What Every Pathologist Needs to Know About the Legal System

This is Lab Medicine Rounds, a curated podcast for physicians, laboratory professionals and students. I'm your host, Justin Kreuter, the Bow Tie Bandit of blood, a transfusion medicine pathologist at Mayo Clinic. Today we're rounding with Dr. Ross Reichard, a forensic pathologist at Mayo Clinic who is also the prior vice-chair of quality for the Department of Laboratory Medicine and Pathology.

And current medical director for Mayo Clinic Quality Academy and Associate Professor of Laboratory Medicine and pathology. Dr. Reichard is here with us to discuss what every pathologist should know about the legal system. Thanks for joining us today Dr. Reichard. Thanks for having me. I appreciate the opportunity.

Yeah, so I'm really interested, I this is a topic that I'm gonna be learning a lot from. Maybe you could kick it off for us and like why is it important for pathologists to know a thing or two about the legal system? Well, as a practicing pathologist whether you fully appreciate it or not you're already engaged with the legal system, you know primarily through quality assurance programs, you know and that's really important to appreciate because you know, statutes, they vary from state to state.

I mean, there are some things that are pretty consistent you know, a across the country and, you know in the quality assurance program it could protect your organization from liability or malpractice if you know based on someone else who's practicing in your organization if you're following it appropriately. But also your quality assurance program if not managed properly you could also put your institution at risk.

So, you know, an example of that would be, you know you have a, an event with a patient event or a safety event or such and you know, you form a, a committee, you know, to to evaluate what, what happened, you know, so this is a a peer review group and what that's called as a review organization. And so, you know, our society has deemed it very important for physicians to be able to have peer review and to improve the care of medical practice without the fear of being sued for malpractice.

But if you don't manage this properly, you may put you your organization in that information at risk. You know, you keep things as a small group, it's confidential. Re information from those works aren't, you know released to large group, you're fine. But you know what people may not understand and what, what what I've seen is, oh, this is a great improvement let's email everybody we know about how we learned about this.

And when you do that you've now removed the confidentiality component and you might make this subpoena or discoverable. So whether you, whether you appreciate it or not, you're you're probably already engaged would be be one point I guess. Wow. That, that really, you know it certainly hits home probably for most of our listeners as we're a collection of our listeners are physicians lab professionals and, and students.

So certainly the physicians laboratory professionals quality is something that is really front of mind and probably even more so than the legal system. I, I hadn't really hadn't given as much thought to that.

And that's, given that I've been to many of those, you know, morbidity, mortality meetings we're reviewing cases and I know that that and I guess I've always thought about as that canned language about, you know what we're talking about here is, is confidential which is great for, as you say, really fostering some of those critical discussions and how we go further.

And you're, I think, spot on with that example of you learn something great you really want to disseminate it as that natural reflux. Maybe can you take in, maybe dive into some

of these points because I think this is starting to resonate with our audience about, you know, even though we're not going to a court of law quality practices are something that all of us are involved in. Could you unpack those a little bit so that listeners can think about how they're engaging in that? Yeah, I mean, I think we're we're doing it more often than we think. We just haven't set it in the legal, the legal setting of it before, because oftentimes it doesn't come up.

It's only when it comes up that people think about it from that perspective. And so, you know if you have a solid quality assurance program, for example and you're following that if you have someone that does something erroneous or larger organization, the third party would be protected.

If you have the program and you're not, you know, following through correctly and you have someone who's, you know failing PT and competencies and such, you know your organization could be held liable for the harm that that person did. That would be one example. And you know, and second point, sort of at a at a larger level, you know, as as a pathologist and a physician and and hopefully as only through work related activities and not personal, but you know, you you

there's a high probability eventually you'll be involved in some sort of legal proceeding, you know, as a various you know, whether you're a fact witness, an expert witness or hopefully not a defendant, but there's a there's a reasonable probability that you will at some point engage very directly with the legal system. And do you have any kind of tips or pointers about if that comes to pass, how, how you proceed?

Because I mean that's, that's not something I remember learning in medical school or, and you know, I certainly got the chance to see some courtroom work when I was on my forensic rotation in training but probably most of us aren't, aren't too savvy on that. Yeah. So I guess I think the the number one thing is if you are involved in something I would understand what your role is which is very critical. So, you know, there's really two types of witnesses.

And so one is a fact witness and so this is a person that has, you know, you know witnessed the crime so, so to speak, right? So you're the, the stander by who saw something happen and you're gonna testify to that. And the role of pathology per specifically that would be you're the one that made the diagnosis.

So you're just saying, I made the diagnosis of x, it's you know, this, this type of neoplasm for example, that's in contrast to an expert witness is usually not initially directly involved in the case and has brought in to issue their opinion about that particular case. And so expert witnesses are, you know being paid for their time and are doing this really at at their own pleasure, if you will. They've, they've willingly engaged to be in this role as an expert.

So I think those are two really breaking, you know big categories, but really knowing what your role is and and what are the expectations of what you're, you're gonna do. Oh, that's really helpful.

