Malpractice Suites
Medical Staff Organization and Physician Liability
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| It’s Your Gavel… |
RIGHT PATIENT, WRONG SURGERY
The plaintiff was diagnosed with a herniated disc at L4-L5. His surgeon performed a laminectomy. During a review of the plaintiff’s postoperative X-rays, the surgeon noted that he had mistakenly removed the disc at L3-L4. The plaintiff testified that after the surgery, his condition progressively worsened.
The plaintiff’s expert testified that removal of the healthy disc caused the space between L3-L4 to collapse and the vertebrae to shift and settle. Even the defendant’s expert witness testified that the removal of the healthy disc would increase the likelihood that the plaintiff would be more susceptible to future injuries.
The trial court directed a verdict against the defendant based on the defendant’s own admission and that of his expert that he was negligent and that his negligence caused at least some injury to the patient. The defendant appealed. 1
WHAT IS YOUR VERDICT?
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Describe medical staff organization and committee structure.
• Describe the credentialing and privileging process.
• Discuss the purpose of physician supervision and monitoring.
• List and discuss common medical errors and how they lead to litigation.
• Explain how the physician–patient relationship can be improved.
This chapter provides an overview of medical ethics, medical staff organization, the credentialing process, and a review of cases focused on the legal risks of physicians. The cases presented highlight those areas in which physicians tend to be most vulnerable to lawsuits.
10.1 PRINCIPLES OF MEDICAL ETHICS
The medical profession has long subscribed to a body of ethical guidelines developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.
The following principles adopted by the American Medical Association are not laws, but rather standards of conduct that define the essentials of honorable behavior for the physician.
Code of Medical Ethics
I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific knowledge; maintain a commitment to medical education; make relevant information available to patients, colleagues, and the public; obtain consultation; and use the talents of other health professionals when indicated.
VI. A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people. 2
The following correspondence in the form of a reality check describes one episode of a frustrated patient’s journey of being passed from physician to physician, eventually finding one she thought would help her find the answers to her mysterious disease.
The patient’s hope for answers and possible treatment in this reality check were dashed. The patient began to lose trust in the medical profession. I listened as she explained to me, “I was troubled as I stood looking at the code of medical ethics that hung so prominently in the physician’s waiting room. All the right words were there, only one thing was missing.” I asked her what was missing. She looked at me and emphatically said, “Practice.”
10.2 MEDICAL STAFF ORGANIZATION
The medical staff is formally organized with officers, committees, and bylaws. At regular intervals, the various committees of the medical staff review and analyze their responsibilities, clinical experiences, and opportunities for improvement. The responsibilities of a variety of medical staff committees are described here.
Executive Committee. The executive committee oversees the activities of the medical staff. It is responsible for recommending to the governing body such things as medical staff structure, a process for reviewing credentials and appointing members to the medical staff, a process for delineating clinical privileges, a mechanism for the participation of the medical staff in performance improvement activities, a process for peer review, a mechanism by which medical staff membership may be terminated, and a mechanism for fair hearing procedures. The executive committee reviews and acts on the reports of medical staff departmental chairpersons and designated medical staff committees. Actions requiring approval of the governing body are forwarded to the governing body for approval. Executive committee members generally include the chief of staff, medical staff officers, and department chairs. The chief executive and chief nursing officers are generally nonvoting members of the committee.
| My Hopes for Help Crumble |
When I went to your office, it was with great hopes that someone was finally going to piece together all of the bizarre symptoms I have been experiencing over the last several months and get to the cause of my pain.
I was quite frankly shocked by how I was treated as a patient—especially one experiencing a health crisis.
A medical student examined me. He wrote my history and current health problems on a small “yellow sticky pad.” You were not in the room when he examined me, and then I saw you for approximately 10 minutes.
You took the business card of my New York doctor and said you were going to call him, and then call me regarding what you thought the next steps should be.
I called you on Friday because my local doctor said that you had not called, and I was told you were on vacation until yesterday. I had asked that you call me. You never did. I called you yesterday again, but you did not answer nor did you return my call. On Monday, I received a letter from a medical student, I assume. Although I empathize with the demands on your time, I have never seen a handwritten letter, which I received, informing me of test results I provided to you prior to my appointment with you. You never mentioned the liver enzyme elevations or my February test from New York. Moreover, no mention was made regarding any plan to help me alleviate immediate problems.
Doctor, I am not a complainer or a person with a low pain tolerance. Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side when the pain kicks in, and by 3 o’clock I have to go home and lie down because I’m so weak and tired. I cannot continue to exist like this. It is not normal. If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved. Testing my cholesterol in a month will not address the problem. I’ve been treated for that for three years.
Please call or write to me so I can get another doctor if I have to.
—Anonymous
The physician never responded.
Discussion
1. Discuss how the caregivers failed in their delivery of care and, more importantly, how the patient’s needs were never fully addressed.
2. How would you address this patient’s care with the hospital’s leadership and governing body?
3. Should conduct of this nature be reported to any particular agency or should the matter just go unchecked?
Bylaws Committee. The functioning of the medical staff is described in its bylaws, rules, and regulations, which must be reviewed and approved by the organization’s governing body. Bylaws must be kept current, and the governing body must approve recommended changes. The bylaws describe the various membership categories of the medical staff (e.g., active, courtesy, consultative, and allied professional staff) as well as the process for obtaining privileges.
Blood and Transfusion Committee. The blood and transfusion committee develops blood usage policies and procedures. It is responsible for monitoring transfusion services and reviewing indications for transfusions, blood ordering practices, each transfusion episode, and transfusion reactions. The committee reports its findings and recommendations to the medical staff executive committee.
Credentials Committee. The credentials committee oversees the application process for medical staff applicants, requests for clinical privileges, and reappointments to the medical staff. The committee makes its recommendations to the medical executive committee.
Infection Control Committee. The infection control committee is generally responsible for the development of policies and procedures for investigating, controlling, and preventing infections.
Medical Records Committee. The medical records committee develops policies and procedures as they pertain to the management of medical records, including release, security, and storage. The committee determines the format of complete medical records and reviews medical records for accuracy, completeness, legibility, and timely completion. Medical records are also reviewed for clinical pertinence. The committee ensures that medical records reflect the condition and progress of the patient, including the results of all tests and therapy given, and makes recommendations for disciplinary action as necessary.
Pharmacy and Therapeutics Committee. The pharmacy and therapeutics committee is generally charged with developing policies and procedures relating to the selection, procurement, distribution, handling, use, and safe administration of drugs, biologicals, and diagnostic testing material. The committee oversees the development and maintenance of a drug formulary. The committee also evaluates and approves protocols for the use of investigational or experimental drugs. The committee oversees the tracking of medication errors and adverse drug reactions; the management, control, and effective and safe use of medications through monitoring and evaluation; and the monitoring of problem-prone, high-risk, and high-volume medications utilizing parameters such as appropriateness, safety, effectiveness, medication errors, food–drug interactions, drug–drug interactions, drug–disease interactions, and adverse drug reactions. The committee also performs other such activities that may be delegated to it by the medical executive committee.
Quality Improvement Council. The quality improvement council functions as a patient care assessment and improvement committee. The council generally consists of representatives from the organization’s administration, governing body, medical staff, and nursing.
Tissue Committee. The tissue committee reviews all surgical procedures. Surgical case reviews address the justification and indications for surgical procedures.
Representation on the tissue committee should include the departments of surgery, anesthesiology, pathology, nursing, risk management, and administration.
Utilization Review Committee. The utilization review committee monitors and evaluates utilization issues such as medical necessity and appropriateness of admission and continued stay, as well as delay in the provision of diagnostic, therapeutic, and supportive services. The utilization review committee ensures that each patient is treated at an appropriate level of care. Objectives of the committee include timely transfer of patients requiring alternate levels of care; promotion of the efficient and effective use of the organization’s resources; adherence to quality utilization standards of third-party payers; maintenance of high-quality, cost-effective care; and identification of opportunities for improvement.
10.3 MEDICAL DIRECTOR
The medical director serves as a liaison between the medical staff and the organization’s governing body and management. The medical director should have clearly written agreements with the organization, including duties, responsibilities, and compensation arrangements. State nursing home codes often provide for the designation of either a full-time or part-time physician to serve as medical director. The responsibilities of a medical director include enforcing the bylaws of the governing body and medical staff and monitoring the quality of medical care in the organization.
The medical director of an organization can be liable for failing to perform his or her duties and responsibilities. When a Texas nursing home was indicted by a grand jury in 1981 for the deaths of several residents, the medical director was also indicted. 3 His plea that he merely signed papers and attended meetings did not absolve him of the responsibility to ensure the adequacy and the appropriateness of medical services in the organization.
10.4 MEDICAL STAFF PRIVILEGES
Medical staff privileges are restricted to those professionals who fulfill the requirements as described in an organization’s medical staff bylaws. Although cognizant of the importance of medical staff membership, the governing body must meet its obligation to maintain standards of good medical practice in dealing with matters of staff appointment, credentialing, and the disciplining of physicians for such things as disruptive behavior, incompetence, psychological problems, criminal actions, and substance abuse.
Appointment to the medical staff and medical staff privileges should be granted only after there has been a thorough investigation of the applicant. The delineation of clinical privileges should be discipline-specific and based on appropriate predetermined criteria that adhere to national standards. The appointment, privileging, and credentialing process are discussed below.
Application
The application should include information regarding the applicant’s medical school; internship; residency program; license to practice medicine; board certification; fellowship; medical society membership; malpractice coverage; unique skills and talents; privileges requested and specialty; availability to provide on-call emergency department coverage where applicable; availability to serve on medical staff and/or organization committees; medical staff appointments and privileges at other healthcare organizations; disciplinary actions against the applicant; unexplained breaks in work history; voluntary and/or involuntary limitations or relinquishment of staff privileges; and office location (geographic requirements should not be unreasonably restrictive; if the applicant does not meet the organization’s geographic requirements for residence and office location, provision should be available in the bylaws for exceptions that might be necessary to attract high-quality consulting staff). Board certification, is not generally acceptable criteria for determining eligibility for medical staff appointment.
The primary function of physician board certification is to provide a platform for physician specialists to demonstrate a mastery of the core competencies required to provide the best possible care in a given medical specialty. The American Board of Physician Specialties (ABPS) governs 18 specialty boards that allow physicians to prove they possess the skill and experience necessary to practice their chosen specialties. 4
Fellowship training and medical society membership are also not normally required for medical staff appointment.
Medical Staff Bylaws
The medical staff bylaws should be approved by the medical executive committee and governing body. All applicants for medical staff privileges should be required to sign a statement attesting to the fact that the medical staff bylaws have been read and understood and that the physician agrees to abide by the bylaws and other policies and procedures that may be adopted from time to time by the organization.
Physical and Mental Status
An applicant’s physical and mental status should be addressed prior to the granting of medical appointments and staff privileges. Credentialed members of the medical staff should undergo a medical evaluation prior to reappointment to the medical staff.
Consent for Release of Information
Consent for release of information from third parties should be obtained from the applicant.
Certificate of Insurance
The applicant should provide evidence of professional liability insurance. The insurance policy should provide minimum levels of insurance coverage, with limits (e.g., $1 million to $3 million) determined by the organization.
State Licensure
A physician’s right to practice medicine is subject to the licensing laws contained in the statutes of the state in which the physician resides. The right to practice medicine is not a vested right, but is a condition of a right subordinate to the police power of the state to protect and preserve public health. Although a state has power to regulate the practice of medicine, for the benefit of the public health and welfare, this power is restricted. Regulations must be reasonably related to the public health and welfare and must not amount to arbitrary or unreasonable interference with the right to practice one’s profession. Health professions commonly requiring licensure include chiropractors, dentists, nurses, nurse practitioners, pharmacists, physicians’ assistants, optometrists, osteopaths, physicians, and podiatrists. A statute mandating that the Medical Board of California disclose to the public information regarding its licensees (Cal. Bus. & Prof. Code, § 803.1) and the statute mandating that the board post on the Internet information pertaining to its licensees (Section 2027) did not prohibit the board from posting on its website information regarding a licensee’s completion of probation with a listing of the case number of the case from which the probation arose. 5 Grounds for the revocation of a license to practice medicine include: a clear demonstration of the lack of good moral character, deliberate falsification of a patient’s medical record (to protect one’s own interests at the expense of the patient), intentional fraudulent advertising, gross incompetence, sexual misconduct, substance abuse, performance of unnecessary medical procedures, billing for services not performed, and disruptive behavior.
National Practitioner Data Bank
Healthcare organizations must query the National Practitioner Data Bank (NPDB) for information on applicants seeking medical staff privileges and every 2 years on the renewal of appointments. The NPDB’s principal purpose is to facilitate a more comprehensive review of professional credentials.
References
References should be checked thoroughly. Failure to do so can lead to corporate liability for a physician’s negligent acts. Both written and oral references should be obtained from previous organizations with which the applicant has been affiliated. An action was brought against the hospital in Rule v. Lutheran Hospitals & Homes Society of America 6 for birth injuries sustained during an infant’s breech delivery. The action was based on allegations that the hospital negligently failed to investigate the qualifications of the attending physician before granting him privileges. The jury’s verdict of $650,000 was supported by evidence that the hospital failed to check with other hospitals where the physician had practiced. The physician’s privileges at one hospital had been limited in that breech deliveries had to be performed under supervision.
Interview Process
Prior to interviewing the applicant, the following questions should be answered:
1. Have all documents been received prior to the interview?
2. Are there any unaccounted-for breaks or gaps in education or employment?
3. Has any disciplinary action or misconduct investigation been initiated or are any pending against the applicant by any licensing body?
4. Has the applicant’s license to practice medicine in any state ever been denied, limited, suspended, or revoked?
5. Have the applicant’s medical staff privileges ever been suspended, diminished, revoked, or refused at any healthcare organization?
6. Has the applicant ever withdrawn an application or resigned from any medical staff to avoid disciplinary action prior to a decision being rendered by an organization regarding application for membership?
7. Has the applicant ever been named as a defendant in a lawsuit?
8. Has the applicant ever been named as a defendant in a criminal proceeding?
9. Is the applicant available for emergency on-call coverage?
10. Does the applicant have back-up and cross-coverage?
11. Does the applicant have any special skills or talents?
12. Has the applicant reviewed medical staff bylaws, rules, and regulations, and, where applicable, departmental rules and regulations?
13. Does the applicant agree to abide by the medical staff bylaws, rules, regulations, and other policies and procedures set by the organization?
14. Is the applicant a team player? Can he or she work well with others?
15. Has the applicant ever been restricted from participating in any private or government (e.g., Medicare, Medicaid) health insurance program?
16. Has the applicant’s malpractice insurance coverage ever been terminated by action of an insurance carrier?
17. Has the applicant ever been denied malpractice insurance coverage?
18. Have there been any settlements and/or judgments against the applicant?
19. Does the applicant have any physical or mental impairments that could affect his or her ability to practice the privileges requested?
Delineation of Clinical Privileges
The delineation of clinical privileges is the process by which the medical staff determines precisely what procedures a physician is authorized to perform. This decision is based on predetermined criteria as to what credentials are necessary to competently perform the privileges requested, including education and supervised practice to verify the skills necessary to perform the privileges being requested.
Limitations on Privileges Requested
Dr. Warnick, a pediatrician, obtained associate staff privileges at the Natchez Community Hospital in 1997. She later applied for full privileges through the hospital’s credentials committee. Concern was raised about her alleged difficulty with the intubation of children. As a result, action on Warnick’s request for full privileges was deferred. In May of 1998, the credentials committee recommended full privileges with the exception of neonatal resuscitation. After several in-hospital appeals, Warnick filed a lawsuit. The court determined that there was substantial evidence to support the hospital’s suspension of Warnick’s resuscitation privileges and her right to due process was not violated.
