Monthly Archives: March 2013

Judges Practicing Medicine–The Right Response

I received a court order last week, ordering me to provide a certain inmate with several medications (some of them misspelled) during her six month incarceration.  Upon investigation, it turned out that she did not even have a current prescription for all of the medications, but I was ordered to provide her with them nevertheless.  Oh, and I was ordered to give her a double mattress, too.Judge with One of Those Days Look.

Nothing in correctional medicine irritates me more than when a judge tries to practice medicine like this.  It makes me want to tear out my hair and gnash my teeth. And thus begins THE RANT:

THE RANT

You mean to tell me, Judge, that this patient has to remain on these medications while in jail, no matter what?  I cannot exercise any medical judgment?  What if she suffers a severe reaction to one of the medications?  By court order, I cannot change it!  What if the patient herself wants to stop one of the medications?  I cannot accede to her request without violating the court order.  What if her outside doctor wants to withdraw a prescription?  Nope, by court order, that is not allowed.  Do you really intend for her to be on these exact medications for the rest of her life?

Not only is this terrible medicine, Judge, but an insult as well.  Do you believe that I will not do what is best for my patient?  Do you truly believe that I do not care what treatment my patient has received in the past?  Do you truly believe that I am such a bad doctor that the only thing that will keep me from committing medical malpractice is this stupid court order?

OK.  I have wiped the spittle off my computer screen and I feel better now.

But that is not all!  Earlier in the year, a judge approved a medical furlough for an inmate so he could see his “own doctor.”  However, when this inmate went to the doctor’s office upon his release, they would not see him because he did not have an appointment!  What a waste.  Another patient released for a medical furlough did have an appointment, but never showed up for it.  What did she do in the six hours she was away from jail?  I don’t know and neither does the court.  They never checked.  Not only were these furloughs a security breach, both furloughs were totally unnecessary.  I was well aware of each patient’s medical condition and even had talked to the outside doctors to coordinate care.  What a waste of everyone’s time, including the court’s.

Am I the only correctional physician to be cursed with such orders?   Nope.  Having talked to many colleagues, such orders seem to be ubiquitous in correctional medicine!  The question is what to do about them.

It Is Our Duty And Obligation to Oppose These Orders

In my opinion, we cannot simply indulge in a rant, but then shrug our shoulders and blithely obey medical court orders.  Such orders from the court are bad medicine.  It is our obligation and duty to protect our patients from this bad medicine.  The court is, in fact, incompetent to make medical decisions.    It is also our duty and obligation to educate all parties involved that we are competent to deal with inmate medical problems.  We don’t need the court’s “help.”

In order to formulate a game plan, we need look no further than the hearing that resulted in this court order.

Anatomy of the Hearing

20100526To begin, think about the players who were present in the courtroom when this order was issued.  There was the judge, of course.  The defense attorney was there along with our patient, the defendant.  And a deputy prosecutor was there, too.  Now, think about who was NOT in attendance.  The outside doctor(s) who prescribed the medications were not there, provided no testimony and probably did not even know that the hearing was taking place.  In fact, there was no medically trained person in the court room at all.

Who, then, provided the expert testimony about what medical services the patient would need while in jail?  The patient herself, via her attorney!  She acted as her own “expert witness!”  The procedure went something like this:  The patient’s attorney told the judge that the patient had medical problems and would require certain medications and treatments while in jail.  The patient and her attorney then said that they were afraid that these necessary medicines would be stopped as soon as she arrived at the jail.   And this, they alleged, would result in horrible consequences for this patient.

Since none of this patient’s outside doctors was in attendance, no evidence was presented to back up any of these claims.  There was no evidence presented that the patient actually had the diseases she claimed to have.  There was no evidence that the medications she listed were necessary or that they should be continued indefinitely, no matter what.

So why then would the judge issue the order, despite the absence of any medical evidence?  The critical answer is that the prosecutor present at the hearing said he had no objection!  There is the crux of the matter.  If the prosecutor had said, “This court order is unnecessary.  Jail medical can handle this patient’s medical needs,” then the judge would never have issued such an order.  At most, she would have set a date for a formal hearing on the matter.  Or just said, “No.”

