to perform them?

      Your arguments about “avoiding blame” above all else are just as ridiculous as those that Matt make.
      ATTENTION PHYSICIANS! For a limited time only, we’re going to allow you work for 10 cents an hour in sordid working conditions but … YOU CAN AVOID BLAME!
      Great ad campaign. Pass those around to the hospitals for me, will ya?

      Kind of like saying lawyers only have to prove one element of a tort to be successful in court. I have damages, therefore my malpractice claim against my attorney should be successful.

      In reality, there are many facets to making the practice of medicine desirable – both in general, and in a specific state. Many doctors would accept less reimbursement or would work in a less desirable area for a decrease in liability risk. Conversely, if you pay doctors double what they’re making now, many would probably accept increased liability risk.

      Bottom line is that the more facets of medical practice you make undesirable, the less likely you’ll have medical care available.

      Then again, you can always call Gerry Spence when you get a flat driving down the highway and become a hood ornament on a Mack truck. He’ll know how to fix your ruptured spleen and your kid’s subdural hematoma. No problem.

      • OK, ok, let’s say we agree with you. There’s defensive medicine, and loads of it. And you do it despite no evidence at all it works.

        The problem is what do we do about it? You’ve told us caps for decades, and there’s no evidence that works. Yet that remains THE SOLE LEGISLATIVE goal of every one of your proposals. So why are you still yammering on about it? Your solution has been proven over decades not to work!

        And you’re right, we don’t need Gerry Spence initially. We need you. But when you’re trying to pay those medical bills, and your mortgage, and for all the things your kid needs, you damn sure do need Gerry when that Mack Truck’s insurer says he wasn’t at fault.

        Physicians like to think that life is merely keeping you alive, and everything else is just superflous and unimportant. It ain’t.

      • Matt- you’re a lawyer, right ?
        Hell yes, defensive medicine works- just like a bullet proof vest works for cops . 99% of the time they don’t need it but when they do, they’re glad they did. Medicare is going bankrupt from the daily nursing home runs. My favorite was ” Good blood pressure, but no pulse” complaint !
        Or the ever popular “Dead” so they ship them in an ambulance to keep their stats good and cut down on paperwork filled out. But the all time favorite is ” CPR in progress” on a DNR patient !!!!! We are severley abused by the nursing homes since all it takes is one idiot with a telephone to call EMS for anything.

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