If I could back up to an earlier point you were making I think about the importance of, you know having a good quality plan and following it. Because I think that's something that probably, again, a lot of the listeners that resonates with, you have been involved in quality in, in many capacities many leadership quality capacities here at Mayo Clinic. And probably have seen and thought about a lot of these quality plans.

Do you have thoughts like our listeners, you know to give us maybe some fresh eyes if I say, gee I maybe I should look at my quality plan, you know, how how can I know it's good or, or you know, what are some kind of first initial steps I can take to shoring it up a little bit? Yeah, I mean, I think, you know, making sure that you really do have a robust plan and that you're you're following what that plan is at a very high level, that's easy to say.

But you know, when some groups get in trouble as they have a plan and then they don't follow it and they don't stick to what they're doing. And you know, at times, you know, people think, oh this is tedious, you know, why am I reviewing this s o p why am I signing off on this? Why am I checking these competencies?

Why did I have to come in and review this histology for you know, it's quality and it seems kind of tedious but each one of those parts is what puts together a really robust quality plan. I think, you know I mean eventually I could expand on it if you want but I think part of it is understanding what you know really is the definition of malpractice and how you would get to the, to understanding what malpractice is. Because I think a lot of people don't understand what that means.

They think, okay, I got the diagnosis wrong, shoot that's malpractice, I'm gonna get sued, you know or something happened here and that, oh, I'm gonna get sued. And I think when you understand the different components of it, it, it helps kind of ease you a little bit but also helps you have a framework of how you could approach developing a quality assurance program. Oh, that's really, you know, probably for our students it would be really helpful to kind of elaborate on that.

Probably a, a good reminder for a lot of us in practice too if you could kind of, what does that mean malpractice? So there's really four key elements to, to meet that. And the, the first is you have to have a duty or an obligation to treat the patients to a standard of care. And so for pathologists, that specimens in our laboratories and so really the key component is the duty and the standard of care. Standard of care is critical. And I'll come back to that.

The second thing is there must be a dereliction from that which just means negligence. So you have to, there has to be proven that there was negligence in providing the the standard of care. The third is during the dereliction of duty the patient has to have been harmed either by your actions or your inactions. And then fourth is damages must be demonstrated. there's a couple high level points I'll kind of focus in on.

And one is the standard of care, and that's the standard of care at the time you're practicing medicine. Okay? So like if the standard is to evaluate this particular neoplasm or this blood sample a certain way and you're following that and there's some, you know, unfortunate outcome you've been following the standard of care. And, and that's a very, very important part of of how this would be seen through the courts and whether it would even proceed.

And that's, you know, if the lawsuit's filed, you know years later and goes to court they don't get to apply the new standard of care now that there's been, you know new molecular testing or what have you. And so I think that's a really key element. The other thing that I think is really important to emphasize is a patient is harmed by your actions or inactions.

And so one of the things that I've seen from a practical standpoint is people are like, you know oh this case got reviewed or seen by something at a tumor board. Like, you know, I'm not sure I agree, let's work it up let's do some more stains, let's think about it. And this is that huge rock of a case that's hard to get moving.

And, and the reality is, from my perspective at least is having been in these various roles is that the longer you sit on something the more likely there is for patient harm to be done, right? You go, oh man, I missed this diagnosis and someone looked at it the next day. You want to fix that and get that out there as quickly as possible cuz you don't want that person getting chemotherapy that doesn't need it or wrong chemotherapy or delay of treatment.

So when you know something our tendency is to kind of hunker down. In some organizations they call risk management they do all these things that just take time and you know I i I try to emphasize the sense of urgency of we need to reconcile this issue and get this to the patient as soon as possible. Cuz you know, a day or two different might be, you know whether the patient is harmed or not harmed. I think those are great things to kind of tee key our audience into, right?

So thinking about our SOPs and this can be, you know really anybody in in laboratory medicine and if you're listening from the clinical side also questioning and engaging in these conversations with your laboratory professionals about, you know are we maintaining that i is our our is our process that standard of care, you know are have, have, has the state of care kind of moved or advanced and are we keeping up with that? And then that sense of urgency.

Because I hear you that, you know, you wanna sometimes there's a wanting to be cautious, but certainly in transfusion medicine there's some things we think about you know, the, the sun cannot set on this. Right, right. You know, I think probably one of the best examples of that and not to dabble close to your area because I'll be way outta my league very quickly, but you know like deep Venus thrombosis prevention, right?

Think about how much that's changed in the last 20 years 10 years, you know, even the last few years really. But it's, you know, the standard of care has dramatically evolved and it varies by procedures and situations. And so that that's one where it doesn't mean you're not gonna have a pulmonary thromboembolism and potentially you know, harm or death from that but are you following the standard of care at that time with that particular patient?

So I imagine, so for some of us, you know how we keep up with this is kind of should be second nature to us in terms of maintaining our certification getting our continuing education hours hopefully bringing the education back to advancing our policies, procedures.