So why didn’t the prosecutor object to the issuance of this order?  There are several possible reasons.  The prosecutor is interested in criminal charges, not medical issues.  Whether the inmate gets certain medications or not is no skin off his nose.  Also, if he objects, a formal hearing might be scheduled.  He is busy and he does not want to have to prepare for yet another hearing.  It is much easier just to go along.  Finally, everyone in attendance, from the judge to the attorneys, are ignorant of the medical services available in the jail.  For all the prosecutor knows, everything the patient said is true.  She needs these meds! Maybe the jail Doc will stop them for no good reason!

To summarize, here are three critical facts about the hearing that resulted in the medical court order:

  1. No evidence was presented at the hearing to substantiate the patient’s claims.  No expert witness spoke.
  2. In order for the order to be issued, the prosecutor (who is our representative) had to agree to the court order.
  3. Nobody in attendance understands what medical services are available to incarcerated inmates.  They might not even know that there is a medical service at all.

Fighting Back—What We Can Do To Combat Irrational Medical Court Orders

It would be irresponsible not to do what we can to reverse these bad medical court orders.  There are two priorities here.  The first is to get this particular court order reversed and the second is to do what we can to make sure that no such court orders are issued in the future.

The key to reversing the original court order is to remember that no medical expert attended the original hearing and no medical evidence was introduced.  So to get it overturned, all I need to do is to introduce medical evidence.  The legal term for a written statement of evidence is an affidavit.  The person who will help me prepare this affidavit is the prosecutor who signed off on the original order.  I need to call him (or his boss) and explain that this court order is bad and needs to be reversed.  The prosecutor and I then need to write an affidavit to the court stating all of the reasons that this court order is bad medicine.   The affidavit should basically restate everything I said in the rant above, but in a nice way.  For example, I need to introduce myself and list my qualifications.  That establishes that, hey, there is a real, competent doctor at the jail.  Then I should list the blatant problems with the court order, for example, there is no room for any clinical judgment,  I cannot, by court order, change the medications under any circumstances, such as side effects, or even by patient choice.  If I think that some of these medications are inappropriate for the patient, I can state that and briefly say why (major potential drug interaction, controversial off-label use, dose higher than manufacturer recommendation, etc).

Almost always, the affidavit alone is enough to have the judge rescind the order mandating certain treatments.  Occasionally, the judge will schedule a formal hearing on the subject, but that always seems to go well because the correctional physician is the only medical professional who attends.  I have yet to see an outside physician at one of these hearings.

Writing an affidavit and then perhaps attending a hearing on the matter may seem like a lot of work.  In reality, it will save time in the long run, because it will result in fewer medical court orders in the future.   The defense attorney will be less likely to seek such a court order in the future knowing it will be challenged, the prosecutor won’t blithely sign off such orders without calling me first and the judge will be less inclined to issue such orders.

Educating the Courts.  Meet the Prosecutors.

After the original court order has been reversed, the next task is to do what we can to prevent such orders being issued in the future.  The way to do this is to set up meetings in which you will provide education about jail medical services.  I have had meetings with the judges themselves, but these are often hard to set up.  You can set up meetings with the public defenders, but to meet with every defense attorney in town is hard.  (I have had success setting up such meetings, however).

Fortunately, the easiest meeting to set up is also the most important and that is the one with the Prosecutor’s Office.  A typical Prosecutor’s Office will already have a meeting attended by all of the prosecutors at least weekly.  I have found it quite easy to get a half hour scheduled to talk about jail medicine and the problems with the courts.  In fact, the Prosecutors Offices I have dealt with have been happy, even enthusiastic to discuss jail medical issues.  The main goals for the prosecutors are:

  1. Introduce yourself and your credentials.  It very much helps that, just by talking to the prosecutors face-to-face, they can see that you are a rational, reasonable person.
  2. Describe the problems with the various medical court orders, including medications, furloughs, double mattresses, etc.
  3. Explain how these medical histories are assessed and evaluated in the jail, including discussions with the outside doctors when necessary.  Expect a lot of questions about how meds are approved or disapproved for use in the jail (This is the single most prevalent complaint that they hear in the courts:  “I’m not getting my meds.”)
  4. And most importantly, ask the prosecutors never, ever to approve medical court orders without talking to you first.

I always give the prosecutors my personal cell phone number and invite them to call anytime.  I point out that it will take less time and effort for both them and me if they call me initially rather than have to fill out an affidavit after the fact.