Hospitals licensed in Mississippi pursuant to statute are authorized to suspend, deny, revoke, or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board of such hospital, after consultation with the medical staff, considers such physician to be unqualified because of any of the acts set forth in Miss. Code Ann. § 73-25-93 (1998), provided that the procedures for such actions comply with the hospital and/or medical staff bylaw requirements for due process. In this case, the hospital and medical staff abided by the bylaws and requirements for due process, as evidenced by two hearings afforded to Warnick. She did not complain that she was unable to present all relevant evidence. Her claims were heard in a timely and meaningful manner. 7
Practicing Outside Field of Competency
A physician should practice discretion when treating a patient outside his or her field of expertise or competence. The standard of care required in a malpractice case will be that of the specialty in which a physician is treating, whether or not he or she has been credentialed in that specialty.
In a California case, Carrasco v. Bankoff, 8 a small boy suffering third-degree burns over 18% of his body was admitted to a hospital. During his initial confinement, there was little done except to occasionally dress and redress the burned area. At the end of a 53-day confinement, the patient was suffering hypergranulation of the burned area and muscular-skeletal dysfunction. The surgeon treating him was not a board-certified plastic surgeon and apparently not properly trained in the management of burn cases. At trial, the patient’s medical expert, a plastic surgeon who assumed responsibility for care after the first hospitalization, outlined the accepted medical practice in cases of this nature. The first surgeon acknowledged this accepted practice. The court held that there was substantial evidence to permit a finding of professional negligence because of the defendant surgeon’s failure to perform to the accepted standard of care and that such failure resulted in the patient’s injury.
Governing Body Responsibility
The governing body has the ultimate duty, responsibility, and authority to select the organization’s professional staff and ensure that applicants to the organization’s medical staff are qualified to perform the clinical privileges requested. The duty to select members of the medical staff is legally vested in the governing body as the body charged with managing the organization. In light of the importance of staff appointments, the courts have prohibited an organization from acting unreasonably or capriciously in rejecting physicians for staff appointments or in limiting their privileges.
Misrepresentation of Credentials
There was reliable, probative, and substantial evidence in Graor v. State Medical Board 9 to support the Ohio State Medical Board’s decision to permanently revoke a physician’s license for misrepresenting his credentials by claiming that he was board certified in internal medicine. The evidence submitted supported that, in many instances, the physician falsely indicated that he had American Board of Internal Medicine certification. The board contended that the hearing examiner addressed the physician’s credibility and found many statements to support her conclusion that the physician intended to misrepresent his board status.
Appeal Process
An appeal process should be described in the medical staff bylaws to cover issues such as the denial of professional staff privileges, grievances, and disciplinary actions. The governing body should reserve the right to hear any appeals and be the final decision maker within the organization. A physician whose privileges are either suspended or terminated must exhaust all remedies provided in a hospital’s bylaws, rules, and regulations before considering legal action. The physician in Eidelson v. Archer 10 failed to pursue the hospital’s internal appeal procedure before bringing a suit. As a result, the Alaska Supreme Court reversed a superior court’s judgment for the physician in his action for damages.
Reappointments
Each physician’s credentials and departmental evaluations should be reviewed at a minimum of every 2 years. The medical staff must provide effective mechanisms for monitoring and evaluating the quality of patient care and the clinical performance of physicians. For problematic physicians, consideration should be given to privileges with supervision, a reduction in privileges, suspension of privileges with purpose (e.g., suspension pending further training), or termination of privileges.
10.5 COMMON MEDICAL ERRORS
The NPDB 2012 Annual Report shows that between 2003 and 2012, the number of adverse actions reported to the NPDB related to physicians and dentists increased from 6,149 to 7,765, representing a 26 percent increase. The trend indicates that a small percentage of physicians are responsible for a large proportion of malpractice dollars paid to injured parties. 11
This section provides an overview of some of the more common medical errors as they relate to patient assessments, diagnosis, treatment, and follow-up care. Infections, obstetrics, and psychiatry are discussed later in this chapter to introduce the reader to other common physician risks in the practice of medicine. As with many cases reviewed in the text, there are often multiple headings under which a case could be placed. For example, a poor assessment could lead to the wrong clinical tests, resulting in inappropriate treatment and follow-up care, which can result in major patient injuries or even death. It is important that the reader begin to critically analyze each case and see its application in the overall provision of quality patient care.
It is not enough to perform an assessment and order and get the correct lab test that supports a physician’s order for a potassium infusion, which is started by a nurse. Quality care requires that each caregiver be aware of all the hazards that could lead to patient harm the moment he or she walks into that patient’s room (e.g., is the infusion infiltrating the patient’s tissue?).
The reader should keep in mind when reading this section that “Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties … The fact that a physician charged with allegedly illegal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.” 12
10.6 PATIENT ASSESSMENTS
Patient assessments involve the systematic collection and analysis of patient-specific data that are necessary to determine a patient’s care and treatment plan. A patient’s plan of care is dependent on the quality of those assessments conducted by the practitioners of the various disciplines (e.g., physicians, nurses, dietitians, physical therapists).
The physician’s assessment is based on the patient’s history and physical examination. It must be conducted for elective admissions within 24 hours of a patient’s admission to the hospital. Emergency patients are, out of necessity, evaluated and treated promptly on arrival to the hospital’s emergency department. The findings of the clinical examination are of vital importance in determining the patient’s plan of care. The assessment is the process by which a doctor investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems. A cursory and negligent assessment can lead to a misdiagnosis of the patient’s health problems and/or care needs and, consequently, to poor care. To ensure a comprehensive process for assessing patient care needs, the organization should conduct a self-check, which would include:
• There is a written policy for conducting screenings and assessments.
• Second opinions are obtained as necessary; literature is searched; and other resources are used to provide current, timely, and accurate diagnoses and treatment options for each patient.
• Criteria for nutritional screens and assessments have been developed and approved.
• Nutritional screens and assessments are performed.
• Patients on special diets are monitored to ensure that they have the appropriate food tray.
• Functional screens have been developed and implemented.
• Patients are informed of the risks, benefits, and alternatives to anesthesia, surgical procedures, and the administration of blood or blood products.
• Consent forms are executed and placed in the patient’s record.
• Responsibility has been assigned for ensuring that appropriate surgical equipment, supplies, and staffing are available prior to the administration of anesthesia.
• A pertinent and thorough history and physical have been completed and reviewed prior to surgery.
• A process exists by which there is correlation of pathology and diagnostic findings.
• A preanesthesia assessment has been conducted.
• The surgeon has been credentialed to perform the surgical procedure that he or she is about to perform.
• Vital sign, airway, and surgical site assessments are continuously monitored during the procedure.
• A procedure is in place for conducting instrument and sponge counts prior to closing the surgical site.
• Procedures exist for cleaning and storing all equipment following each invasive procedure.
Unsatisfactory History and Physical
Failure to obtain an adequate family history and perform an adequate physical examination violates a standard of care owed to the patient. In Foley v. Bishop Clarkson Memorial Hospital, 13 the spouse sued the hospital for the death of his wife. During her pregnancy, the patient was under the care of a private physician. She gave birth in the hospital on August 20, 1964, and died the following day. During July and August, her physician treated her for a sore throat. There was no evidence in the hospital record that the patient had complained about a sore throat while in the hospital. The hospital rules required a history and physical examination to be written promptly (within 24 hours of admission). No history had been taken, although the patient had been examined several times in regard to the progress of her labor. The trial judge directed a verdict in favor of the hospital.
On appeal, the appellate court held that the case should have been submitted to the jury for determination. A jury might reasonably have inferred that if the patient’s condition had been treated properly, the strep throat infection could have been combated successfully and her life saved. It also reasonably might have been inferred that if a history had been taken promptly when she was admitted to the hospital, the sore throat would have been discovered and hospital personnel would have been alerted to watch for possible complications of the nature that later developed. Quite possibly, this attention also would have helped in diagnosing the patient’s condition, especially if it had been apparent that she had been exposed to a strep throat infection. The court held that a hospital must guard not only against known physical and mental conditions of patients, but also against conditions that reasonable care should have uncovered.
In another case, the physician in Moheet v. State Board of Registration for the Healing Arts 14 had adequate notice of the charges against him, in that he was fully aware of the link between his failure to obtain an adequate medical history and the possibility of harm to the patient. He had sufficient notice of the allegation of his failure to obtain an adequate patient history, and his own pleading showed that he knew the charges he would be defending against. The testimony of the expert witnesses, combined with the other evidence in the record, constituted competent and substantial evidence to support the commission’s finding of conduct that might be harmful to a patient. There is ample evidence in the record to support a finding of gross negligence.
There was substantial evidence in Solomon v. Connecticut Medical Examining Board 15 to support disciplinary action against a physician where the record indicated that the physician failed to adequately document patient histories, perform thorough physical examinations, adequately assess the patient’s condition order appropriate laboratory tests, or secure appropriate consultations. The Connecticut Medical Examining Board found that the physician had administered contraindicated medications to patients and did not practice medicine with reasonable skill and safety and that his practice of medicine posed a threat to the health and safety of any person. The board concluded that there was a basis on which to subject the physician’s license to disciplinary action.
Assessment of Unconscious Patient
In Ramberg v. Morgan, 16 a police department physician, at the scene of an accident, examined an unconscious man who had been struck by an automobile. The physician concluded that the patient’s insensibility was a result of alcohol intoxication, not the accident, and ordered the police to remove him to jail instead of the hospital. The man, to the physician’s knowledge, remained semiconscious for several days and finally was taken from the cell to the hospital at the insistence of his family. The patient subsequently died, and the autopsy revealed massive skull fractures. The court found that any physician should reasonably anticipate the presence of head injuries when a car strikes a person. Failure to refer an accident victim to another physician or a hospital is actionable neglect of the physician’s duty. Although a physician does not ensure the correctness of the diagnosis or treatment, a patient is entitled to such thorough and careful examination as his or her condition and attending circumstances permit, with such diligence and methods of diagnosis as usually are approved and practiced by healthcare professionals of ordinary or average learning, judgment, and skill in the community or similar localities.
Failure to Obtain a Second Opinion
Dr. Goodwich, an obstetrician and gynecologist (OB/GYN), in Goodwich v. Sinai Hospital, 17 had clinical practice patterns that were subject to question by his peers on a wide variety of medical matters. Dr. Goldstein (Chairman of the Department of Obstetrics and Gynecology) met with him on several occasions in 1988 regarding those concerns. It was suggested to Goodwich that he obtain second opinions from board-certified OB/GYNs; he orally agreed to do so. This agreement was presented to Goodwich in writing on two occasions in 1988. Goodwich failed to comply with the agreement, and Goldstein held a second meeting with him and his attorney in February 1990. As a result of continued noncompliance, Goldstein asked the Director of Quality, Risk, and Utilization Management to determine how often Goodwich failed to obtain a second opinion. The investigation uncovered several instances of noncompliance. Goldstein then met with Goodwich for a third time. Goodwich agreed that he would obtain a second opinion in high-risk obstetrical cases. Goldstein confirmed the agreement in writing on April 23, 1992.
Goldstein left the hospital in June 1992, and Dr. Taylor was appointed acting Chief of Obstetrics and Gynecology. He asked for a recheck of Goodwich’s compliance with the second-opinion agreement. By January, the hospital appointed Dr. Currie as the Chief of Obstetrics and Gynecology. Because of Goodwich’s continuing failure to obtain second opinions, Currie informed Goodwich in writing that pursuant to Article IV, Sec. 7C of the bylaws, rules, and regulations of the hospital’s medical staff, his privileges were temporarily abridged. The letter also advised Goodwich that the medical ethics committee (MEC) would consider a permanent abridgment of his privileges. The MEC met and abridged Goodwich’s privileges for 3 months. The abridgement of Goodwich’s privileges was reported to the Maryland State Board of Physician Quality Assurance and the NPDB.
Goodwich appealed the MEC decision to two different physician panels and the hospital’s governing board. Both physician panels and the governing board affirmed the MEC’s decision to abridge Goodwich’s privileges. Goodwich then sued the hospital for breach of contract, intentional interference with contractual relations, and tortious interference with prospective economic benefit after restrictions were placed on his practice privileges at the hospital. The circuit court entered summary judgment for the hospital on the grounds of statutory immunity. Goodwich appealed, and the court of special appeals held that the hospital acted reasonably, as required for immunity under the federal Health Care Quality Improvement Act of 1986. The record was replete with documentation of questionable patient management and continual failure to comply with second-opinion agreements.
Assessments Sometimes Require Referral to a Specialist
A physician has a duty to refer his or her patient whom he or she knows or should know needs referral to a physician familiar with and clinically capable of treating the patient’s ailments. To recover damages, the plaintiff must show that the physician deviated from the standard of care and that the failure to refer resulted in injury.
The California Court of Appeals found that expert testimony is not necessary where good medical practice would require a general physician to suggest a specialist’s consultation. 18 The court ruled that because specialists were called in after the patient’s condition grew worse, it is reasonable to assume that they could have been called in sooner. The jury was instructed by the court that a general practitioner has a duty to suggest calling in a specialist if a reasonably prudent general practitioner would do so under similar circumstances.
A physician is in a position of trust, and it is his or her duty to act in good faith. If a preferred treatment in a given situation is outside a physician’s field of expertise, it is his or her duty to advise the patient. Failure to do so could constitute a breach of duty. Today, with the rapid methods of transportation and easy means of communication, the duty of a physician is not fulfilled merely by using the means at hand in a particular area of practice.
A directed verdict for the defendants in Vito v. North Medical Family Physicians, P.C., 19 following the plaintiff’s proof, was found to be in error in an action alleging that the defendants were negligent in various aspects of their treatment of the plaintiff’s lower back injury. The plaintiff established through expert testimony that the defendant physician failed to refer him to a specialist from 1996 to 2000 and that such failure was a departure from good medical practice and that the longer a herniation existed, the worse the prognosis. There is a rational process by which the jury could have found that Dr. Bonavita was negligent in failing to refer the plaintiff to a specialist to determine the cause of his pain. The physician allegedly failed to keep proper business records and continued to prescribe OxyContin to the plaintiff, and this negligence caused the plaintiff’s damages. The court denied the defendants’ motion for a directed verdict, reinstated the complaint, and granted a new trial before a different justice.
Aggravation of Patient’s Condition
Aggravation of a preexisting condition through negligence may cause a physician to be liable for malpractice. If the original injury is aggravated, liability will be imposed only for the aggravation, rather than for both the original injury and its aggravation. In Nguyen v. County of Los Angeles, 20 an 8-month-old girl was taken to the hospital for tests on her hip. She had been injected with air for a hip study and suffered respiratory arrest. She later went into cardiac arrest and was resuscitated, but she suffered brain damage that was aggravated by further poor treatment. The Los Angeles Superior Court jury found evidence of medical malpractice, ordering payments for past and future pain and suffering, as well as medical and total care costs that projected to the child’s normal life expectancy.
The plaintiff in Favalora v. Aetna Casualty & Surety Co. 21 sued the hospital and the radiologist for injuries the patient sustained when she fell while undergoing an X-ray examination. The morning after her admission to the hospital, the patient was taken from her room in a wheelchair to the radiology department. When preparations for the GI series were complete, two technicians brought the patient to the X-ray room. She then waited for the arrival of the radiologist. When he arrived, the patient was instructed to walk to the X-ray table and stand on the footboard. The technician instructed her to drink a glass of barium. A second cup of barium was handed to her by the technician who then took the exposed film to a nearby pass box leading to the adjacent darkroom, obtained a new film, and repeated the X-ray process. While the technician was depositing the second set of exposed film in the pass box, the patient suddenly fainted and fell to the floor. The technician heard a noise, immediately turned on the lights, and found the patient lying on the floor. The patient was placed on the X-ray table, and X-rays were taken that revealed a fracture of the neck and of the right femur. As a result, a preexisting vascular condition was aggravated, causing a pulmonary embolism, which, in turn, necessitated additional surgery.
