Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Antidepressant Wrong Choice for Teen
In January 2006, a 15-year-old Georgia girl presented to a clinic for recommended follow-up. She had been seen in an emergency department (ED) two days earlier for nausea, abdominal pain, and vomiting. At her clinic visit, the patient was seen by an NP, Ms. M., who practiced under the supervision of Dr. P.
Ms. M., after being informed about the girl’s ED visit, wrote prescriptions for antinausea medication and fluoxetine, using a prescription pad with pages that had been pre-signed by Dr. P. According to Ms. M.’s notes, the fluoxetine was prescribed for depression. The patient was told to return in one month.
Three weeks later, the girl hanged herself with a belt. She was found by her mother and brother and transported to the hospital. The patient suffered a catastrophic brain injury and required around-the-clock care until her death three years later.
The plaintiff claimed that fluoxetine should not have been prescribed because the decedent had no signs of clinical depression. The plaintiff also noted that the FDA had issued a warning specifying that fluoxetine use in adolescents increases the risk for suicidal thinking and behavior.
The defendant claimed that the NP’s clinical evaluation for depression supported that diagnosis. The defendant also claimed that the girl’s suicide attempt followed a breakup with her boyfriend and an argument with her father, and that use of the medication played no part in her suicide attempt.
In a bench verdict, the plaintiff was awarded $3,459,892.
When an NP prescribes a medication despite a black-box warning and the warned event occurs, the defense has little hope; when the medication is written on a pre-signed script, there is no hope for the defense attorney. I have warned NPs and PAs never to use pre-signed scripts. It is simply illegal. If an NP does not have prescribing privileges because she practices in a state without such authority, then every script must be signed at the time written by the collaborating physician.
In this case, the NP may have been correct in her diagnosis, but under the circumstances, referring the patient to a specialist or at least having the collaborating physician weigh in on the decision was certainly in order.
I can’t help but notice that the physician was not a part of this action. —JP
Was Nurse-Midwife to Blame for Shoulder Dystocia?
During a vaginal delivery performed by a nurse-midwife, the infant of a North Carolina woman sustained a moderate brachial plexus injury with shoulder dystocia.
The plaintiff claimed that the nurse-midwife failed to call in her backup physician to help with the delivery. The plaintiff also claimed that the nurse-midwife pulled too hard on the infant’s head during the delivery, leading to the injury. The defendant denied negligence.
According to a published account, a $950,000 verdict was returned.
Cases involving shoulder dystocia in a vaginal delivery are notoriously difficult to defend. Plaintiffs are successful in claiming that infant size, with known potential for shoulder dystocia, should have been anticipated, especially when sonograms are so widely available. Once again, an advanced practice nurse, in this case a nurse-midwife, is faulted for failing to consult a physician. It is no wonder there is such an increase in the number of cesarean deliveries that are being performed. The cost of taking a chance is just too great.
It is difficult to know from the facts presented here whether the nurse-midwife erred. But it is well known among plaintiff lawyers that every parent expects a perfect baby, and when that is not the outcome, someone must be blamed. —JP
Timing of Rectal Bleeding Complaint Disputed
From 1994 to 2005, a Florida woman, age 40, was a patient of the defendant primary care physician. In 2000, she began to experience rectal bleeding, of which she claimed to have advised her doctor over the years. The physician denied that the patient ever complained of rectal bleeding before June 2005, and whether she had mentioned the problem while in his care was hotly contested.
A rectal exam was performed in October 2000, at which time the patient was noted to have hemorrhoids. However, hematology and stool hematests were negative. The physician maintained that the hemorrhoids remained stable.
The physician did not refer the woman to a gastroenterologist for evaluation until June 2005, when a complaint of rectal bleeding was first documented. In July 2005, the woman was diagnosed with rectal cancer and required removal of the right lobe of the liver due to its spread.
According to published reports, a $9,728,835.15 verdict was returned. Posttrial motions were pending.
After a poor outcome, patients may have a skewed view of how, when, and to whom they have made complaints. Motivated by fear, or a desire to maintain a fully functional status, patients may hide symptoms from their clinician, only to later recollect that such symptoms were communicated, when in fact they were not.
Legal cases involving an “unspoken complaint” often turn on the perceived credibility of the witnesses and little else. Two strategies may prove useful to minimize the risk of the uncommunicated complaint.