I have attended many such meetings with prosecutors.  These have always gone well.  I usually get several phone calls in the weeks after the meeting from prosecutors asking about certain allegations that were made in court.  But when the prosecutors are armed with the facts, nonsensical medical court orders stop.  Commonly, patients have fudged the truth or outright lied about their medical problems and what has been prescribed for them.  When judges find out this out (from me via the prosecutors), they tend to be irritated—and less likely to entertain medical requests in the future.

Occasionally, I have had to testify in court about medical processes in the jail.  These have always gone well, also, and are again an opportunity to educate the judge about what goes on in the jail.  It sounds especially good when I testify that I have contacted the outside physician and that we jointly have agreed to a treatment plan while the patient is in jail.

By the way, I have never once seen an outside physician testify at one of these court hearings about jail medical issues.  Outside physicians hate to go to such hearings for many reasons:  It disrupts their busy practice schedule, they don’t get paid, and they usually have no objection to the medical treatment the patient is getting in jail, anyway.  This means of course, that I am the only “expert witness” that the court hears.

In the case I initially introduced, I filed an affidavit with the court the next day with the help of the county attorney and the deputy prosecutor in the case.  The court order was amended that very day to read “The foregoing order is subject to the exercise of medical judgment of the medical staff  . . .including, if deemed appropriate, consultation(s) with those physicians who have prescribed the above medications.”

This was good enough for me.  I called the outside physician (which I would have done anyway), and we jointly agreed on a treatment regimen to be used while this patient was incarcerated.  Interestingly enough, this treatment plan did not include most of the medications on the initial court order.

How do you handle medical court orders at your facility?  Please Comment.

Chemical Sedation is Safer than Prolonged Physical Restraint

Here is the clinical scenario:  You have an inmate in your facility who is running his head into wall, bull-like, at full speed.  He then backs up and does it again.  He may be suicidal.  He may be high on meth.  He may just be a jerk throwing a tantrum.  But he will not stop just because you have asked him to.

How should we stop this patient from hurting himself?

How should we stop this patient from hurting himself?

What would you do in this situation?  It seems to me that there are only three options for how to deal with this inmate.

  1.  Do nothing!  Let him hurt himself if he wants.
  2. Physically restrain him in a restraint chair or on a board.
  3. Administer sedating medications as a form of chemical sedation.

These three responses clearly are different in the risk of a bad outcome.  And there are two possible bad outcomes to consider.  The first is the medical risk.  Which approach is most likely to result in a serious injury to the patient?  The second is the legal risk.  Which approach is least likely to result in a successful lawsuit?

I hope that no one reading this would opt to do nothing.  You simply cannot continue to let this inmate run his head against the wall.  The risk of a bad outcome, both medical and legal is just too high.  On the medical side, I personally am aware of three cases where inmates running their heads into the wall of their cells fractured their necks. One was left a quadriplegic.  The risk of legal action is also high.  In fact, this could be Deliberate Indifference:  You knew that running his head into the wall could potentially result in serious injury and yet you did nothing to stop him.  I will leave the Deliberate Indifference question to the lawyers, but even without this, the threat of a nasty lawsuit following such an injury is almost inevitable.

So the prudent action, both medically and legally, is to restrain this patient in some way.  But which method of restraint is safer for the patient?  Which method of restraint is safer legally?

In my strongly held opinion, restraint by chemical sedation is safer than prolonged physical restraint for those who are a threat to injuring self or others.  I have several reasons for believing this.

  1. Chemical Sedation is the community standard of care in the other two areas of medicine that also routinely restrain patients who are a threat to self or others.  Those two areas are Emergency Medicine and Inpatient Psychiatric medicine.
  2. Prolonged physical restraint, for example in a restraint chair or board, carries significant risks of injury, including death.  Chemical sedation is much safer.
  3. As long as the chemical sedation is done properly, there is less risk of successful legal action with chemical sedation than with prolonged physical restraint.

Chemical Sedation is the Community Standard of Care

I practiced in a busy emergency department for many years before I came to correctional medicine.  There, chemical sedation is routinely practiced.  Every Emergency Department does chemical sedation routinely.  It is not controversial in ERs at all.  I was taught how to do chemical sedation in my ER residency.  It is an Emergency Medicine “Core Competency.”  Chemical Sedation is discussed in every major Emergency medicine textbook.  As a matter of fact, physical restraint is viewed in Emergency Medicine as a tool to facilitate chemical sedation rather than a viable option on its own.