The failure of the radiologist to secure the patient’s medical history before the X-ray examination was considered negligence, constituting the proximate cause of the patient’s injuries. Although a defendant is generally required to compensate a patient for the amount of aggravation caused, it is often difficult to determine what monetary damages should be awarded.
10.7 DIAGNOSIS
Medical diagnosis refers to the process of identifying a possible disease or disease process, thus providing the physician with treatment options. Screens; assessments; reassessments; and the results of medical diagnostic testing such as electroencephalography (EEG), electrocardiography (ECG), imaging, and laboratory findings are some of the tools of medicine that assists providers (e.g., physicians, osteopaths, dentists, podiatrists, nurse practitioners, physician’s assistants) in diagnosing the possible causes of a patient’s symptoms and medical problems, from which a treatment plan is developed. The cases presented here describe some of the lawsuits that have occurred due to misdiagnoses and failure to properly treat the patient based on the results of diagnostic testing.
Failure to Order Diagnostic Tests
A plaintiff who claims that a physician failed to order proper diagnostic tests must show the following:
1. It is standard practice to use a certain diagnostic test under the circumstances of the case.
2. The physician failed to use the test and therefore failed to diagnose the patient’s illness.
3. The patient suffered injury as a result.
Ophthalmologist Fails to Order Tests
In Gates v. Jensen, 22 a lawsuit was brought against Dr. Hargiss, an ophthalmologist, and others for failure to disclose to Mrs. Gates that her test results for glaucoma were borderline and that her risk of glaucoma was increased considerably by her high blood pressure and myopia. Hargiss failed to perform a field vision test and to dilate and examine the eye. He wrote off the patient’s problem of difficulty in focusing and gaps in vision as being related to difficulties with her contact lenses. Gates visited the clinic 12 times during the following 2 years with complaints of blurriness, gaps in her vision, and loss of visual acuity. Gates eventually was diagnosed with glaucoma. By the time Gates was properly treated, her vision had deteriorated from almost 20/20 to 20/200. The court held that a duty of disclosure to a patient arises whenever a physician becomes aware of an abnormality that may indicate risk or danger. The facts that must be disclosed are those facts the physician knows, or should know, that a patient needs to be aware of to make an informed decision on the course of future medical care.
Once a physician concludes that a particular test is indicated, it should be performed and evaluated as soon as practicable. Delay may constitute negligence. The law imposes on a physician the same degree of responsibility in making a diagnosis as it does in prescribing and administering treatment.
Failure to Order Lab Tests
Failure to order diagnostic tests resulted in the misdiagnosis of appendicitis in Steeves v. United States. 23 In this case, physicians failed to order the appropriate diagnostic tests for a child who was referred to a Navy hospital with a diagnosis of possible appendicitis. Judgment in this case was entered against the United States, on behalf of the U.S. Navy, for medical expenses and for pain and suffering. The patient was given a test that indicated a high white blood cell count. A consultation sheet was given to the mother, indicating the possible diagnosis. The physician who examined the patient at the Navy hospital performed no tests, failed to diagnose the patient’s condition, and sent him home at 5:02 PM, some 32 minutes after his arrival on July 21. The patient was returned to the emergency department on July 22, at about 2:30 AM, and was once again sent home by an intern who diagnosed the patient’s condition as gastroenteritis. No diagnostic tests were ordered. The patient was returned to the Navy hospital on July 23, at which time diagnostic tests were performed. The patient was subsequently operated on and found to have a ruptured appendix. Holding the Navy hospital liable for the negligence of the physicians who acted as its agents, the court pointed out that a wrong diagnosis will not in and of itself support a verdict of liability in a lawsuit. However, a physician must use ordinary care in making a diagnosis. Only where a patient is examined adequately is there no liability for an erroneous diagnosis. In this instance, the physicians’ failure to perform further laboratory tests the first two times the child was brought to the emergency department was found to be a breach of good medical practice.
Efficacy of Test Questioned
A medical malpractice action was brought against Mambu in Sacks v. Mambu 24 for failure to make a timely diagnosis of Sacks’s colon cancer. It was alleged that Mambu was negligent in that he failed to properly screen Sacks for fecal occult blood to determine whether there was blood in the colon. Because of complaints of fatigue by the patient, Mambu ordered blood tests that revealed a normal hemoglobin, the results of which suggested that Sacks had not been losing blood. However, by late July 1984, Sacks experienced symptoms of jaundice. Mambu ordered an ultrasound test, and Sacks was subsequently diagnosed with a tumor of the liver. He was admitted to the hospital and diagnosed with having colon cancer. By the time the cancer was detected, it had invaded the wall of the bowel and had metastasized to the liver. Sacks died in March 1985. The trial court entered judgment on a jury verdict for Mambu, and the plaintiff appealed.
The Pennsylvania Superior Court upheld the decision of the trial court. The jury determined that the physician’s failure to administer the test had not increased the risk of harm by allowing the cancer to metastasize to the liver before discovery and, therefore, was not a substantial factor in causing the patient’s death. Although the presence of blood in the stool may be suggestive of polyps, cancer, and a variety of other diseases, not all polyps and cancers bleed. Physicians are therefore in disagreement as to the efficacy of the test.
In another case, at the age of five the plaintiff began to complain about chest pains and trouble breathing. The symptoms reported and the initial testing suggested that the plaintiff either had asthma or cystic fibrosis. Without further testing, the plaintiff’s physician reached a diagnosis of cystic fibrosis and ordered treatment based on that diagnosis. Treatment included daily prescription medication and over 3,000 hours of painful percussion and vibration chest therapy. During percussion and vibration therapy a machine was used to palpitate the chest of the plaintiff in order to break up any secretions in the lungs and clear his airways for improved breathing. In addition to the treatment, the diagnosis took a psychological toll on the patient. The patient was told that he would never be able to have children, his life expectancy was approximately 30 years, and he would eventually have to undergo lung transplant surgery. When the plaintiff entered his preteen years his parents began to question the diagnosis and educated themselves on the disease. After multiple times reaching out to the physician with no response, the parents decided to get a second opinion from a consulting physician. The consulting physician ordered a new test specifically to diagnose cystic fibrosis. The new test came back negative. In the opinion of the consulting physician the plaintiff was never appropriately tested and did not have cystic fibrosis. In this case the jury found in favor of the plaintiff, and awarded him $2,000,000, which was the cap on medical malpractice damages at the time in Virginia. 25
Failure to Promptly Review Test Results
Can a physician’s failure to promptly review test results be the proximate cause of a patient’s injuries? The answer is yes. In Smith v. U.S. Department of Veterans Affairs, 26 the plaintiff, Smith, was first diagnosed as having schizophrenia in 1972. He had been admitted to the Veterans Affairs (VA) hospital psychiatric ward 15 times since 1972. His admissions grew longer and more frequent as time passed. On the occasion of his March 17, 1990, admission, he had been drinking in a bar, got into a fight, and was eventually taken to the VA hospital. Dr. Rizk was assigned as Smith’s attending physician. Smith developed an acute problem with his respiration and level of consciousness. It was determined that his psychiatric medications were responsible for his condition. Some medications were discontinued, and others were reduced. An improvement in his condition was noted.
By March 23, Smith began to complain of pain in his shoulders and neck. He attributed the pain to more than 20 years of service as a letter carrier and to osteoarthritis. His medical record indicated that he had similar complaints in the past. A rheumatology consultation was requested and carried out on March 29. The rheumatology resident conducted an examination and noted that Smith reported bilateral shoulder pain increasing with activity as an ongoing problem since 1979. Various tests were ordered, including an erythrocyte sedimentation rate (ESR).
Smith was incontinent and complained of shoulder pain. By the afternoon, he was out of restraints, walked to the shower, and bathed himself. On returning to his room, he claimed that he could not get into bed. He was given a pillow and slept on the floor. By the morning of April 4, Smith was lying on the floor in urine and complaining of numbness. His failure to move was attributed to his psychosis. By evening, it was noted that Smith could not lift himself and would not use his hands.
On April 5, a medical student noted that Smith was having difficulty breathing and called for a pulmonary consultation. By evening, Smith was either unwilling or unable to grasp a nurse’s hand and continued to complain that his legs would not hold him up.
On the morning of April 6, Smith was complaining that his neck and back hurt and that he had no feeling in his legs and feet. Later that day, a medical student noted that the results of Smith’s ESR was 110 (more than twice the normal rate for a man his age). His white blood count was 18.1, also well above the normal rate. A staff member noted on the medical record that Smith had been unable to move his extremities for approximately 5 days. A psychiatric resident noted that Smith had been incontinent for 3 days and had a fever of 101.1°F.
On the morning of April 7, Smith was taken to University Hospital for magnetic resonance imaging of his neck. Imaging revealed a mass subsequently identified as a spinal epidural abscess. By the time it was excised, it had been pressing on his spinal cord too long for any spinal function to remain below vertebrae 4 and 5.
The plaintiff brought suit alleging that the physicians’ failure to promptly review his test results was the proximate cause of his paralysis. Following a bench trial, the U.S. District Court agreed, holding that the negligent failure of physicians to promptly review laboratory test results was the proximate cause of the plaintiff’s quadriplegia.
Of primary importance was the plaintiff’s ESR of 110; the test results were available on the patient care unit by April 2 but were not seen, or at least not noted in the record, until April 6. An elevated ESR generally accounts for one of three problems: infection, cancer, or a connective tissue disorder. Most experts agreed that, at the very least, a repeat ESR should have been ordered. The VA’s care of the plaintiff fell below the reasonable standard of care in that no one read the laboratory results until April 6. The fact that the tests were ordered mandates the immediate review of the results. Although it cannot be known with certainty what would have occurred had the ESR been read and acted upon on April 2, it is certain that the plaintiff had a chance to fully recover from his infection. By April 6, that chance was gone.
In the absence of notes from Rizk in the plaintiff’s chart, it is impossible to know whether Rizk was aware of the plaintiff’s symptoms. However, it appears that the absence of notes by Rizk indicated that Rizk’s care of the plaintiff was negligent, and the failure to review the lab results constituted negligence under the relevant standard of care. That led to the failure to make an early diagnosis of the plaintiff’s epidural abscess and was the proximate cause of the patient’s eventual paralysis. It was foreseeable that ignoring a high ESR could lead to serious injury.
A mechanism should be in place to expeditiously notify the patient’s physician of abnormal test results.
Computer systems help ensure physicians are notified of critical lab data so that appropriate care decisions can be implemented.
Timely Diagnosis
A physician can be liable for reducing a patient’s chances for survival. The timely diagnosis of a patient’s condition is as important as the need to accurately diagnose a patient’s injury or disease. Failure to do so can constitute malpractice if a patient suffers injury as a result of such failure.
| WRONGFUL DEATH |
Citation: Powell v. Margileth, 524 S.E.2d 434 (Va. 2000)
Facts
On January 9, 1992, Dr. Massey, a specialist in otolaryngology, measured a node in Mr. Powell’s neck as 4 cm by 3 cm and ordered a CT scan. The CT scan conducted on January 11, 1992, indicated that the size of the left cervical mass was a result of an enlarged internal jugular node, which most likely was an abscess. On January 14, 1992, Massey aspirated fluid from the enlarged node. Although he discussed the CT scan with Powell and ordered cultures, he did not suggest a need for an examination to rule out cancer. Because Powell told Massey that he had experienced some exposure to cats, Massey referred Powell to Dr. Margileth, an infectious disease specialist experienced in the diagnosis and treatment of cat scratch disease. On January 27, 1992, Margileth performed tests for tuberculosis and cat scratch disease and measured the swelling in the left anterior-superior neck. He advised Powell that he had cat scratch disease and prescribed antibiotics. The results of the CT scan had been furnished to Margileth.
On February 18, 1992, Massey palpitated the nodule in Powell’s neck, which measured 4 cm × 3 cm × 2.8 cm. Massey performed another examination on April 7, 1992, during the course of which he suggested the possibility of cancer.
In June 1992, Powell discovered a second lump in his neck and, in July, went for help to the VA Medical Center Hospital. A needle aspiration of the two lumps resulted in the diagnosis of cancer, representing a progression from stage III in January 1992 when the CT scan was conducted, to stage IV in July 1992. Powell underwent radiation therapy, surgery, and other treatment but died of cancer 3 years later at the age of 40.
The trial court held that there was not sufficient evidence that would allow a jury of reasonable persons to conclude that the defendant’s breach of the standard of care (1) proximately caused Powell’s injuries; (2) adversely altered the required method of treatment; or (3) adversely affected Powell’s lifespan.
Issue
Did the trial court err in granting the defendant’s motion to strike the plaintiff’s evidence?
Holding
The appeals court ruled that there was adequate evidence that would allow a jury of reasonable persons to conclude that the defendant’s breach of the standard of care proximately caused the decedent’s injuries. The case was remanded for a new trial.
Reason
Dr. Holder, one of the plaintiff’s expert witnesses, testified that the defendant’s misdiagnosis of cat scratch disease caused his patient delay in diagnosis and treatment of his cancer from January until July and that if Powell had been informed of the possibility of cancer in January and options were offered in terms of biopsy for fine-needle aspirations, then Powell would have had a diagnosis of cancer probably in the first week of February. When asked whether the delay in diagnosis and treatment was a direct and proximate cause of the injuries to Powell, Holder answered, “Yes, it was.”
Dr. Ali, who had treated Powell, said he would have had approximately a 75% chance of surviving 5 years compared with the 15% to 20% chance he had in July 1992. Dr. Tercilla, a professor at the Medical College of Virginia, testified that, in his opinion, if Powell had been treated in January as opposed to July, he would have had a higher likelihood of being in control of this disease than he had when he presented at the VA hospital. Dr. Kipreos, a pathologist at the VA center, stated that in her opinion, if Margileth had requested a fine-needle aspiration in January 1992, rather than misdiagnosing Powell with cat scratch disease, Powell’s cancer would have been diagnosed at that time.
Discussion
1. Discuss how the outcome in this case might have been different if Massey had referred his patient to, for example, a family practitioner.
2. Discuss the role of expert testimony in this case.
Radiologists Fail to Make a Timely Diagnosis
A medical malpractice action was brought against a university hospital through its interventional radiologists and other medical employees who failed to timely diagnose and treat the patient’s internal bleeding, which is alleged to have occurred during the performance of an angioplasty that resulted in a hematoma around the patient’s spinal cord, causing paralysis and subsequent loss of use of his limbs. The trial court was found to have erred in directing a verdict against the plaintiff where excluded expert testimony was sufficient to establish evidence of a national standard of care and breach of that standard. The expert had 40 years of experience as a board-certified general surgeon. 27
Failure to Monitor Patient
A medical malpractice action was brought against two obstetricians, a pediatrician, and the hospital in Ledogar v. Giordano 28 because of a newborn infant’s prenatal and postnatal hypoxia, which allegedly caused brain damage resulting in autism. The record contained sufficient proof of causation to support a verdict in favor of the plaintiff when an expert obstetrician testified that both obstetricians were negligent in failing to perform a cesarean section at an earlier time, that the hospital staff departed from proper medical standards of care by not monitoring the fetal heartbeat at least every 15 minutes, and that, with a reasonable degree of medical certainty, it was probable that the fetus suffered hypoxia during labor.
Imaging Studies
Misdiagnosis in general, and especially misdiagnosis related to medical imaging, represents a significant segment of malpractice litigation. Malpractice lawsuits generally involve allegations of misdiagnosis and can often be the result of the failure to order appropriate imaging tests, misinterpretation of an imaging study, failure to consult with a radiologist, failure to review imaging studies, delay in relaying test results, and failure to relay imaging results. Although the following cases describe many of these issues, they are not exhaustive of the problems that can arise in imaging-related lawsuits.
