Inadequate Assessment of Man With Depression
A 35-year-old Ohio man was arrested for DUI. Because he exhibited suicidal tendencies and signs of depression, he was transported to an emergency department, where he was evaluated by three emergency physicians. He was then discharged to a facility for individuals who need to sleep off the effects of alcohol after drinking too much. He was left at the facility without any paperwork or any indications that he was experiencing depression or suicidal ideation. Within minutes of his being dropped off, he hanged himself in a bathroom.
The plaintiff alleged negligence in the three emergency physicians’ assessment and treatment of the decedent’s depression, suicidal ideation, and comorbid conditions; according to the plaintiff, the defendants failed to provide proper dosing and monitoring of the effectiveness of the antidepressant medication they prescribed. Additionally, the plaintiff claimed that the defendants failed to obtain and document an adequate health history.
The defendants claimed that the decedent’s injuries were self-inflicted and that proper treatment was provided. The defendants contended that the decedent denied a desire to commit suicide and said he wanted to receive treatment for alcohol abuse.
According to a published account, a defense verdict was returned.
Medical malpractice cases commonly arise from mental health treatment. If emergency diagnosis and treatment of mental health conditions is within your scope of practice, be cautious and proceed formally. There are a few steps clinicians can take to ensure that the patient is receiving optimal care while lowering malpractice risk.
Use diagnostic terms appropriately, accurately, and precisely. Referring to a patient who is having a bad day as depressed is sloppy; describing a withdrawn patient as antisocial is often incorrect.
Always show concern for patients, and let the record reflect your concern for the patient’s well-being. Avoid making disparaging remarks that may be overheard, repeated, and used as evidence at trial. Jurors confronted with such remarks will be invited to infer that the clinician did not care about the patient, did not respect the patient, made value judgments about the patient, or considered treating mental health problems a bother.
Perform a proper psychiatric exam. While time constraints will preclude a full psychiatric workup, we should obtain a history of present illness and previous history, including hospitalizations. In addition, we should perform a mental status examination. This includes an objective determination of:
• General appearance
• Thought process and content
• Ability to perform calculations
• Judgment, and
• Higher cortical functioning (eg, interpretation of complex ideas).
The mental status exam is important because it adds objective data to the patient’s subjective history of present illness and may be useful in defending the clinician’s decisions. If you rarely perform a mental status exam, use a template or checklist when you do to ensure completeness.
Address suicidality and homicidality forthrightly. These areas represent the lion’s share of mental health malpractice cases. Any cause for concern should be acted upon fully and formally, with documentation to support your rationale and actions.
Don’t reach for psychotropic agents too quickly or without adequate follow-up. A skilled plaintiff’s lawyer can develop an entire theory of the case around a clinician’s rash use of “a pill to solve the patient’s problems.” Therefore, it is generally recommended to start psychoactive medications in conjunction with a comprehensive plan to monitor the patient’s response and overall functioning.
In this case, a defense verdict was returned. It is probable that the emergency physicians’ records demonstrated appropriate concern for the patient, and the jurors determined that the patient’s suicide was unfortunate but unforeseeable. —DML
Antiviral Ordered, Administration Delayed
Early one afternoon, a 36-year-old Pennsylvania woman was brought to a hospital emergency department by her mother, who reported that her daughter had sounded confused in a phone conversation. The patient had been experiencing virus-like symptoms for several days.
CT was performed with normal findings; a lumbar puncture showed inflammation, which was interpreted as evidence of a viral condition. The defendant emergency physician consulted with an infectious disease specialist, who recommended administration of acyclovir, stat. The emergency physician wrote the order but without the stat notation.
An hour later, the infectious disease physician arrived to examine the patient and ordered acyclovir, stat. The medication was still not administered for another three hours, by which time the patient was comatose. She was then transferred emergently to another hospital, where she was placed in a drug-induced coma.
After three weeks’ hospitalization, the patient was transferred to an inpatient rehabilitation facility. She sustained severe short-term memory loss and requires 24-hour care.
The plaintiff claimed that she was infected with herpesviral encephalitis and that acyclovir should have been administered as soon as stroke was ruled out by CT.
The defendant physicians claimed that they ordered timely administration of acyclovir but that the hospital failed to administer it. The defendants also claimed that the plaintiff’s symptoms were consistent with several conditions and that a diagnosis was made promptly after testing. The defendants maintained that the diagnosis of herpesviral encephalitis can take days but was reached for the plaintiff in just five hours. The defendants also claimed that the delay in the administration of acyclovir had no bearing on the patient’s outcome, as it takes several weeks of acyclovir administration to kill this virus.
The hospital settled for a confidential amount shortly before trial. A jury found the hospital and the two physicians negligent, but determined that only the hospital’s negligence caused the plaintiff harm. A $23 million verdict was returned against the hospital.
This is a substantial verdict against the hospital. The physician defendants were found to have breached the standard of care, but no causal relationship was seen between this breach and the damages sustained by the plaintiff. In contrast, the jurors found the hospital’s breach causally related to the plaintiff’s poor outcome.
To obtain recovery on a tort theory of negligence, a plaintiff must prove four elements by a preponderance of the evidence:
• A legal duty to act. This exists any time there is a clinician-patient relationship in a professional setting.
• Breach of the standard of care.
• A determination that the clinician’s breach of the standard of care caused the harm.
These last three elements are generally established and rebutted through expert testimony.
In this case, it is unclear how the jurors came to the conclusion that the physicians breached the standard of care. Presumptively, the jurors may have faulted the emergency physician for ordering the acyclovir without the stat designation; and the infectious disease physician, for taking one hour after consultation to arrive at the patient’s bedside for examination (although this time frame seems reasonable). In the final analysis, however, the jurors did not believe that the five-hour time period from the patient’s admission to diagnosis was causal, but did believe that the three-hour delay from presumptive diagnosis to administration of acyclovir was causally correlated with the patient’s resulting condition.
Under the doctrine of respondeat superior (Latin for “let the master answer”), the hospital is responsible for the action of its nurses. Here, the jury found the nurses’ delay in administering the acyclovir problematic.
When action must be taken immediately in a ward setting, it may or may not be reasonable simply to make a stat designation and expect immediate action. In this case, it may have been useful to communicate directly with the patient’s nurse and explain why timeliness was critical—particularly because a busy nurse may not see a stat order immediately or may not consider the administration of an antiviral medication particularly time sensitive.
This case would have been difficult for the defense attorney. The infectious disease physician’s main defense, that the correct treatment was ordered but not given by the nurse, amounted to finger-pointing among professional defendants. Jurors expect professionals to work as a team and view finger-pointing as an admission of liability.
Further, the hospital’s main point of defense was that the administration of acyclovir was not especially time sensitive, although the attending infectious disease physician behaved at all times as though it was: giving verbal instructions that the acyclovir was required immediately, arriving at the patient’s bedside within one hour, and reiterating the order for acyclovir on a stat basis. This left defense counsel with an uphill road to climb to convince a jury that the administration of acyclovir was not especially time sensitive. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.