It is a similar situation in inpatient psychiatric hospitals.  I have asked several psychiatrists whether they leave dangerous inmates in a psych hospital physically restrained for long periods of time.  The typical response is to laugh and say “No.  They get sedated.”

I’m not sure why chemical sedation has such a bad reputation in some quarters of the correctional medicine world, because it is the Standard of Care for patients who are an acute danger to self or others elsewhere in medicine.  Why is this so?  It is because:

Chemical Sedation is Safer than Prolonged Physical Restraint

Unfortunately, I cannot point to any published studies that show that chemical sedation is safer than prolonged physical restraint.  That is because there are none.  However, I personally know of at least five cases of death from physical restraint.  The mechanism of death in these cases has ranged from suffocation to acute pulmonary embolism to “excited delirium.”  The point is that prolonged physical restraint carries substantial risks that range from minor (contusions, abrasions, broken bones) to serious (death, loss of limbs from too-tight restraints).

On the other hand, I am not aware of any deaths from chemical sedation, whether in an Emergency Department setting or in corrections.  I actually have never heard of any serious complications from chemical sedation.  There may have been one somewhere and I am just not aware of it.  If you know of such a case, please contact me!

Chemical Sedation Carries Less Legal Risk Than Does Prolonged Physical Restraint

Again, there are no published studies on the incidence of lawsuits after restraints.  I have spoken to several different Risk Management experts on the subject, both in Emergency Medicine and Correctional Medicine,  and they have unanimously agreed that chemical sedation of a dangerous patient carries less legal risk than does prolonged physical restraint.

Here is one example.  I contacted Rick Bukata and Greg Henry, who together publish Risk Management Monthly, a publication on how to reduce medico-legal risk in Emergency Departments.  I asked them about the legal risk of administering chemical sedation to a dangerous patient against his will.  This was their response:

“Jeff Keller has malpractice concerns about the patient who is sedated against his/her will.  This situation is not likely to be problematic if the patient is being sedated because he or she poses a danger to self or others, and if the reason for sedation is meticulously documented.  A physician might be at greater medicolegal risk if he or she fails to sedate a problematic patient who is placing the staff in jeopardy.”

After talking to several Risk Management experts in Correctional Medicine about this subject, I am unaware of any successful lawsuits arising from chemical sedation of an incarcerated inmate who was an acute danger to self or others.  Once again, if you are aware of such a lawsuit, I want to know about it!  Please contact me!

I believe that the legal risk of restraining an inmate depends on two factors.  The first is harm.  If a patient has been harmed by the restraints, he is more likely to sue and is more likely to be successful.  So the method of restraint least likely to injure the patient is the safest legally.  Chemical sedation is safer than prolonged physical restraint and so is safer legally as well.

The second factor is that the sedation was done on the right patient (one who is an acute danger to himself or others) and that this was documented properly.

In fact, chemical sedation is very like administering any medication.  You must have the right patient, give the right medications in the right dosages, do the right monitoring and follow-up care, and document in the right way.  If you do all of that, your legal risk will be low.  More details on that later.

What does your facility do for out-of-control inmates who are a threat to themselves or others?  Chemical sedation or prolonged physical restraint?  Please comment!

 

 

Nurses and Chronic Care Clinics. What Do You Think?

TaserCamIn my last post, I discussed the differences between how nurses are used in Acute Care Clinics in the community versus how they are used in corrections.  Today, I would like to discuss the differences between the community and corrections on how nurses are used in Chronic Care Clinics.

Again, these remarks are based on a talk that Dr. Marc Stern gave at the Essentials of Correctional Medicine conference last year.  It was quite a thought-provoking talk.

First, let’s define the difference between an Acute Care Clinic and a Chronic Care Clinic.  An Acute Care Clinic is one where the patient has asked to be seen because of some problem or complaint.  Examples would be “I have a rash,”  “I have chest pain,” or “I am having a hard time breathing.”  The patient is asking for a diagnosis (“What is causing this?”) or for relief of symptoms (“I want pain medication for this headache!”) or both.  The key is that the clinical encounter is patient driven—the patient has asked to be seen—due to some acute symptom.