Failure to Order Appropriate Imaging Studies
The failure to order a proper set of X-rays is as legally risky as the failure to order X-rays. In Betenbaugh v. Princeton Hospital, 29 the plaintiff had been taken to the hospital because she injured the lower part of her back. One of the defendant physicians directed that an X-ray be taken of her sacrum. No evidence of a fracture was found. When the patient’s pain did not subside, the family physician was consulted. He found that the films taken at the hospital did not include the entire lower portion of the spine and sent her to a radiologist for further study. On the basis of additional X-rays, a diagnosis of a fracture was made, and the patient was advised to wear a lumbosacral support. Two months later, the fracture was healed. The radiologist who had taken X-ray films on the second occasion testified that it was customary to take both an anterior-posterior and a lateral view when making an X-ray examination of the sacrum. In his opinion, the failure at the hospital to include the lower area of the sacrum was a failure to meet the standard required. The family physician testified that if the patient’s fracture had been diagnosed at the hospital, then appropriate treatment could have been instituted earlier and thus the patient would have suffered less pain and recovery time would have been reduced. The evidence was sufficient to support findings that the physicians and the hospital were negligent by not having taken adequate X-rays and that such negligence was the proximate cause of the patient’s additional pain and delay in recovery.
Image Misinterpretation Leads to Death
The deceased, Jane Fahr, in Setterington v. Pontiac General Hospital, 30 was concerned about a lump in her thigh. She had a computed tomography (CT) scan taken at Pontiac General Hospital in August 1987. The radiologist, Dr. Mittner, did not mention that the lump could be cancerous. In reliance on the radiologist’s report, Dr. Sanford, the plaintiff’s treating physician, regarded the condition as a hematoma and believed that a biopsy was not warranted. In late January 1988, Fahr returned to Pontiac General Hospital for another CT scan because the lump seemed to be enlarging. The radiologist, Dr. Khalid, did not include the possibility of a malignant tumor in his report. As a result, Sanford continued to believe that Fahr had a hematoma. In early September 1988, Fahr returned to Sanford, who had another CT scan performed. Dr. Kayne, the radiologist, found an enlarged hematoma. In a follow-up discussion with Sanford, Kayne assured Sanford that the lump did not appear to be dangerous or invasive. As a result, Sanford concluded that Fahr had a hematoma with a leaking blood vessel. In October 1988, the tumor was biopsied and the cancer diagnosed. By December 1988, chest scans revealed metastasis. Fahr died on July 6, 1990, at the age of 32. Setterington, Fahr’s personal representative, brought a malpractice action against Sanford and Pontiac General Hospital, alleging that they failed to timely diagnose and treat Fahr.
The jury found that the radiologists were agents of defendant Pontiac General Hospital and breached the standard of care. The jury also concluded that the breach was a proximate cause of Fahr’s death. The jury returned a verdict for the plaintiff in the amount of just over $251,000. The trial court denied the plaintiff’s motion for a new trial as to damages, as well as the defendant’s motion for a new trial.
The court found that the evidence as to the malpractice of Khalid and Kayne supported the jury’s finding that they were professionally negligent. Kayne failed to diagnose the cancer in September 1988. With a proper diagnosis, there could have been a full month or more of treatment before metastasis was visible in December. As to Khalid, whose malpractice was 7 months earlier, the conclusion is even stronger.
The hospital provided the plaintiff with the radiologists. The evidence supports the jury’s finding that an agency relationship existed between the radiologists and the hospital. Fahr did not have a patient–physician relationship with the radiologists independent of the hospital setting. Rather, the radiologists just happened to be on duty when Fahr arrived at the hospital. Moreover, the evidence showed that the radiology department is held out as part of the hospital, leading patients to understand that the services are being rendered by the hospital.
Failure to Consult with Radiologist
The internist in Lanzet v. Greenberg 31 failed to consult with the radiologist after his conclusion that the patient suffered from congestive heart failure. This factor most likely contributed to the death of the patient while on the operating table.
Failure to Read Images
The patient in Tams v. Lotz 32 had to undergo a second surgical procedure to remove a laparotomy pad that had been left in the patient during a previous surgical procedure. The trial court was found to have properly directed a verdict with respect to the patient’s assertion that the surgeon who performed the first operation failed to read a postoperative X-ray report, which allegedly would have put him on notice both that the pad was present and that there was a need for emergency surgery to remove the pad, therefore averting the need to remove a portion of the patient’s intestine.
Delay in Conveying Imaging Results
On April 20, Mr. Carrasco 33 was taken to the Tri City Community Hospital (Tri City) emergency department by ambulance, complaining of back pain. He was admitted for observation and then released on April 21. On April 22, Carrasco returned to Tri City complaining of continued back pain and the inability to stand. A chest X-ray taken on April 22 revealed a significantly widened mediastinum and an increase in the size of the cardiac silhouette. The radiologist on April 24 reported that the X-ray revealed that in the setting of back pain, an aortic dissection should be considered.
Carrasco’s condition deteriorated on April 24 and he was air lifted to Methodist Hospital in San Antonio for care. A CT scan was taken which revealed an aneurysm of the thoracic aorta and Carrasco underwent emergency surgery. The following day, Carrasco suffered a pericardial effusion, had emergency surgery, coded, and died.
Tri City and the emergency department physician were sued. Tri City filed a motion for summary judgment, asserting that the plaintiffs failed to show it breached the standard of care owed to the patient. The trial court granted summary judgment on this ground.
Because Carrasco’s condition did not deteriorate until April 24, an inference could be made that the rupture occurred sometime on April 24. The Texas Court of Appeals found that the evidence presented was sufficient to reverse the trial court’s judgment and remand the case for trial.
Failure to Communicate Imaging Results
The court of appeals in Washington Healthcare Corp. v. Barrow 34 held that evidence was sufficient to sustain a finding that the hospital was negligent in failing to provide a radiology report demonstrating pathology on patient Barrow’s lung in a timely manner. An X-ray of the patient taken on April 4, 1982, disclosed a small nodular density in her right lung. Within a year, the cancerous nodule had grown to the size of a softball.
The most significant testimony at trial was that of Theresa James, a medical student who worked for Dr. Oweiss, the defendant, until April 23, 1982. James testified that her job entailed combing through Oweiss’s mail and locating abnormal X-ray reports, which she then would bring to his attention. James claimed that she received no such report while working for the physician, thus accounting for 19 days after the X-ray was taken. James stated that the X-ray reports were usually received within 4 or 5 days after being taken. Dr. Odenwald, who dictated the patient’s report on April 4, 1982, gave testimony to corroborate her testimony. Odenwald, of Groover, Christie and Merritt, PC (GCM), who operated the radiology department at the Washington Hospital Center (WHC), stated that the X-ray reports usually were typed and mailed the same day that they were dictated. The jury could have determined that if the report did not reach Oweiss by April 23, 1982, then it did not reach him by May 3, 1982. The patient’s record eventually was found; however, it was not in the patient’s regular folder. Therefore, one could infer that the record was negligently filed.
Questions also arise as to why Oweiss did nothing to follow up on the matter in ensuing months. Oweiss testified that he did receive the report by May 3, 1982, and that he informed Mrs. Barrow of its contents. Barrow stated that although her folder was on the physician’s desk at the time of her visit, he did not relay to her any information regarding an abnormal X-ray. Oweiss, however, was severely impeached at trial, and the jury chose not to believe him. Considering the entire record, there was reasonable probability that WHC was negligent and that Oweiss had not received the report. The plaintiff settled with Oweiss, the patient’s personal physician, in the amount of $200,000 during pendency in the district court, and the action against him was dismissed with prejudice. The record did not support WHC’s request of indemnification from Oweiss. The trial court directed a verdict in favor of GCM, leaving WHC as the sole defendant. The court of appeals remanded WHC’s cross claim for indemnification from GCM for further findings of fact and conclusions by the trial court.
Misdiagnosis
Misdiagnosis is the most frequently cited injury event in malpractice suits against physicians. Medicine is not an exact science and linking a patient’s symptoms to a specific ailment is complicated at best. Sometimes things go wrong despite all the advances of modern medicine. Although diagnosis is a medical art and not an exact science, early detection can be critical to a patient’s recovery. Misdiagnosis may involve the diagnosis and treatment of a disease different from that which the patient actually suffers or the diagnosis and treatment of a disease that the patient does not have. Misdiagnosis in and of itself will not necessarily impose liability on a physician, unless deviation from the accepted standard of care and injury can be established. The reader here is presented with a variety of cases that illustrate how things can go wrong due to poor judgment and negligent acts that result in patient injuries.
| When Your Doctor Doesn’t Know |
Patients who go for years without a diagnosis often are “medical disasters,” says William Gahl, M.D., Ph.D., director of the NIH’s Undiagnosed Diseases Program, which was launched in May 2008 to study some of the most difficult-to-diagnose medical cases. “They may be given diagnoses based on spurious test results that lead to treatments that are inappropriate or even harmful,” he says. “And living for years without a diagnosis can accrue all sorts of complications.”
—Mary A. Fisher, AARP, July/August 2011
Mitral Valve Malfunction
In Lauderdale v. United States, 35 the federal government was held liable under the Federal Tort Claims Act for the death of a patient whose mitral valve malfunction was misdiagnosed at a military medical clinic. Under applicable Alabama law, the physician failed to conduct the necessary tests to determine the cause of a suspected heart problem. The physician never indicated to the patient that the problem was severe, that the treatment with digoxin was tentative, and that his well-being mandated that he return in a week. The patient subsequently died. He was found not to have been contributorily negligent by failing to return to the clinic. The patient had not been told sufficiently of the urgency of a return visit. This failure was considered the proximate cause of the patient’s death because his illness might have been treated successfully.
| FAILURE TO FORM A DIFFERENTIAL DIAGNOSIS |
Citation: Corley v. State Department of Health & Hospitals, 749 So. 2d 926 (La. App. 1999)
Facts
Corley began experiencing low back pain on February 11, 1988. He sought medical treatment from Dr. Gremillion. Corley complained that he had been experiencing low back pain and abdominal discomfort for approximately 4 months. At Corley’s request, Gremillion ordered X-rays of the lower spine, chest, kidneys, and gallbladder, as well as an upper gastrointestinal series. Gremillion, feeling that a specialist should see Corley, then gave him a written referral to a medical center for an orthopedic evaluation.
On March 2, 1988, Corley went to the medical center’s emergency department with his wife. The Corleys presented admitting personnel with Corley’s records from Gremillion, including X-rays and other test reports. Dr. Fuller, an emergency department physician, took a history from Corley and reviewed Gremillion’s notes and the X-ray reports. He also conducted a routine physical examination and had X-rays made of Corley’s lower back. Fuller’s impression was that Corley was suffering from low back pain. Fuller continued Corley on the medication prescribed by Gremillion and made an appointment for him with the orthopedic clinic on March 16, 1988. On that date, a fourth-year resident, Dr. Bridges, saw Corley in the orthopedic clinic. Bridges conducted a physical exam, which was normal, and started Corley on a conservative course of treatment for low back pain.
Dr. Mehta next saw Corley on April 20, 1988. Mehta’s notes reflect that his physical exam of Corley was normal but that he felt that Corley had a posture problem and referred him to physical therapy for correction of his posture. The notes do not reflect whether Mehta reviewed any of Corley’s previous medical records, X-rays, or reports.
On September 14, 1988, Corley was seen by a surgical resident, Dr. White, who, during the course of the examination, ordered a CT scan of Corley’s lower back. Dr. Ellis, a radiologist at the medical center, interpreted the CT scan as showing arthritis consistent with fibrosis or spinal stenosis and possible edema of the right L5 nerve root, which, according to White, may or may not have been the cause of Corley’s back pain. White did not review any of the previous medical records, X-rays, or reports. Corley’s last visit to the medical center was September 21, 1988. On that date, White reviewed the results of the CT scan with Corley, continued him on an anti-inflammatory drug, and encouraged him to continue his back exercises.
On October 26, 1988, Corley, plagued by constant back pain and beginning to experience difficulty breathing, consulted Dr. Maxwell, a chiropractor, who did a full spinal X-ray that revealed a markedly diminished right lung area. Maxwell sent Corley to his father, also a chiropractor, who confirmed that there was a potential problem with Corley’s right lung and recommended that he see a pulmonary specialist.
On October 31, 1988, Corley presented to Gremillion complaining of chest congestion and shortness of breath. Gremillion diagnosed him with bronchitis and implemented treatment. Corley returned to Gremillion on November 14, 1988, with complaints of shortness of breath and marked weight loss. Subsequent diagnostic testing confirmed the presence of a very large mass (cancer) in Corley’s right chest. Prior to his death on January 23, 1990, Corley received radiation and chemotherapy treatment.
Corley’s surviving spouse and son instituted a malpractice action seeking wrongful death and survival damages. The trial court rendered judgment in favor of the plaintiffs and against the medical center in the amount of $400,000. The defendants, the state, and the medical center appealed.
Issue
The primary issue on appeal is whether the trial court committed error in finding that the physicians at the medical center deviated from the applicable standard of care by failing to properly diagnose Corley’s condition, a large cancerous mass in his mediastinum, during the course of their treatment of his low back pain.
Finding
The physicians at the medical center fell below the standard of care when they failed to properly diagnose Corley’s condition.
Reason
The evidence was in Gremillion’s X-rays and medical report when Corley first arrived at the medical center. When Corley did not respond to conservative treatment, there had to be another explanation for his low back pain. The physicians did not expand their inquiry, which they should have done under a differential diagnosis assessment. A physician is required to take a “thorough” history based on a patient’s presenting signs and symptoms. If the findings from the medical history and physical exam support a diagnosis, one should be made and treatment instituted. When, in treating a patient, a diagnosis cannot be made, at that time, a differential diagnosis should be made, which includes all reasonable, plausible, and foreseeable causes, signs, and symptoms noted. After forming a differential diagnosis, it is the physician’s duty to rule out all imminent, serious, and life-threatening causes related to the signs and symptoms. Failure to eliminate these causes can subject a patient to a foreseeable risk of harm and would further constitute a breach of the applicable standards of care.
Discussion
1. Why is it important to be able to make differential diagnoses?
2. Why did the appellate court find that the trial court had not erred in finding that the physicians deviated from the applicable standard of care in their diagnosis and treatment of Corley?
Appendicitis
Misdiagnosis does not always end in a verdict for the plaintiff. Summary judgment was properly entered in dismissing an action alleging that a physician had been negligent in failing to diagnose a pregnant patient’s appendicitis in Fiedler v. Steger. 36 The testimony of expert witnesses for both parties established that diagnosis of appendicitis during pregnancy is difficult, that it probably would not have been diagnosed on the dates in question, and that the appendix had probably ruptured postpartum.
Diabetic Acidosis
A case before the Mississippi Supreme Court, Hill v. Stewart, 37 involved a patient who became ill and was admitted to the hospital. The physician was advised of the patient’s recent weight loss, frequent urination, thirst, loss of vision, nausea, and vomiting. Routine laboratory tests were ordered including a urinalysis, but not a blood glucose test. On the following day, a consultant diagnosed the patient’s condition as severe diabetic acidosis. Treatment was given, but the patient failed to respond to the therapy and died. The attending physician was sued for failing to test for diabetes and for failing to diagnose and treat the patient on the first day in the hospital. The attending physician said in court that he suspected diabetes and admitted that when diabetes is suspected, a urinalysis and a blood sugar test should be performed. An expert medical witness testified that failure to do so would be a departure from the skill and care required of a general practitioner. The expert also stated that the patient in this case probably would have had a good chance of survival if treated properly. The state supreme court reversed the directed verdict for the physician by a lower court and remanded the case for retrial. There was sufficient evidence presented to permit the case to go to the jury for decision.