Thanks. As a blood banker always makes my heart go pitter patter to hear somebody talking about making sure we actually follow our our s o p I imagine keeping up with the legal system or you know, are there things that like you're saying that are the legal system that's really quality changes. I'm probably, if I'm honest with myself I'm a little harder to update myself on maybe more broader the legal system as it pertains to quality management.

What do you recommend for people who want to take more of an active or deliberate role in keeping up? So there's a few things. One is national and regional and local. You know, organizations are following this and they're looking for, you know, big changes and they'll notify their members and so pay attention. You know, sometimes people skip over that part of the of the communications from those groups.

But that's a really good, you know, place to to learn and which means you need to be involved and and be part of those groups. And that's one way to do it. I think another one from like a a practical standpoint is really understand your practice from end to end and ask questions that are informed questions. So, you know, for example, hey, this specimen's coming from across the state lines, does it matter? Which state is it coming from? Does that matter?

You know, was it sent to me directly by the provider or did it come to go to pathologists and then was referred to me, you know, you know and big organizations like Mayo we often have people behind the scenes that are asking those questions and managing it so we don't see it bubble up. But you know, you, if you understand your whole, you know practice from beginning to end and ask those thoughtful questions.

And I think another key point is, I mean sometimes you can see things in the media like I watch for big, you know legal things that have made it to the media. And then oftentimes because they've gone to court those records are public. So you can actually drill down into it if you're really want to geek out on it, learn more.

But I think the other thing is like you really need like a true like advisor, you know an attorney that understands the questions you're asking like someone for compliance is different than like civil you know, malpractice, which is different than criminal. And so I think knowing that, and, and from my perspective the the last person you you want to get legal advice from is like another physician.

I mean I sort of joked there's a few things that physicians they stick their toe in the water that I really don't want I don't want my, you know, physician to be my pilot. I don't want them to be my, my investment advisor. I don't want them to be my attorney.

And so I say that, you know, jokingly sort of, but you know there's a lot of misconceptions out there and, and you know physicians are smart and so they think they understand it but oftentimes they've gotten their information on antidotes from their experiences or from friends and and they don't quite have the the whole breadth of the situation on your hand.

And so I would say make sure you get to a trusted source You know, for some of us, I mean we might have, I know a lot of people probably don't have attorneys necessarily on retainer, but I imagine this show, this podcast a lot of the big theme of it is is connecting lab medicine in the clinical practice. But I think this might be a nice example of connecting lab medicine and and maybe our legal team at our institution.

I guess can you kind of give that an example of is there a connection there that you've kind of fostered and developed a relationship about asking for clarity and guidance on certain things? Yes, I would, I would say the number of people in the legal department know me pretty, pretty well and, and for me for asking questions and bouncing things off of them. So, you know, there's different within Mayo.

So first of all, most organizations are gonna have this there's an on-call person for legal and so you can basically call the operator and say I need to speak to whoever's on call for the legal team. Just like there's somebody in charge for administration or nursing there's somebody out there and they can find that. So like if you have a pressing question that's often a good place to go, they'll triage it and maybe get it to the right subspecialty.

You know, I now know within Mayo system, you know like I'm concerned about, you know how something was managed. I might direct it to, you know, one particular attorney in general or if it's another one I might call them just cuz I happen to know what their areas of expertise are and what they're doing. You know, and at least within the Mayo system I don't wanna make this too Mayo eyes, but you know you're having a attorney-client privilege when you talk to them, so that's protected.

So just, you know, there's no need to be afraid to of talking to them and there's no need to be afraid that you're like causing problems for other people when you raise this. In fact, they very much appreciate being made aware of things like when when you're making an informed decision, like, okay you know, this is what came through here and I saw this or this patient did this and is saying this.

Sometimes notifying people and letting them start a file on it, get some background, and again allows them to be proactive instead of reactive when something pops out either in the media or like in a lawsuit or whatever, you know weeks or months after the fact.

So, you know, I, as a forensic pathologist I'm probably more comfortable than other physicians talking to attorneys, but I, I think, you know, you gotta look at 'em that are on your team as your friends and like and the benefits that they can provide. Brilliant. So making that connection as a positive thing.

And, and certainly, I I also keyed onto your response about the fact that like at larger centers, you know there are people that are working behind the scenes to make a lot of things happen but certainly a lot of our trainees might go off into smaller practices and it's important to take notice of these issues, to be thinking about these issues and to develop the relationship with a, you know who's the institutional legal system or person as an important thing.

One last question I have is, you know so you have an upcoming conference where you're really gonna be elaborating on this further. What are, what are the details on that? Yeah, so it's a 2023 International Surgical Pathology symposium that's hosted by Mayo this year. It's gonna be in London the first week of May. And the, the website for registration will go live December 23rd. So it's a, it's a very neat conference. We'll be back in person.

It's tailored to give people some space to explore whatever cities we're in but have some really focused topics and it it moves into quick pace. So I think it's an engaging format. Awesome. Thank you so much for rounding with us Dr. Reichard. My pleasure

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