Visits to a Chronic Care Clinic, on the other hand, are scheduled by the medical provider to assess progress made in treating some chronic medical problem.  These are scheduled months in advance and occur even if the patient is doing well.  One example is a patient on blood pressure medications who is scheduled for a follow-up visit to see how the blood pressure is doing.  Another example is a patient with hypothyroidism who is scheduled for a thyroid panel blood test to see if she is on the correct levothyroxine dose.  Patients taking warfarin come to an anti-coagulation clinic to have their INRs checked.  Each chronic disease, from COPD to rheumatoid arthritis, has a different set of monitoring tasks which are routinely done in a Chronic Care Clinic.

The key difference here is that chronic care visits are scheduled by the clinic, not the patient, and are expected to occur even if the patient is feeling well and has no complaints. Also, what will occur at the clinic visit is known beforehand.  Usually, there is a checklist of tasks that are scheduled to be done each visit.

However, nurses once again tend to be used differently in Correctional Chronic Care Clinics than they are in the Community.  But interestingly, the situation is exactly reversed from the Acute Care Clinic situation!

Community Chronic Care Clinics

In the Community, Chronic Care Clinics are most commonly run by nurses.  The patient may not see a practitioner every time.  Take the case of a Type 2 diabetic in the community.  Three or four times a year, this patient is scheduled to come to the diabetes clinic for a Chronic Care visit.  At that time, routine blood work (a Hemoglobin A1C, for example) is drawn, the patient is screened for diabetic complications (a foot exam, say, and blood pressure) and the patient receives counseling and teaching (for example, about the importance of the diabetic diet).  All of these tasks are typically done by a community nurse.  The patient may not see the doctor unless the nurse identifies a problem or unless the Chronic Care protocol specifies a practitioner visit.  Otherwise, if the patient is doing well, the practitioner may only see them once a year.  This is the community standard.

Correctional Chronic Care Clinics

However, as pointed out by Dr. Stern in his lecture, this is not how Chronic Care Clinics are typically done in corrections.  In jails and prisons, Chronic Care Clinics tend to be run exclusively by practitioners. And using practitioners to do work done by nurses in the community tends to be inefficient for a couple of reasons (these are my opinions, not necessarily Dr. Stern’s).

  1. Practitioners tend not to do as good of a job with Chronic Care Clinic tasks as nurses do.  Chronic Care, properly done, is a time intensive process that includes meticulously going through a checklist, answering questions and teaching.  Practitioners (and I am including myself here) tend to go too fast.  Nurses do a better job.
  2. Every minute a physician spends doing Chronic Care Clinic tasks typically done in the community by a nurse is a minute she cannot spend doing acute care evaluations and diagnostics she is better trained to do.  This is a time management issue.  The nurses will let the practitioner know if they find something during the chronic care visit that needs acute attention.

The practitioner, of course, should review the work done by the nurse in the Chronic Care clinic.  The easiest way to do this is to use a Chronic Care Flow Sheet filled out by the nurses at the chronic care visit and signed off by the practitioner at review.  And the practitioner should still be scheduled to see each chronic care patient periodically, say once a year.  But other than that, the system will run more efficiently if nurses run chronic care clinics as is done in the community.

Interesting Article of the Week

Right in line with the theme of who should run Chronic Care Clinics is this interesting article:

Delegating responsibility from clinicians to nonprofessional personnel: the example of hypertension control.  Margolius, et. al. J Am Board Fam Med. 2012 Mar-Apr;25(2):209-15. doi: 10.3122/jabfm.2012.02.100279.

In this study, the researchers delegated responsibility for Chronic Hypertension Follow-up to non-medically trained “Health Coaches.” These lay Health Coaches spoke to patients in the study frequently and counseled them on hypertension control and answered questions.  These untrained Health Coaches were even authorized to titrate patient blood pressure medications according to a written protocol!  Whoa! This was a “Mikey-Likes-It” type of study–after 6 months, the clinicians involved were asked how they liked the program–and most did, though some disagreed with the medication titration aspect.

I personally do not see those of us in corrections delegating responsibility for chronic care visits to a non-medically trained deputy.  However, if practitioners are running your facility’s Chronic Care Clinics exclusively, I agree with Dr. Stern that it is perfectly appropriate to delegate that responsibility to nurses, as is done in the community.

Who runs the Chronic Care Clinics at your facility?  Nurses, practitioners or a combination of the two? Please comment!

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