Once a physician concludes that a particular test is indicated, it should be performed and evaluated as soon as practicable. Delay may constitute negligence. The law imposes on a physician the same degree of responsibility in making a diagnosis as it does in prescribing and administering treatment.
Pathologist Fails to Diagnose Cancer
Condon, in Anne Arundel Med. Ctr., Inc. v. Condon, underwent a routine mammogram, which was ordered by her gynecologist on July 1, 1988. The mammogram revealed suspicious lesions in her right breast. Advised by her physician that her breast needed further examination, the patient selected Dr. Moore, a surgeon, to perform a biopsy at AA Medical Center (AAMC). The biopsy was ultimately performed on July 19, 1988. Dr. Williams, who was a pathologist working for Weisburger, MD, a pathology corporation providing contract pathology services to the hospital, performed an evaluation of the tissue. Williams reported noncancerous lesions in the right breast. Based on the pathology report, the surgeon advised the patient that she did not have cancer but that she should undergo frequent mammograms.
On February 7, 1990, the patient returned to her surgeon complaining of an inflammation of her right breast in the same area of her previous biopsy. The surgeon again recommended and performed a biopsy on February 15. Condon was advised that the biopsy results indicated invasive carcinoma of the breast. On February 23, 1990, Condon underwent a bilateral modified radical mastectomy.
Condon brought a malpractice action against Williams and AAMC, alleging the pathologist incorrectly interpreted the first biopsy specimen and that the pathologist’s failure to interpret invasive carcinoma was a departure from the standard of care required and was the proximate cause of her injuries. On the eve of trial, December 9, 1992, counsel for the pathologist settled the claim against his client for $1 million. The circuit court entered judgment on a jury verdict in favor of the plaintiff. AAMC appealed, claiming that the release of the agent Williams served to act as a release for AAMC. The appellant claimed that the common law rule, which states that the release of an agent discharges the principal from liability, should, therefore, apply. The Court of Special Appeals of Maryland agreed. 38
Radiologist Misreads Patient’s X-Rays
In Boudoin v. Nicholson, Baehr, Calhoun, & Lanasa, 39 expert testimony supported a finding of loss of chance to survive. A diagnostic radiologist’s improper reading of a patient’s X-ray resulted in a loss of chance to survive a chest wall cancer. Boudoin had suffered a minor shoulder injury while lifting an object at his job as a pipefitter. Because the pain did not subside after a few days, on May 19, he went to see Dr. Nicholson, the family practitioner who had treated him since he was 18. Based on Boudoin’s complaint of pain in the outer chest and a physical examination, Dr. Nicholson took a chest X-ray that, in his opinion, showed nothing remarkable and diagnosed Boudoin’s injury as a muscle strain and prescribed accordingly. Nevertheless, he sent the X-ray to be evaluated by a diagnostic radiologist, Hendler. The radiology report returned to Nicholson read in part:
CHEST: Cardiac, hilar, and mediastinal shadows do not appear unusual. Both lung fields and angles appear clear. A 3.5-cm. broad-based benign osteomatous projection is noted at the level of the vertebral border of the inferior aspect of the left scapula.
IMPRESSION: 1—No evidence of active pulmonary or cardiac pathology.
Boudoin did not contact Nicholson again until January 1989, when he complained of discomfort in his neck and pain in his right shoulder blade and arm. Nicholson again ruled out serious injury through a cervical X-ray, resulting in a diagnosis of cervical spasm, degenerative discs, and bilateral spondylosis. On April 18, 1989, Boudoin returned to Nicholson complaining of night sweats, weight loss, and pain in his left chest. A chest X-ray showed a large abnormal mass. Boudoin was given both the 1988 X-ray and the one just taken and was immediately sent to see a pulmonologist, Dr. Rosenberg. While Boudoin was undergoing a breathing test, Rosenberg called Mrs. Boudoin into his office and showed her the tumor as it appeared on the X-rays taken 11 months apart and also had her read Hendler’s May 1988 report. Rosenberg told Mrs. Boudoin that the tumor could have been removed easily when it was as small as it first appeared. Although the tumor initially appeared to be on Boudoin’s left lung, innumerable tests and examinations established that the cancer was malignant and was in the pleura, the tissue lining the chest wall. No sign of metastasis was found in the lymph nodes of the chest or other tissues. Dr. Rigby surgically removed the tumor, now measuring 20 by 17.5 by 7 cm on May 10, 1989, along with a large portion of the chest wall and four ribs. Because a 4- or 5-mm metastatic deposit was found in Boudoin’s right diaphragm, a section of that tissue also was removed. There was no sign of cancer on the lungs. A metal plate was implanted to replace the structural support lost with the removal of the ribs. After recovering from his surgery, Boudoin underwent concurrent radiation and chemotherapy. X-rays and examinations done every other month through March 1990 showed no signs of recurrence. Four months later, however, abnormalities were detected, and a second surgery, performed on July 20, 1990, revealed that the tumor had spread. As a result of the significant spread of cancer, the only tissue removed during surgery was a biopsy sample, which confirmed a malignant recurrence. Boudoin and his family were informed that even with chemotherapy, the prognosis was very poor. Further treatment was restricted to alleviating pain until Boudoin’s death on December 18, 1990. Hendler appealed an award of $560,000 based on a jury’s finding that the physician’s improper reading of Boudoin’s X-ray resulted in a loss of chance to survive a chest wall cancer. The appeals court affirmed the finding of liability and causation but reduced the amount of the award.
Failure to Read X-Ray Report
On February 5, 1988, Mr. Griffett had been taken to the emergency department with a complaint of abdominal pain. 40 Two emergency department physicians evaluated him and ordered X-rays, including a chest X-ray. Dr. Bridges, a radiologist, reviewed the chest X-ray and noted in his written report that there was an abnormal density present in the upper lobe of Griffett’s right lung. Griffett was referred to Dr. Ryan, a gastroenterologist, for follow-up care. Ryan admitted Griffett to the hospital for a 24-hour period and then discharged him without having reviewed the radiology report of the February 5 chest X-ray. On March 1, 1988, Griffett continued to experience intermittent pain. A nurse in Ryan’s office suggested that Griffett go to the hospital emergency department if his pain became persistent.
In November 1989, Dr. Baker examined Griffett, who was complaining of pain in his right shoulder. Baker diagnosed Griffett’s condition as being cancer of the upper lobe of his right lung. The abnormal density on the February 5, 1988, chest X-ray was a cancerous tumor that had doubled in size from the time it had been first observed. The tumor was surgically removed in February 1990; however, Griffett died in September 1990.
Dr. Muller, an internist and expert witness for the plaintiff, testified that Griffett would have had a greater likelihood of survival if Ryan had made an earlier diagnosis. The defendants objected to Muller’s testimony, arguing that the plaintiff failed to establish that Muller was an expert witness capable of testifying as to the proximate cause of Griffett’s alleged shorter life span. The trial court initially overruled the defendants’ objection to Muller’s testimony.
The jury returned a verdict for the plaintiff in the amount of $500,000. On a motion from the defendants, the trial court set aside the verdict, ruling that it erred by allowing Muller to testify as to causation. The plaintiff appealed, and the Virginia Supreme Court held that the plaintiff had sufficiently identified Muller as an expert witness capable of testifying as to the question of causation. Evidence was sufficient to establish that the failure to diagnose lung cancer, in connection with the emergency department visit, was the proximate cause of the patient’s death. The duty to review an X-ray contained in a patient’s medical record should not vary between an internist and a gastroenterologist. Evidence showed that Ryan’s negligence destroyed any substantial possibility of Griffett’s survival.
10.8 TREATMENT
This section focuses on negligence cases that relate to medical treatment and various legal and ethical issues that healthcare professionals encounter when treating patients. Medical treatment is the attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical techniques, including the use of medications for the purpose of treating an illness or trauma. Treatment can be active treatment, directed immediately to the cure of the disease or injury; causal treatment, directed against the cause of a disease; conservative treatment, designed to avoid radical medical therapeutic measures or operative procedures; expectant treatment, directed toward relief of untoward symptoms but leaving cure of the disease to natural forces; palliative treatment, designed to relieve pain and distress with no attempt to cure; preventive/prophylactic treatment, aimed at the prevention of disease and illness; specific treatment, targeted specifically at the disease being treated; supportive treatment, directed mainly to sustaining the strength of the patient; or symptomatic treatment, meant to relieve symptoms without effecting a cure (i.e., intended to address the symptoms of an illness but not its underlying cause, as in scleroderma, lupus, or multiple sclerosis, for example).
Medical Practice Guidelines are evidence-based best practices that are developed to assist physicians in the diagnosis and treatment of their patients. It should be remembered that best practices are not iron-clad rules. Skillful medical judgment demands that the physician determine how to use best practices and interpret the information.
Choice of Treatment
There can be two schools of thought as to which treatment would be in the best interest of the patient. The potential for liability affects the choice of treatment a physician will follow with his or her patient. Use of unprecedented procedures that create an untoward result may cause a physician to be found negligent even though due care was followed. A physician will not be held liable for exercising his or her judgment in applying a course of treatment supported by a reputable and respected body of medical experts even if another body of expert medical opinion would favor a different course of treatment. The two schools of thought doctrine is only applicable in medical malpractice cases in which there is more than one method of accepted treatment for a patient’s disease or injury. Under this doctrine, a physician will not be liable for medical malpractice if he or she follows a course of treatment supported by reputable, respected, and reasonable medical experts.
A physician’s efforts do not constitute negligence simply because they were unsuccessful in a particular case. A physician cannot be required to guarantee the results of his or her treatment. The mere fact that an adverse result may occur following treatment is not in and of itself evidence of professional negligence.
Selecting the Wrong Treatment
Although there can be two schools of thought on how to treat a patient, the failure of an attending physician to carefully recognize recommendations by consulting physicians, who determines a different diagnosis and recommends a different course of treatment in a particular case, can result in liability for damages suffered by the patient. That was the case in Martin v. East Jefferson General Hospital 41 in which the attending physician continued to treat the patient for a viral infection despite three other physicians’ diagnoses of lupus and their recommendations that the attending physician treat the patient for collagen vascular disease. The trial court found that lupus had been more probable than not the cause of the patient’s death and that her chances of recovery had been destroyed by the physician’s failure to rule out that diagnosis. Damages totaling $150,000 were awarded to the plaintiff.
If a consulting physician has suggested a diagnosis with which the treating physician does not agree, it would be prudent to consider obtaining the opinion of a second consultant who could either confirm or disprove the first consultant’s theory. Failure to diagnose and properly treat a suspected illness is an open door to liability.
Delay in Treatment
A physician may be liable for failing to respond promptly if it can be established that such inaction caused a patient’s death. 42 A patient afflicted with lung cancer was awarded damages in Blackmon v. Langley 43 because of the failure of the examining physician to inform the patient in a timely manner that a chest X-ray showed a lesion in his lung. The lesion eventually was diagnosed as cancerous. The physician contended that because the evidence showed the patient had less than a 50% chance of survival at the time of the alleged negligence, he could not be the proximate cause of injury. The Arkansas Supreme Court found that the jury was properly entitled to determine that the patient suffered and lost more than would have been the case had he been notified promptly of the lesion.
| Lab Results Buried in Files |
When a woman has a pelvic exam, she expects her doctor to let her know if there’s a problem. But that didn’t happen for Charlene Hutchens in 2002 or in 2003. It wasn’t until 2004 that she learned she had advanced cervical cancer.
The gynecologist who failed to tell her about her abnormal test results, David Lubetkin of Boca Raton, robbed her of peace of mind and the ability to have children, she told the Florida Board of Medicine on Saturday. “I don’t want this to happen to any other person,” said Hutchens, now 27. “It’s destroyed my life.”
Lubetkin, who conceded there were mistakes and apologized to Hutchens at the hearing in Fort Lauderdale, was given the maximum fine, $20,000.
—Carol Gentry, Health News Florida, June 5, 2010.
Untimely Cesarean Section
The attending physician in Jackson v. Huang 44 was negligent in failing to perform a timely cesarean section. The attending physician applied too much traction when he was faced with shoulder dystocia, a situation in which a baby’s shoulder hangs under the pubic bone, arresting the progress of the infant through the birth canal. As a result, the infant suffered permanent injury to the brachial plexus nerves of his right shoulder and arm. On appeal of this case, no error was found in the trial court’s finding of fact when such finding was supported by testimony of the plaintiff’s expert witness. The trial judge accepted the testimony of Dr. Forte, the expert witness, who testified that the defendant possessed the necessary skill and knowledge relevant to the practice of obstetrics and gynecology. The defendant, because of prolonged labor and weight of the baby, should have anticipated the possibility of shoulder dystocia and performed a timely cesarean section.
Failure to Treat Known Condition
A medical malpractice action was filed against the physician in Modaber v. Kelley 45 for personal injuries and mental anguish caused by the stillbirth of a child. The circuit court entered judgment on a jury verdict against the obstetrician, and an appeal was taken. The Virginia Supreme Court held that the evidence was sufficient to support a finding that the obstetrician’s conduct during the patient’s pregnancy caused direct injury to the patient. Evidence at trial showed that the physician failed to treat the mother’s known condition of toxemia, including the development of high blood pressure and the premature separation of the placenta from the uterine wall, and that the physician thereafter failed to respond in a timely fashion when the mother went into premature labor. The court also held that injury to the unborn child constituted injury to the mother and that she could recover for the physical injury and mental anguish associated with the stillbirth. The court found that the award of $750,000 in compensatory damages was not excessive.
Failure to Treat Evolving Emergency
The Bureau of Professional Medical Conduct (BPMC), in Bell v. New York State Department of Health, 46 upon investigation of a complaint charged that the physician failed to properly treat and respond to his patient’s evolving emergency cardiac condition despite symptoms and circumstances indicating the need for immediate hospitalization. The physician denied the allegations, and the State Board for Professional Medical Conduct (committee) conducted a hearing.
When the patient visited the physician in September 1994, he was suffering from high blood pressure and taking medication for that condition. From 1994 to 1996, the patient was treated for various medical conditions, including high cholesterol and hypertension. On May 29, 1997, the patient visited the physician complaining of chest pains, anxiety panic attacks, and shortness of breath. During that visit, the physician performed an electrocardiogram (ECG), ordered chest X-rays, and referred the patient to a cardiac specialist for consultation. The physician also ordered a test for cardiac enzymes; however, the results were not available for several days. The physician prescribed asthma medication and sent the patient home. The next day, the physician attempted to call the patient to inquire about his condition but was unable to reach him. Within less than a week, on June 2, 1997, the patient returned to the physician’s office complaining of continued chest pain. At that time, the physician arranged a visit with the cardiologist for the same day. The cardiologist reviewed the patient’s medical history; performed an ECG; reviewed the May 29, 1997, ECG; and concluded that the patient had a myocardial infarction followed by postinfarction angina. The patient was immediately sent to the hospital. The physician was not present at the hearing and did not call any witnesses to rebut BPMC’s expert witness. Expert opinion revealed that the physician’s response to the patient’s symptoms on May 29, 1997, and June 2, 1997, failed to meet medically acceptable standards of care. On February 21, 2001, the committee sustained the charge of negligence.
The physician’s license was suspended for 2 years; however, the suspension was stayed, and the physician was placed on probation.
On appeal, the Supreme Court of New York found that given the serious nature of the patient’s complaints and symptoms and the potential consequences, the committee’s conclusions were found by the court to be supported by substantial evidence. According to Greenburg (one of the defendants in the case), the physician’s course of conduct in performing an ECG, ordering a cardiac enzyme test, and referring the patient to a cardiologist demonstrated that the physician suspected that the patient was experiencing cardiac problems. However, given the patient’s symptoms and history, it was Greenburg’s opinion that the physician failed to adhere to medically acceptable standards of treatment by failing to obtain the results of the cardiac enzyme test expeditiously and not referring the patient to an emergency department immediately.
