Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Presenting Complaint Overshadows More Serious Problem
A Florida woman who presented to a walk-in clinic for a respiratory condition had also sustained a puncture wound on her finger from an air-powered paint gun. The defendant physician prescribed an antibiotic but did not order an x-ray.
The patient returned to the clinic two days later with increased pain, swelling, and blackening of the finger. The defendant prescribed two pain medications but did not order an x-ray; nor did he mention follow-up treatment.
Later that day, the woman presented to a hospital emergency department (ED) and subsequently underwent amputation of the distal end of her index finger.
The plaintiff alleged negligence on the physician’s failure to send her to the ED or to provide proper care for her finger injury. The defendants claimed that the plaintiff presented to the clinic for evaluation of a respiratory condition and was prescribed an antibiotic. When the plaintiff had a problem with the first antibiotic, the defendant substituted another. The defendant denied that the plaintiff ever complained of a finger injury.
According to a published account, a verdict of $241,275 was returned. This included $2,000 to be awarded to the plaintiff’s husband for loss of services.
High-pressure injection injuries are often underestimated, legally risky, and potentially devastating to the patient.
As expected, the hands are most likely to be involved, and grease and paint are the substances most commonly injected. The most common injury sites are the index finger or palm of the nondominant hand, which is injected when the user attempts to clean the gun’s nozzle or to steady the gun with a free hand.
These cases can be catastrophic. Outwardly, the injury appears to be an innocuous puncture wound, but the internal injury is severe. Clinicians unfamiliar with high-pressure injection injuries often treat them as a typical puncture wound, as was done in this case. High-pressure injection injuries require immediate surgical consultation and operative management. Even when competent, prompt surgical management takes place, amputation rates are high.
Jurors find the loss of a limb or a digit compelling and recognize the important life-long consequences of such an injury. Jurors expect clinicians to recognize that paint or grease that fills a finger under high pressure represents a threat to the limb, and they will expect the clinician to act swiftly in an effort to save the digit.
Moreover, such cases are easy for the plaintiff’s attorney to try. Unlike electrolyte disturbances or complicated metabolic derangements, high-pressure injection injuries are easy to understand and will keep the average juror’s attention. The plaintiff’s attorney will offer dramatic testimonial evidence of necrosis and inflammation as the paint is shown to move along the tendon sheath. Damaging intraoperative photographic evidence may be produced, and photographs of the resulting wound are almost certain.
High-pressure injection injuries are limb/digit-threatening. Move quickly to offer the patient the best possible result and minimize your malpractice risk. —DML
Mismanaged Infection in Man With Previous Splenectomy
In Ohio, a 27-year-old man presented to the ED with a temperature of 103°F and other signs and symptoms of infection. He had a history of idiopathic thrombocytopenic purpura (ITP), for which he had previously undergone removal of his spleen. At the ED, he was seen by the defendant emergency physician, Dr. A., who made a diagnosis of flu and obtained a culture.
Dr. A. also called Dr. B., the defendant oncologist/hematologist, for a consult. According to Dr. A., he asked Dr. B. whether antibiotics should be prescribed before the patient was released, and Dr. B. told him antibiotics were not necessary. The man was then discharged.
By the next morning, his symptoms had worsened. He presented to a second ED, where he died as a result of an overwhelming infection.
Plaintiff for the decedent claimed that antibiotics should have been prescribed due to his pre-existing ITP and history of splenectomy. Dr. A. claimed that he had appropriately consulted with Dr. B. and had followed the instructions he was given. Dr. B. acknowledged that he had been called and notified that the decedent was in the ED, but he maintained that he had not been asked for advice about whether to prescribe antibiotics.
According to a published account, a $750,000 verdict was returned. Dr. B. was found 70% at fault, and Dr. A. was found 30% at fault.
This case involves failure to recognize and treat overwhelming postsplenectomy infection (OPSI). Given the patient’s young age and the lost possibility for a full recovery, the jury’s verdict is restrained and probably reflects a relatively conservative jury pool.
Asplenic patients are usually aware that they do not have a spleen, but they may not recognize their associated risk for serious infection. The fact of the matter is that asplenic patients are immunocompromised. When an asplenic patient presents with a febrile illness that is consistent with OPSI, this is a true medical emergency. These patients must undergo a vigorous workup and expeditious administration of antibiotics to offer the best chance for survival. Even with appropriate antibiotic treatment and supportive therapies, mortality associated with OPSI ranges between 50% and 80%.
In this case, the emergency physician obtained a hematology/oncology consultation. There is a dispute between the defendant physicians as to whether antibiotics were recommended or even discussed. It is unclear from the record whether or not the emergency physician’s clinical note includes such a discussion. The jury apportioned the majority of the liability to the hematologist but still found the emergency physician negligent.
Conflict between clinicians or departments can get testy in the clinical record; don’t let that happen. An otherwise defensible record of care can become a nightmare for defense counsel when an interpersonal or interdepartmental conflict is played out in the clinical record. As with personal conflict, defensive addendums to a patient’s record can be damaging. Jurors generally reward “finger pointing” between medical professionals with a verdict for the plaintiff, even when the care itself may be defensible. Regularly held peer review offers clinicians an opportunity to discuss difficult cases without fearing that those discussions will be used as evidence. A formal peer review committee is the exclusive and proper outlet to discuss challenging clinical cases.
Appropriate care for our patients is the ultimate necessity. It can be tricky for a clinician seeking a consultation to challenge the consultant’s recommendation. When confronted with a recommendation that leaves you (the referring clinician) with “heartburn,” it may be helpful for you to restate your misgivings affirmatively—for example, “My concern with that approach is ___,” then state the risks in the gravest terms the situation will allow. Make your preferred course of action apparent: “Honestly, I’d like to admit the patient because of ____.”
If you remain uneasy, seek another colleague’s opinion. Record the substance of the consultation, concerns, and responses fully, accurately but dispassionately, in the patient’s record.
Make sure to give the consultant all the clinical information available; and if you are the consultant, be sure you have received all available information. Treat the consultation formally and with your full attention. The jury will expect the consultant to be fully involved in caring for the patient.
Here, if the emergency physician did not agree with the hematologist, it would have been reasonable for him to obtain a second opinion or to admit the patient and begin empiric antibiotic treatment. —DML