First, it is helpful for a practice to have multiple layers to record and capture patient complaints. Having the patient record the reason for her visit, in writing, in her own words, can improve documentation and care. On occasion, a patient’s written self-complaint can be useful to catch a symptom that may slip by during history taking. Further, medical assistants, nursing staff, and other professionals should also record patient complaints directly—habitually using quotation marks to capture the patient’s actual language where possible and appropriate. Lastly, the clinician should make a practice of first seeking the history independently, only using the patient self-report and nursing assessment to make sure all symptoms and signs have been addressed. This three-tiered system will provide a solid record for what was communicated and make clear the symptoms that were described.
But what about those complaints not communicated? A patient’s record may be “closed” through a technique known as “exhaustion.” Here, clinicians can borrow a page from attorneys: During deposition, attorneys are trained to “exhaust” all possible avenues of evidence for each possible area of questioning. The questioner will conclude by confirming for the record that the deponent has “exhausted” his memory and cannot provide any additional detail.
Clinicians, after receiving the history of present illness (HPI) and recording all pertinent positives and negatives, can “exhaust” the history by asking: “Apart from what you have already told me, do you have any other symptoms? Is anything else bothering you at all?” While clinicians often ask such a question, the response is frequently not recorded. The patient’s negative answer may be documented with language akin to: “Patient denies any additional symptoms or complaints.” Ending the history portion of the clinical note this way closes the record to additional complaints. A clinician is then well positioned to testify that it is his practice to end history taking in a manner calculated to “catch everything” and has documentation to support that claim.
Plaintiff’s counsel, reviewing records and contemplating suit, will find layer upon layer of harmonious documentation, from several professionals. This is far more defensible than a simple set of vital signs with a single brief HPI that, years later, may be cryptic at best. —DML
PA “Guarantees” Patient Does Not Have Appendicitis
A 54-year-old Utah man awoke in late February 2002 with a “gurgling” sensation and pain in his mid-abdomen. He felt sick all that day and into the next. He vomited three times the next day and noticed the pain move to the lower-right quadrant of the abdomen.
His sister took him to an urgent care clinic, where he was examined by a PA. The patient was diagnosed with flu, and antiviral medication, ibuprofen, and bed rest were prescribed. When asked about appendicitis, the PA responded, “I guarantee you do not have appendicitis.”
The patient initially felt better, but then his condition worsened. Calls to the clinic for more medication were not returned. The man was taken to another clinic 10 days later and then referred to a hospital, where he was diagnosed with a ruptured appendix.
An emergency appendectomy was performed. The patient was hospitalized for 12 days and required six months to fully recover. The plaintiff alleged negligence in the PA’s failure to diagnose appendicitis.
According to a published report, a confidential settlement was reached in mediation.
The patient in this case presented with generalized mid-abdominal pain and vomiting, with pain moving to his right lower quadrant. Migrating pain is one of the more specific findings of appendicitis, so it is not entirely clear from the facts presented why appendicitis was not considered more fully. It seems that a more complete workup, including diagnostic imaging and laboratory analysis, was indicated.
Appendicitis is common; so are complaints of abdominal pain. Appendicitis must be considered in all cases of abdominal pain, as must meningitis in all cases of headache. Yet any abdominal pain could be appendicitis, and any headache could be meningitis. The trick is panning out the few with a serious illness from the many with mild disease—all potentially presenting with the same symptom complex early on.
We cannot observe all patients indefinitely. Often, a patient must be discharged with vague symptoms and nonspecific findings that could be the start of something more grave. In such cases, clinicians should document the negative findings that make further emergency evaluation unwarranted and enlist the patient to monitor for signs and symptoms warranting an immediate return. Document those instructions fully. This approach can be defended in court, because the clinician considered a grave diagnosis yet had no reason to act on it in the absence of more specific symptomatology, and informed the patient of changes requiring immediate return.
Patients often raise the specter of ominous diagnoses. Such concerns should be met with an acknowledgement that such concerns are a “good thought,” followed by what is hopefully a laundry list of signs and symptoms that the patient does not have. Discharging patients with specific instructions builds rapport with the patient and family. I’ve found that patients so informed will often return if symptoms change to fit a previously discussed pattern and will even credit the clinician for making the diagnosis.
Of course, squarely at odds with this approach are dogmatic pronouncements “guaranteeing” patients of a diagnosis or outcome. Such certitude should be reserved for actors practicing medicine on television or the truly clairvoyant. (Most of us are neither).
One thing is certain: If such pronouncements are wrong, a plaintiff’s attorney will hang them around the neck of a defending clinician as an albatross—and a jury will be invited to conclude that the clinician was arrogant and imprudent.
In sum, rarely speak in terms of absolutes. Always respect the chance of a changing clinical course. And document your concern and instructions clearly. —DML