Failure to Respond to Emergency Calls
Physicians on call in an emergency department are expected to respond to requests for emergency assistance when such is considered necessary. Failure to respond is grounds for negligence should a patient suffer injury as a result of a physician’s failure to respond.
Issues of fact in Dillon v. Silver 47 precluded summary dismissal of an action charging that a woman’s death from complications of an ectopic pregnancy occurred because of a gynecologist’s refusal to treat her despite a request for aid by a hospital emergency department physician. Although the gynecologist contended that no physician–patient relationship had ever arisen, the hospital bylaws not only mandated that the physician accept all patients referred to him, but also stated that the emergency department physician had authority to decide which service physician should be called and required the service physician to respond to such a call.
Medication Errors
Thousands of brand and generic drugs in use have led to an increase in medication errors. Such errors are a leading cause of patient injuries. Physicians should encourage the limited and judicious use of all medications and periodically document the reason for their continuation. They should be alert to any contraindications and incompatibilities among prescription, over-the-counter drugs, and herbal supplements. The negligent administration of medications is often a result of errors, such as the wrong medication, the wrong patient, the wrong dosage, and the wrong route.
Wrong Dosage
Expert testimony in Leal v. Simon, 48 a medical malpractice action, supported the jury’s determination that the physician had been negligent when he reduced the dosage of a resident’s psychotropic medication, Haldol. The resident, a 36-year-old individual who had been institutionalized his entire life, was a resident in an intermediate-care facility. The drug was used for controlling the resident’s self-abusive behavior. Expert medical testimony showed that the physician failed to familiarize himself with the resident’s history, failed to secure the resident’s complete medical records, and failed to wean the resident slowly off the medication.
Abuse in Prescribing Medications
The board of regents in Moyo v. Ambach 49 determined that a physician prescribed methaqualone fraudulently and with gross negligence to 20 patients. The board of regents found that the physician did not prescribe methaqualone in good faith or for sound medical reasons. His abuse in prescribing controlled substances constituted the fraudulent practice of medicine. Expert testimony established that it was common knowledge in the medical community that methaqualone was a widely abused and addictive drug. Methaqualone should not have been used for insomnia without first trying other means of treatment. On appeal, the court found that there was sufficient evidence to support the board’s finding.
Wrongful Supply of Medications
Damages were awarded in Argus v. Scheppegrell 50 for the wrongful death of a teenage patient with a preexisting drug addiction. It was determined that the physician wrongfully supplied the patient with prescriptions for controlled substances in excessive amounts, with the result that the patient’s preexisting drug addiction worsened, causing her death from a drug overdose. The Louisiana Court of Appeal held that the suffering of the patient caused by drug addiction and deterioration of her mental and physical condition warranted an award of $175,000. Damages of $120,000 were to be awarded for the wrongful death claims of the parents, who not only suffered during their daughter’s drug addiction caused by the physician in wrongfully supplying the prescription, but who also were forced to endure the torment of their daughter’s slow death in the hospital.
Surgery
Operating rooms, hidden behind closed doors, are often the scenes of negligent acts. A Wyoming man was awarded $1.175 million after doctors removed the wrong cervical disc during spinal surgery. 51 The potential for negligence in the surgical setting seems to be the never-ending story, as illustrated in the cases described in this section. Wrong surgery, wrong site, wrong patient, foreign objects left in patients, and hidden mistakes all continue to be common occurrences.
As noted in the following news clipping, surgical instruments inadvertently left in patients are reported by hospitals accredited by The Joint Commission. The various states also require the reporting of surgical errors, such as wrong patient, wrong surgery, and wrong site.
Wrong-site surgical mistakes have multiple causes, including draping the wrong surgical site, marking the wrong surgical site, and failure to mark the surgical site as required by hospital policy. A process for reducing the possibility of wrong-site surgery includes the following:
| Joint Commission Alert: Preventing Retained Surgical Items |
The Joint Commission today issued a Sentinel Event Alert urging hospitals and ambulatory surgery centers to take a new look at how to avoid mistakenly leaving items such as sponges, towels, and instruments in a patient’s body after surgery.
Known in medical terminology as the unintended retention of foreign objects (URFOs) or retained surgical items (RSIs), this is a serious patient safety issue that can cause death or harm patients physically and emotionally. The Joint Commission has received more than 770 voluntary reports of URFOs in the past seven years.
—Elizabeth Eaken Zhani, The Joint Commission, October 17, 2013 52
• Clearly mark the correct surgical site. If the actual site cannot be marked, a mark should be placed in close proximity to the surgical site.
• Both the operating surgeon and patient must participate in and confirm the marking of the preoperative marking process. This may not always be possible when emergency surgery is required (e.g., the patient may be in a comatose state from an accident).
• The patient’s medical record must be available to help determine the correct site prior to the start of surgery.
• The patient’s imaging studies relating to the surgical procedure to be performed must be available for review prior to surgery. This will help to determine that the correct surgical site has been identified.
• Anesthesia is not administered until the operating surgeon is in the operating suite.
• The surgical team (all disciplines) conducts a “time-out” prior to the start of surgery to verify that the correct patient is on the surgical table, the correct surgical site has been marked, and the correct procedure has been identified.
The Phantom Surgeon
Here, the list of surgical mistakes begins with the phantom surgeon. Watkins was referred to Dr. Eliachar, an attending surgeon, who diagnosed a deviated septum and advised that a surgical procedure be performed. When asked by the patient whether he would be performing the procedure, Eliachar testified that he would operate with the assistance of residents. On the morning of Watkins’s surgery, Eliachar was scheduled to perform four elective surgeries in two adjoining operating rooms. The anesthesiologist was Dr. Popovich, who was also involved in more than one surgery at the time and, like Eliachar, moved between operating rooms during the patients’ procedures. The nurse anesthetist, who assisted Popovich in Popovich’s absence, was Woods. Dr. Popovich did not inform the patient that a nurse anesthetist would perform the intubation/extubation and that he would not be present throughout the operation. The chief resident of the ear, nose, and throat department, Dr. Guay, performed the surgery on Watkins. Eliachar, who was listed in the operative records and discharge summary as the performing surgeon, allegedly supervised Guay’s work as he moved between the adjoining operating rooms.
Guay testified that he first met the patient on the day of the surgery in the preoperative holding area minutes before the patient was transported to the operating room. He also testified that Eliachar assigned the surgery to him and that Eliachar did not scrub up that morning. Guay, upon meeting the patient, told the patient that he would be operating on her with Eliachar. During the operation, which began at 7:30 AM and ended at 11:10 AM, the patient was under a general anesthesia and was intubated by the nurse anesthetist. According to Eliachar, it was the surgeon’s ultimate responsibility to ensure that the patient maintained an adequate airway during and after the operation, yet Eliachar could not recall whether he was present when the patient was extubated. He believed that the nurse anesthetist extubated the patient. Popovich was not present for the extubation and did not evaluate the patient between the operating room and the postanesthesia care unit (PACU). The nurse anesthetist stated that the patient was extubated at approximately 10:30 AM in the operating room and that he and Guay then transported the patient to PACU. On the way to the PACU at 10:35 AM, the patient’s heart rate was 85 beats per minute according to the records of nurse Woods, yet the nurse’s notes from PACU indicate that at 10:35 AM, when the patient was admitted to the PACU, her heart rate was 50 beats per minute. The nurse anesthetist’s records also indicate that the patient was awake and responsive when he transported her to the PACU, yet the PACU records indicate that the patient was unresponsive, emitting a large amount of clear urine, and not moving. At 10:40 AM, the nurse anesthetist’s records indicate that the patient’s heart rate was 78 to 80 beats per minute, while the PACU nurse’s record states 30 beats per minute, a rate that is admittedly life-threatening according to the nurse anesthetist. When the heart rate hit 30 beats per minute, the nurse anesthetist recalls, resuscitative measures were begun on the patient. The patient was given cardiopulmonary resuscitation and was reintubated at 10:50 AM. The patient was left in a persistent vegetative state.
The jury found for the plaintiffs on the fraud and battery. The evidence presented demonstrated Eliachar represented to Watkins that he would be operating on her. Watkins specifically asked Eliachar whether he would be performing the surgery. When making the representation to the patient, Eliachar knew that he was scheduled to perform simultaneous surgeries on that date; as the performing surgeon of record, he had the responsibility to monitor the patient throughout the entire operation, including the postoperative procedures on his patient. He admittedly knew the extubation parameters and would have prevented Watkins’s premature extubation had he been the surgeon in the operating room at the time. Based on this evidence, the elements of fraud were demonstrated. The appeals court held that the trial court did not err in denying the motion for directed verdict on that issue. 53
Wrong Surgical Procedure
In Southwestern Kentucky Baptist Hospital v. Bruce, 54 a patient admitted for conization of the cervix was taken mistakenly to the operating room for a thyroidectomy. The physician was notified early during surgery that he had the wrong patient on the operating room table. The operation was terminated immediately. The thyroidectomy was not completed, and the incision was sutured. The patient filed an action for malpractice and recovered $10,000 from the physician and $90,000 from the hospital. That the patient mistakenly answered to the name of another patient who had been scheduled for a thyroidectomy did not excuse the failure of the surgeon, the anesthesiologist, and the surgical technician to determine the identity of the patient by examining her identification bracelet. The Kentucky Supreme Court held that the verdict was not excessive in view of the injuries, which consisted of a 4-inch incision along the patient’s neck, which became infected and required cosmetic surgery.
Correct Surgery: Wrong Site
The patient, in Holdsworth v. Galler, 55 had a 2-cm cancerous tumor on the left side of his colon. Unfortunately, the surgeon erroneously performed right-sided colon surgery to remove the tumor. After the surgeon recognized the error, he performed the required left-sided abdominal surgery 3 days later. At the first surgery on the patient’s right side, the surgeon removed the end of the patient’s small intestine, his entire right colon, and the majority of his transverse colon; consequently, 40% to 45% of the colon was removed. Three days following the wrong-site surgery, the patient had to undergo left-sided surgery, after which he was left with approximately 20% of his colon. The patient developed complications and died 6 weeks thereafter.
Wrong Site Surgery: Fraud
The physician-petitioner in In re Muncan 56 did not review either the patient’s CT scan or magnetic resonance imaging films prior to surgery. In addition, he did not have the films with him in the operating room on the day of surgery. Had he done so, he would have discovered that the CT scan report erroneously indicated that there was a mass in the patient’s left kidney when, in fact, such mass was located in the patient’s right kidney. During surgery, the physician did not observe any gross abnormalities or deformities in the left kidney and was unable to palpate any masses. Nonetheless, he removed the left kidney. The physician was later advised that he had removed a healthy kidney and that he may have removed the wrong kidney. The physician discharged the patient with a postoperative diagnosis of left renal mass, failing to note that he had in fact removed a tumor-free kidney. In September 1999, when another CT scan revealed the presence of a 6- by 7-cm mass in the patient’s right kidney, the physician deemed this to be a new tumor that was not present on the CT scan conducted 4 months earlier. The diagnosis, however, appeared highly suspect given the medical testimony that this new tumor was in the same location and had the same consistency and appearance as the tumor appearing in the prior CT study. The record also makes clear that it was highly unlikely that a tumor of this dimension could have achieved such size during the relatively brief period between the two CT studies.
A hearing committee of the State Board for Professional Medical Conduct sustained allegations that the physician practiced with gross negligence and negligence on more than one occasion. The committee suspended the physician’s license to practice medicine for 48 months, stayed said suspension for 42 months, and placed the physician on probation. Upon appeal to the Administrative Review Board for Professional Medical Conduct (ARB), the ARB affirmed the committee’s findings as to guilt and penalty and, further, sustained the specification alleging fraudulent practice. The physician commenced an action to annul that portion of the ARB’s determination pertaining to the charge of fraudulent practice. The Supreme Court of New York, Appellate Division, Third Department held that the evidence was sufficient to support an inference of fraud. The physician knew he removed the wrong kidney and instead of taking steps to rectify the situation, intentionally concealed his mistake.
Foreign Objects Left in Patients
Physicians who change an organization’s procedures governing surgical operations can be liable for those acts should they result in patient injury, even if they are performed by an organization’s employees. In Martin v. Perth Amboy General Hospital, 57 a patient sued the hospital, cardiovascular surgeon, and nurses for leaving a laparotomy pad in his stomach. The surgeon, Dr. Lev, who performed the operation, was assisted by two other physicians as well as by a scrub nurse and a circulating nurse. Before the laparotomy pads were brought into the operating room, a strip of radiopaque material was embedded between the folds of the laparotomy pads that would show on an X-ray if a pad was left in the abdomen. Rings were attached to the laparotomy pads to prevent errors in counts made by the nurses; however, before the pads were used, the nurses, at the direction of the operating surgeon, removed the rings. The sponge count at the end of the operation indicated that no sponges were missing. Lev contended that the charge against him adopted the captain of the ship doctrine, which is not recognized by the state of New Jersey. If Lev had not ordered the rings to be removed by the nurses, the court would have agreed that the charge was contrary to state judicial decisions. By exercising control over the nurses to the extent of directing them to remove the rings and thus eliminating the safeguards provided by the hospital to ensure a proper count by its employees, the surgeon became the nurses’ temporary or special employer with regard to their duties involving the laparotomy pads used during the operation. Thus, the surgeon was equally liable with the hospital for the nurses’ subsequent negligence in counting the pads.
The most common methods of preventing operating room objects from being left in a surgical wound are:
1. Sponge and instrument counts
2. Use of surgical sponges with radiopaque threads
3. Use of X-rays for detecting foreign objects left in an operative wound
| NEEDLE FRAGMENT LEFT IN PATIENT |
Citation: Williams v. Kilgore, 618 So. 2d 51 (Miss. 1992)
Facts
On March 31, 1964, the patient-plaintiff was admitted to the medical center for treatment of metastatic malignant melanoma on her left groin. On April 6, 1964, an unknown resident performed a bone marrow biopsy. The needle broke during the procedure and a fragment lodged in the patient. The patient was told that the needle would be removed the following day, when surgery was to be performed to remove a melanoma from her groin. The operating surgeons, Dr. Peede and Dr. Kilgore, were informed of the presence of the needle fragment prior to surgery. A notation by Peede stated that the needle fragment had been removed.
The needle fragment, however, had not been removed. The patient remained asymptomatic until she was hospitalized for back pain in September 1985. During her hospitalization, the patient learned that the needle fragment was still in her lower back. The needle fragment was finally removed in October 1985. The physician’s discharge report suggested that there was a probable linkage between the needle fragment and recurrent strep infections that the patient had been experiencing. Although the patient’s treating physicians had known as early as 1972 that the needle fragment had not been removed, there was no evidence that the patient was aware of this fact.
The defendant physicians argued that the statute of limitations had tolled under Mississippi Code, thus barring the case from proceeding to trial. The circuit court entered a judgment for the physicians, and the plaintiff appealed.
Issue
Was the plaintiff’s malpractice action time barred?
Holding
The Mississippi Supreme Court held that the plaintiff’s action was not time barred and was, therefore, remanded for trial.
Reason
A patient’s cause for action begins to accrue and the statute of limitations begins to run when the patient can reasonably be held to have knowledge of the disease or injury. In this instance, the patient began to experience infections and back pain in 1985. Moreover, this is the date she discovered that the needle was causing her problems, never having been informed previously that the needle from the 1964 biopsy procedure remained lodged within her.
Discussion
1. Describe under what circumstances the plaintiff’s action would have been time barred by the statute of limitations.
2. Discuss the legal and ethical issues involved in this case (e.g., documentation in the medical record indicating that the needle fragment had been removed).
Procedure Improper
In Ozment v. Wilkerson, 58 Mrs. Wilkerson was suffering from Crohn’s disease, a chronic ailment that affects the colon and small intestine. Part of the treatment for the disease is to allow the patient’s gastrointestinal (GI) system to rest, and this means that the patient cannot eat. The patient is given a concentrated caloric solution intravenously. To deliver the needed nutritional solution, Dr. Ozment needed to place a central venous catheter into Wilkerson’s body. Wilkerson’s pericardial sac was punctured during the procedure. As a result, a condition known as cardiac tamponade (accumulation of fluids in the pericardial sac) occurred. Wilkerson required emergency surgery to correct this condition and to repair the puncture. The defendants, following a jury verdict favorable to the plaintiffs, filed an appeal.
The Alabama Supreme Court held that expert testimony supported the jury’s finding that the catheter was inserted incorrectly. The plaintiff’s expert, Dr. Moore, testified that the tip of the catheter should have been placed in the superior vena cava and should not have extended into the heart. Moore also stated that placing the tip of the catheter in the atrium, or against the wall of the atrium, was a deviation from the standard of care ordinarily exercised by a physician in the same line of practice under similar circumstances. Moore stated that the intravenous central line perforated the right atrium and caused the cardiac tamponade. Moore’s testimony provided sufficient evidence from which the jury could determine that Ozment inserted the catheter incorrectly and had thereby breached his duty of care to Wilkerson.
Inadequate Airway
In Ward v. Epting, 59 the anesthesiologist failed to establish and maintain an adequate airway and resuscitate properly a 22-year-old postsurgical patient, which resulted in the patient’s death from lack of oxygen. Expert testimony based on autopsy and blood gas tests showed that the endotracheal tube had been removed too soon after surgery and that the anesthesiologist, in an attempt to revive the patient, reinserted the tube into the esophagus. The record on appeal was found to have contained ample evidence that the anesthesiologist failed to conform to the standard of care and that such deviation was the proximate cause of the patient’s death.
Improper Positioning of Arm
The plaintiff in Wick v. Henderson 60 experienced pain in her left arm upon awakening from surgery; an anesthesiologist told her that her arm was stressed during surgery. According to the plaintiff, she sustained an injury to the ulnar nerve in her left upper arm. A malpractice action was filed against the hospital and the anesthesiologist. The plaintiff sought recovery on theory of res ipsa loquitur. There was testimony that the main cause of the injury was the mechanical compression of the nerve by improper positioning of the arm during surgery. The trial court granted the defendants a directed verdict, resulting in dismissal of the case.
On appeal, the Iowa Supreme Court held that the res ipsa loquitur doctrine applied. The plaintiff must prove two foundational facts in order to invoke the doctrine of res ipsa loquitur. She must prove, first, that the defendants had exclusive control and management of the instrument that caused her injury, and, second, that it was the type of injury that ordinarily would not occur if reasonable care had been used. As to control, the plaintiff can show an injury resulting from an external force applied while she lay unconscious in the hospital. It is within common knowledge and experience of a layperson that an individual does not enter the hospital for gallbladder surgery and leave with ulnar nerve injury.
Sciatic Nerve Injury
The plaintiff in Lacombe v. Dr. Walter Olin Moss Regional Hospital 61 was admitted to the hospital for a bladder suspension operation. Upon regaining consciousness in the recovery room, the plaintiff began complaining of severe pain in her right buttock, shooting down the back of her right leg. The plaintiff was eventually diagnosed with sciatic nerve injury. It is undisputed that the injury is permanent. A medical malpractice claim was filed against the hospital and the physicians involved in the surgery. A medical review panel rendered a decision finding no breach of the standard of care. The plaintiff then filed a malpractice suit against the hospital and physicians. By the time of trial, all of the defendants, except the hospital, had been dismissed from the litigation. After trial, the trial judge rendered judgment in favor of the plaintiff. The trial judge found that, applying the doctrine of res ipsa loquitur to the evidence, the plaintiff had proven her case. Accordingly, he found the hospital responsible under the theory of respondeat superior for the negligent conduct of its agents (the personnel who prepared the plaintiff for surgery and the physicians who conducted the operation).
The hospital contended that the trial court incorrectly applied the doctrine of res ipsa loquitur. The facts established by the plaintiff must also reasonably permit the jury to discount other possible causes and to conclude it was more likely than not that the defendant’s negligence caused the injury.
The Louisiana Court of Appeal agreed with the trial court that the evidence warranted an inference of negligence on the part of the defendant caused the injury and that an inference of res ipsa loquitur could be applied. Expert testimony established that the plaintiff was suffering from a sciatic nerve injury and that the injury was permanent. Experts on both sides agreed that sciatic nerve injury was not a known risk of this surgery. The testimony indicated that the plaintiff went into the hospital without the injury and came out with it.
10.9 DISCHARGE AND FOLLOW-UP CARE
The premature discharge of a patient is risky business. The intent of discharging patients more expeditiously is often a result of a need to reduce costs. As pointed out by Dr. Nelson, an obstetrician and board member of the American Medical Association, such decisions “should be based on medical factors and ought not be relegated to bean counters.” 62
As noted in Doan v. Griffith, 63 discharge instructions must be clear and complete. In this case, an accident victim was admitted to the hospital with serious injuries, including multiple fractures of his facial bones. The patient contended that the physician was negligent in not advising him at the time of discharge that his facial bones needed to be realigned by a specialist before the bones became fused. As a result, his face became disfigured. Expert testimony demonstrated that the customary medical treatment for the patient’s injuries would have been to realign his fractured bones surgically as soon as the swelling subsided and that such treatment would have restored the normal contour of his face. The appellate court held that the jury reasonably could have found that the physician failed to provide timely advice to the patient regarding his need for further medical treatment and that such failure was the proximate cause of the patient’s condition.
Failure to Provide Follow-Up Care
Failure to provide follow-up care can result in a lawsuit if such failure results in injury to a patient. In Truan v. Smith, 64 the Tennessee Supreme Court entered judgment in favor of the plaintiffs, who had brought action against a treating physician for damages alleged to have been the result of malpractice by the physician in the examination, diagnosis, and treatment of breast cancer. In January or February of 1974, the patient noticed a change in the size and firmness of her left breast, which she attributed to an implant. She later noticed discoloration and pain on pressure. While being examined by the defendant on March 25, 1974, for another ailment, the patient brought her symptoms to the physician’s attention but received no significant response, and the physician made no examination of the breast at that time. The patient brought her symptoms to the attention of her physician for the second time on May 6, 1974. She had been advised by the defendant to observe her left breast for 30 days for a change in symptoms, which at the time of the examination included discomfort, discoloration, numbness, and sharp pain. She was given an appointment for 1 month later. The patient, on the morning of her appointment, June 3, 1974, called the physician’s office and informed the nurse that her symptoms had not changed and that she would like to know if she should keep her appointment. The nurse indicated that she would pass on her message to the physician. The patient assumed she would be called back if it was necessary to see the physician.
By late June, the symptoms became more acute, and the patient made an appointment to see the defendant physician on July 8, 1974. The patient also was scheduled to see a specialist on July 10, 1974, at which time she was admitted to the hospital and was diagnosed as having a malignant mass. A radical mastectomy was performed. Expert witnesses expressed the opinion that the mass had been palpable 7 months before the removal. When the defendant undertook to give the plaintiff a complete physical examination and embarked on a wait-and-see program as an aid in diagnosis, the physician should have followed up with his patient, who died before the conclusion of the trial.
The state supreme court held that the evidence was sufficient to support a finding that the defendant was guilty of malpractice in failing to inform his patient that cancer was a possible cause of her complaints and in failing to make any effort to see his patient at the expiration of the observation period instituted by him.
Failure to Follow-up on Test Results
The patient in Downey v. University Internists of St. Louis, Inc. 65 entered the hospital in December of 1996 for heart bypass surgery. Two chest X-rays were taken during this hospitalization. The X-rays were interpreted as showing a lesion in the patient’s left lung and that a neoplasm could not be completely ruled out. If clinically warranted, CT scanning could be performed. No further tests or evaluations were ordered in response to these reports. A jury found that the now-deceased patient had a material chance of surviving his cancer and that his chance of survival was lost as a result of the physician’s negligence. The jury, however, did not award damages to compensate for the harm suffered. The Missouri Court of Appeals found that the verdict of no-damage award was inconsistent with the evidence and remanded the case for a new trial.
Abandonment
Lack of patient care follow-up can sometimes be the result of the physician abandoning his patient for a variety of reasons. It can be the result of a personality conflict or pure negligence in following up on the patient’s care needs. The relationship between a physician and a patient, once established, continues until it is ended by the mutual consent of the parties, the patient’s dismissal of the physician, the physician’s withdrawal from the case, or agreement that the physician’s services are no longer required. A physician who decides to withdraw his or her services must provide the patient with reasonable notice so that the services of another physician can be obtained. Premature termination of treatment is often the subject of a legal action for abandonment—the unilateral termination of a physician–patient relationship by the physician without notice to the patient. The following elements should be established in order for a patient to recover damages for abandonment:
• Medical care was unreasonably discontinued.
• The discontinuance of medical care was against the patient’s will. Termination of the physician–patient relationship must have been brought about by a unilateral act of the physician. There can be no issue of abandonment if the relationship is terminated by mutual consent or by dismissal of the physician by the patient.
• The physician failed to arrange for care by another physician.
• Foresight indicated that discontinuance might result in physical harm to the patient.
• Actual harm was suffered by the patient.
10.10 INFECTIONS
The Centers for Disease Control and Prevention estimates that nearly 2 million patients are stricken annually with hospital-acquired infections. There are estimates that as many as 90,000 of these patients die annually as a result of these infections. 66 The mere fact that a patient contracted an infection after an operation will not, in and of itself, cause a surgeon to be liable for negligence. The reason for this, according to the Nebraska Supreme Court in McCall v. St. Joseph Hospital, 67 is as follows:
Neither authority nor reason will sustain any proposition that negligence can reasonably be inferred from the fact that an infection originated at the site of a surgical wound. To permit a jury to infer negligence would be to expose every doctor and dentist to the charge of negligence every time an infection originated at the site of a wound. We note the complete absence of any expert testimony or any offer of proof in this record to the effect that a staphylococcus infection would automatically lead to an inference of negligence by the people in control of the operation or the treatment of the patient. 68
Several cases that have lead to infection-related lawsuits are reviewed below.
Failure to Effectively Manage Infection
Making a case for using clinical guidelines is demonstrated in McKowan v. Bentley, 69 in which the patient, Mrs. Bentley, sought advice about gastric bypass surgery from Dr. McKowan in January 1993. On March 8, 1993, McKowan, assisted by Dr. Day, performed gastric bypass surgery on Bentley to alleviate her morbid obesity. Bentley was discharged from the hospital 2 days later with no indication of complications. On March 14, Bentley returned to see McKowan with redness and swelling around her incision. McKowan removed the sutures and found that Bentley had a wound infection. There was no indication that she had an intra-abdominal infection at that time.
On March 15, the drainage from her wound changed in character, and she was admitted to the hospital. McKowan operated on Bentley and drained the abscesses. Bentley had exploratory surgery on March 17 so that the doctors could see the extent to which the surgery had successfully reduced her infection. McKowan operated again and found no disruption of the wound site.
On March 18, another follow-up surgery was performed. Following that surgery, Bentley was placed on a ventilator and began receiving total parenteral nutrition intravenously.
On March 22, surgery was again performed on Bentley. This time, McKowan cut the front part of the stomach and placed a gastrostomy tube in the lower stomach. On March 26, purulent drainage was discovered around the gastrostomy tube. The gastrostomy site was repaired. Bentley showed some improvement on March 27.
At that point, McKowan went on vacation and Dr. Day took over Bentley’s care. On March 28, Day performed surgery to remove purulent material in the abdomen. On May 30, Bentley’s sister transferred her to University of Alabama Hospital in Birmingham, where she died.
Mr. Bentley filed a malpractice case. At trial, the plaintiff presented expert testimony from Dr. Kirchner, who testified that Bentley died because McKowan and Day did not properly manage her postoperative infection. Kirchner testified that the conduct of both physicians in managing the massive intra-abdominal infection fell below the legally imposed standard of care in Alabama. Testimony of the plaintiff’s expert was emphatic, stating that the defendants disregarded obvious signs of grave complications; omitted obvious, simple, effective measures for stopping the infection that eventually killed the patient; and repeatedly applied inappropriate measures virtually certain to exacerbate the infection.
The jury awarded Mr. Bentley $2 million in punitive damages. The defendants contended that the award was excessive. The defendants’ motion for a new trial was denied.
Poor Infection Control Technique
A jury verdict in the amount of $300,000 was awarded in Langley v. Michael 70 for damages arising from the amputation of the plaintiff’s thumb. Evidence that the orthopedic surgeon failed to deeply cleanse, irrigate, and debride the injured area of the patient’s thumb constituted proof of a departure from that degree of skill and learning ordinarily used by members of the medical profession and that this failure directly contributed to the patient’s loss of the distal portion of his thumb.
Preventing the Spread of Infection
A district court of appeals held in Gill v. Hartford Accident & Indemnity Co. 71 that the physician who performed surgery on a patient in the same room as the plaintiff should have known that the patient’s infection was highly contagious. The failure of the physician to undertake steps to prevent the spread of the infection to the plaintiff and his failure to warn the plaintiff led the court to find that hospital authorities and the plaintiff’s physician caused an unreasonable increase in the risk of injury. As a result, the plaintiff suffered injuries causally related to the negligence of the defendant.
10.11 PSYCHIATRY
The major risk areas of behavioral health professionals include commitment, electroshock, duty to warn, and suicide. Matters relating to admission, consent, and discharge are governed by statute in most states.
Commitment
The recent emphasis on patient rights has had a major impact on the necessity to perform an appropriate assessment prior to commitment. The various state statutes often provide requirements granting an individual’s rights to legal counsel and other procedural safeguards (e.g., patient hotline) governing the admission, retention, and discharge of psychiatric patients.
Most states have enacted administrative procedures that must be followed. The various statutes often require that two physicians certify the need for commitment. Physicians who participate in the commitment of a patient should do so only after first examining the patient and reaching their own conclusions. Reliance on another’s examination and recommendation for commitment could give rise to a claim of malpractice. Commitment is generally necessary in those situations in which a person may be in substantial danger of injuring himself or herself or third persons.
Involuntary Commitment
In In re Detention of Meistrell, 72 proof of dangerousness was found adequate to support an order for involuntary commitment. There was testimony that on two occasions, the patient jumped off a teeter-totter, causing his two small children to fall to the ground. A substantial risk of physical harm to others also was demonstrated by testimony that the patient threatened his wife’s ex-husband.
Involuntary Commitment Ordered
There was clear and convincing evidence in Luis A. v. Pilgrim Psychiatric Center 73 that the patient remained extremely psychotic and delusional. This was manifested by his own testimony denying that the victim of the crime in which he participated in 1990 was dead. Further, he denied his attempted suicide on two prior occasions, his substance abuse problems, and his mental illness. The evidence showed that the patient believed that the reason he was reincarcerated upon violating his probation in 2000 was a conspiracy by certain individuals against him rather than the fact that he tested positive for marijuana and violated his curfew. The evidence demonstrated that the patient would likely relapse to his substance abuse. He posed a substantial threat of physical harm to himself and others if release from the care and control of the facility was permitted. Proof was demonstrated that if released, he intended to reside with his elderly mother, who had a significant history of mental illness herself and was incapable of properly caring for him out of an institutional setting or of preventing deterioration in his mental health status. Expert medical opinion indicated that such would inevitably occur. The application to retain the respondent on an involuntary basis was granted.
Continuation of Commitment
In In re Todd, 74 a psychiatrist filed a petition for additional detention of a patient previously ordered admitted to a state hospital for pretrial psychiatric examination. The circuit court, after hearing testimony from the appellant’s son, a social worker at the hospital, and the psychiatrist, ordered detention, and the detainee appealed. The episode that gave rise to the involuntary commitment occurred when the appellant threw eggs at a house and various businesses and also broke some windows at a house with a tire iron. She lightly bumped a police car and was charged with second-degree property damage. During her involuntary detention, she refused to take her medications, which were necessary because of her illness. The psychiatrist indicated his concern that, on release, she might harm her invalid husband. Detention was considered necessary until such time as drugs could control the detainee’s illness. The court of appeals held that the testimony of the psychiatrist established clear and convincing evidence to meet a required standard that the detainee’s actions presented risk of serious harm to herself or others.
Involuntary Commitment of Invalid
In In re Carl, 75 a New York Supreme Court found a patient to be mentally ill and authorized his involuntary retention. On appeal, however, the New York Supreme Court, Appellate Division, held that the state had not shown by clear and convincing evidence that the patient’s instability caused him to pose a substantial threat of physical injury to himself or others. The examining physician’s testimony indicated that the patient did not pose a direct threat of physical harm to himself or others but that it was questionable whether he would be able to provide for the essentials of life. The patient testified that he was aware of food needs, of where to get food, and how he would pay for it. He indicated that he would not sleep outside and that he had a bed in a rooming house where he had been paying rent for 2 years.
Commitment by a Spouse
The plaintiff’s husband in Bencomo v. Morgan 76 filed a petition to have his wife declared incompetent. In a letter supporting the petition, the defendant physician, who had treated the wife 10 years previously, stated that she was badly in need of a psychiatric examination. The plaintiff wife attempted to sue the physician for libel and slander. The court held that the plaintiff had no cause for action because it was her husband who initiated the commitment procedures.
Commitment by a Parent
The U.S. Supreme Court in Parham v. J.R. 77 held that the risk of error inherent in a parental decision to have a child institutionalized for mental health care is sufficiently great that an inquiry should be made by a neutral fact finder to determine whether statutory requirements for admission are satisfied. Although a formal or quasiformal hearing is not required and an inquiry does not need to be conducted by a legally trained judicial or administrative officer, such inquiry must probe a child’s background using all available sources. It is necessary that a decision maker have the authority to refuse to admit a child who does not satisfy medical standards for admission. A child’s continuing need for commitment also must be reviewed periodically by a similarly independent procedure.
Patient Due-Process Rights
The principles of due process were violated in Birl v. Wallis 78 when an involuntarily committed patient was conditionally released and once again confined without notice and opportunity for a hearing. Remand was required to permit the drafting of reconfinement procedures that would protect the patient’s due-process rights.
Release Denied
In State v. Wenk, 79 Wenk was charged with one count of attempt to entice a child for immoral purposes in October 1977. He entered a plea of not guilty. While awaiting trial and out on bail, Wenk was charged with three additional felonies involving an 11-year-old boy—one count of abduction and two counts of first-degree sexual assault. Ultimately, Wenk withdrew his pleas of not guilty but maintained a plea of not guilty by reason of a mental disorder. The trial court agreed with Wenk and found him not guilty as a result of his mental disorder. The trial court also found him dangerous and that he needed to be committed. Wenk successfully petitioned for conditional release in 1979. Five years later, Wenk waived his right to contest the motion seeking revocation of his conditional release after his probation agent instituted proceedings against him when it was discovered that Wenk failed to remain drug free and to abstain from contacting his ex-wife.
Wenk, at the age of 76, again petitioned the trial court seeking conditional release. As a result of his request, the trial court appointed two experts to examine Wenk: Palermo, a psychiatrist, and Smail, a psychologist. At the hearing, the state called Smail, who testified that Wenk could be released if certain conditions were placed on him. Also admitted into evidence were Palermo’s report and the report of Chapman, a clinical psychologist employed by the state institution. Both of these reports recommended that Wenk be released, but only if certain conditions were placed upon him. Following the close of testimony, the assistant district attorney stated that he was unsure whether he had met his burden of proof, but he urged the court to place conditions on Wenk if the trial court decided to release him.
The trial court, disagreeing with the doctors’ ultimate recommendations, found that Wenk was still dangerous. He had a long-standing substance abuse problem, and although Wenk had not abused drugs while he was confined, the trial court believed his drug relapse that occurred during his earlier conditional release indicated he still posed a danger to the community if released. As a result, the trial court, in denying the petition, found that the state had met its burden of proof to a reasonable certainty by evidence that is clear and convincing that Wenk still remained dangerous.
Wenk argued that all the expert witnesses who examined him opined that he could be released under certain conditions. The court remained not persuaded by his arguments. None of the doctors believed Wenk should be unconditionally released. Each recommended his release only under certain conditions. In Chapman’s report, the doctor noted that Wenk had been previously diagnosed as suffering from bipolar disorder, as well as inhalant dependence. Chapman reasoned that Wenk could be conditionally released because Wenk’s mental illness appeared to be in remission. With regard to Wenk’s addiction to toluene, a paint thinner, Chapman acknowledged that Wenk used this drug when he engaged in his sexual criminal conduct, but Chapman’s report contained the mistaken entry that during the 4 years Wenk was on conditional release, Wenk reported that he had no temptation to inhale. Wenk’s records clearly show that Wenk was recommitted, in part, as a result of his probation agent’s discovery of his drug addiction. Consequently, the doctor’s opinion that Wenk could be conditionally released was premised on his mistaken belief that Wenk had no difficulty with drugs during his previous release. Either Wenk minimized his toluene abuse when discussing his history with Chapman or Chapman failed to investigate the record.
Smail testified that Wenk’s inhalant dependence was in remission. He did, however, admit that all of Wenk’s criminal acts took place while he was under the influence of toluene. Smail’s recommendation in favor of conditional release was also based on Wenk’s statement to him that he had no personal concerns about resuming his abuse of inhalants. This self-serving opinion was not only overly optimistic but also, given Wenk’s past conduct, not borne out by his history.
Palermo’s report acknowledged that Wenk was abusing drugs when recommitted, but notwithstanding this history, Palermo recommended that Wenk be conditionally released, although he failed to set forth in his report any conditions that needed to be imposed on Wenk when he was released. This gaping hole in Palermo’s report could easily have caused the trial court to lack confidence in the doctor’s opinion.
The Wisconsin Court of Appeals determined that the record supported the trial court’s decision. The differences of opinion between the doctors and the trial court lay with their prediction of Wenk’s likely behavior when released. While the trial court acknowledged that predicting a person’s future behavior is a difficult task, it pointed out that the past predictions of the psychiatric experts were wrong. Further, the trial court stated that its prediction for Wenk’s future behavior was based on his past conduct, conduct that strongly suggested it was quite likely that Wenk would again abuse drugs, posing too great a danger to the community to release him.
Untimely Discharge
A trial court decided that an insanity acquittee suffering from schizophrenia, paranoid type, in remission, failed to meet his burden of proving that he should be discharged, even though a psychiatric review board had recommended discharge. Two psychiatrists testified that as long as the patient was taking his medication, he was in no danger to himself or to others. The appeals court decision, based on the entire record, found that the acquittee had not proven by a preponderance of the evidence that there was a mechanism in place to provide for continuation of the required medication if he was released from supervision. The court considered the violent nature of the underlying crimes (e.g., attempt to commit sexual assault in the first degree and kidnapping in the first degree), which was precipitated by the acquittee’s mental illness. It was unclear whether the patient would continue to show the same progress after being discharged from the board’s supervision. 80
Electroshock Therapy
Most states have laws and regulations governing the use of electroshock therapy and other treatments for psychiatric patients. Failure to abide by these statutory and regulatory guidelines may result in liability to the organization and treating physician.
Duty to Warn
In Tarasoff v. Regents of the University of California, 81 a former patient allegedly killed a third party after revealing his homicidal plans to his therapist. His therapist made no effort to inform the victim of the patient’s intentions. The California Supreme Court held that when a therapist determines or reasonably should determine that a patient poses a serious danger of violence to others, there is a duty to exercise reasonable care to protect the foreseeable victims and to warn them of any impending danger. Discharge of this duty also may include notifying the police or taking whatever steps are reasonably necessary under the circumstances.
Under Nebraska law, the relationship between a psychotherapist and a patient gives rise to an affirmative duty to initiate whatever precautions are reasonably necessary to protect the potential victims of a patient. This duty develops when a therapist knows or should know that a patient’s dangerous propensities present an unreasonable risk of harm to others. 82
Exceptions to Duty to Warn
The Maryland Court of Special Appeals in Shaw v. Glickman 83 held that a plaintiff could not recover against a psychiatric team on the theory that they were negligent in failing to warn the plaintiff of the patient’s unstable and violent condition. The court held that making such a disclosure would violate statutes pertaining to privilege against disclosure of communications relating to treatment of mental or emotional disorders. The court found that a psychiatrist may have a duty to warn the potential victim of a dangerous mental patient’s intent to harm. However, the duty could be imposed only if the psychiatrist knew the identity of the prospective victim.
The psychiatrist in Currie v. United States 84 was found not to have had a duty to seek the involuntary commitment of a patient who evidenced homicidal tendencies. Absent control over the patient, the federal government could not be held liable for a murder that the patient committed at his former place of employment. The psychiatrist had warned the patient’s former employer and law enforcement officials that he could be dangerous.
There was no duty on the part of the hospital or treating psychiatrists in Sharpe v. South Carolina Department of Mental Health 85 to warn the general public of the potential danger that might result from a psychiatric patient’s release from a state hospital. There was no identifiable threat to a decedent who was shot by the patient approximately 2 months after the patient’s release from voluntary commitment under a plan of outpatient care. In addition, there was nothing in the record indicating that the former patient and the decedent had known each other prior to the patient’s release.
Suicidal Patients
Organizations have a duty to exercise reasonable care to protect suicidal patients from foreseeable harm. This duty exists whether the patient is voluntarily admitted or involuntarily committed. The District Court in Abille v. United States 86 held that evidence supported a finding that the attending physician had not authorized a change in status of a suicidal patient to permit him to leave the ward without an escort. The nursing staff allowed him to leave the ward, and he found a window from which he jumped. This constituted a breach of the standard of due care under the law in Alaska, where the act or omission occurred.
The attendant in Fernandez v. State 87 left a patient alone in her room for 5 minutes when the patient appeared to be asleep. During the attendant’s absence, the patient injured herself in a repeated suicide attempt. The court found that even if the hospital assumed a duty to observe the patient continually, such a 5-minute absence would not constitute negligence. Therefore, the hospital could not be held liable for the patient’s injuries.
However, in a case in which a patient with a 14-year history of mental problems escaped from a hospital and committed suicide by jumping off a roof, 88 the record showed that the patient was to be checked every 15 minutes. There was no evidence that such checks had been made. The appellate court ruled that the facts showed a prima facie case of negligence.
The New York Supreme Court, Appellate Division, in Eady v. Alter, 89 held that an intern’s notation on the hospital record that the patient tried to jump out the window was sufficient to establish a prima facie case against the hospital. The patient succeeded in committing suicide by jumping out the window approximately 10 minutes after having been seen by the intern. Testimony had been given that the patient was restrained inadequately after the reported attempted suicide.
Flawed Evaluation
John Doe was at his father’s home seeking help in overcoming a heroin addiction. Doe was acting noticeably withdrawn and began vomiting. The plaintiff-father took his son to a local hospital to be evaluated for drug withdrawal. Doe tested negative for the presence of drugs in his blood and was discharged with instructions to attend a drug rehab program. The following day, the father became aware that his son had attempted suicide. He called the office of a drug rehab program for help and was advised to take Doe to the hospital’s crisis center.
The crisis center referred the father and his son to the hospital’s emergency department. The father explained to the emergency department nurse that his son had attempted suicide by cutting his wrist. Doe’s wrist was bandaged. The father and his son proceeded to the crisis center. Following an interview by a nurse and physician, the physician and nurse advised the father that his son was not suicidal but was “acting out” and looking for attention. Hospitalization was not offered, and the plaintiff was advised to follow up with a drug rehab program. Doe’s medical records contain no information regarding voluntary hospitalization being recommended or offered, nor do the records reflect that the son refused any offer of voluntary hospitalization.
They returned home, and Doe went to bed. When the father checked Doe at about 6:00 AM, he was gone. He telephoned the home of his ex-wife and was relieved to learn that his son was there. The father agreed to pick him up before the mother left for work. A few minutes later, the mother called and told the father that their son had left the house. The father immediately went to look for his son. While searching for his son, he noticed flashing lights on a nearby highway. When he went to see what was happening, he saw paramedics administering cardiopulmonary resuscitation to his son. The father was told that his son jumped in front of a dump truck and was killed.
A lawsuit was filed against the defendants alleging negligence, malpractice, and infliction of emotional distress. At trial, the physician testified that the deceased declined voluntary admission to the hospital. However, in a deposition prior to trial, he testified that he could not recall whether Doe had declined voluntary admission or not. On cross-examination, the physician conceded that he had never specifically recommended hospitalization to Doe.
The nurse testified that voluntary hospitalization was offered as an option to the plaintiff and his son but was not recommended. That option, if in fact offered, was not recorded in the hospital record.
The plaintiff’s medical experts testified that (1) because of Doe’s two suicide attempts, he needed hospitalization; (2) additional steps should have been taken prior to ruling out major depression; (3) in all probability, Doe would not have killed himself had he been hospitalized earlier and put on medications; and (4) Doe’s prior suicide attempts should have been taken more seriously. They opined that the failure to hospitalize Doe and keep him under close supervision was a deviation from accepted standards of medical practice. The defendants’ expert testified to the contrary but conceded on cross-examination that Doe had at least three high-risk factors for suicide.
The trial largely turned to a contest between the experts. The jury, by its verdict, accepted the opinions of the plaintiff’s experts. The court found, after a review of the record, no reason to disturb the jury’s verdict. The plaintiff, as administrator of the estate of his late son, recovered a verdict of $425,000 against the defendants for their failure to provide appropriate evaluation and hospitalization of Doe. 90
Inadequate Care
The hospital system in Pinnacle Health System v. Dep’t of Public Welfare 91 was found to have been properly denied Medicaid reimbursement for providing inpatient psychiatric patient services that fell below the requisite standard. In this case, patients were not examined daily as required by a psychiatrist. Professionals who work in the healthcare setting recognize that this is not an uncommon occurrence. This case is typical of what has driven up healthcare costs in the United States.
0.12 PHYSICIAN–PATIENT RELATIONSHIP
The following suggestions can help improve the physician–patient relationship and decrease the probability of malpractice suits:
• Personalized treatment. A patient is more inclined to sue an impersonal physician than one with whom he or she has developed a good relationship.
• Conduct a thorough assessment/history and physical examination that includes a review of all body systems.
• Develop a problems list and comprehensive treatment plan that addresses the patient’s problems.
• Provide sufficient time and care to each patient. Take the time to explain treatment plans and follow-up care to the patient, his or her family, and other professionals who are caring for your patient. Provide a copy of each update to the patient.
• Request consultations when indicated and refer if necessary.
• Closely monitor the patient’s progress and, as necessary, make adjustments to the treatment plan as the patient’s condition warrants.
• Maintain timely, legible, complete, and accurate records.
• Do not make erasures.
• Do not guarantee treatment outcome.
• Provide for cross-coverage during days off.
• Do not overextend your practice.
• Avoid prescribing over the telephone.
• Do not become careless because you know the patient.
• Seek the advice of counsel should you suspect the possibility of a malpractice claim.
• Maintain the patient’s privacy rights.
| The Court’s Decision |
The Illinois Appellate Court held that the evidence was sufficient to support a determination that the defendant’s negligence caused the plaintiff’s pain and suffering.
