Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Miscommunication Over Two Fractures
A 39-year-old man was taken to the defendant hospital following a motor vehicle accident in New York State. He had jaw pain in addition to other complaints, and x-rays were taken. An emergency physician reviewed the results and determined that they were positive for a fracture of the radial head of the right wrist and negative for fractures of the mandible. The patient was treated for the wrist fracture and released.
The next day, hospital radiologists reviewed the man’s x-rays and noted a probable fracture of the right mandibular condyle. A radiologist contacted the emergency department (ED) to report the probable fracture. The emergency physician viewed the patient’s films again but believed that the radiologist was referring to the already diagnosed wrist fracture.
About three weeks later, the patient went to another physician complaining of persistent jaw pain and was sent for further x-rays. A diagnosis was made of a fractured mandible that had developed into a deformity of the mandibular joint. The man required two subsequent surgeries to reconstruct his jaw, but he now has temporomandibular joint dysfunction, a very painful condition.
The plaintiff alleged negligence in the emergency physician’s failure to diagnose the fracture. The hospital interpleaded a nurse practitioner who cared for the plaintiff in the ED and the treating emergency physician. The hospital claimed that the two clinicians were at fault for the delay in diagnosis.
According to a published account, a defense verdict was returned.
Sometimes defendants win, and you can’t help but wonder why. The radiologist’s finding of a mandibular fracture would seem to override an emergency physician’s opinion to the contrary. The failure to correctly communicate or understand which fracture was in contention would not seem to be a very good explanation for this misdiagnosis. —JP
Bladder and Ureter Injured During Hysterectomy
The patient, a 50-year-old Pennsylvania woman, underwent a hysterectomy after a uterine fibroid was identified by her treating gynecologists. Because the woman had a history of breast cancer, her doctors also decided to remove her ovaries during the procedure.
According to the patient, her bladder and ureter were transected during the surgery, necessitating a temporary catheter. She was monitored for a year until she changed urologists and underwent a second surgery, during which the ureter was successfully repaired.
The plaintiff claimed that the only way for such an injury to have occurred without negligence was if she had developed scar tissue, and there was no evidence of scar tissue.
The defendants claimed that injury to the ureter is a known complication of the procedure in question. The defendants also claimed that the injury was caused by an electrocautery device that was used during the hysterectomy, and that the actual hole developed two days later and was identified when blood was detected in the plaintiff’s urine.
According to a published report, a defense verdict was returned.
Fortunately, we do not require surgeons to be perfect. Transecting a ureter is a known, though infrequent, complication of hysterectomy with salpingo-oophorectomy. The injury was discovered and treated, and that is what is necessary. A thorough explanation and apology can go a long way to prevent lawsuits. Who knows whether open communication and a caring attitude might have prevented this one? —JP
Chest X-Ray Refused, Undiagnosed Empyema
The patient, a middle-aged Virginia man in good health, awoke one night with chills and body aches. He was seen by the defendant physicians the next day. At that visit, he was offered a chest x-ray but declined. The defendants prescribed amoxicillin and sent the man home.
During the two months that followed, the patient was seen by the defendants several times for continuing respiratory symptoms. The defendants never made a definitive diagnosis.
At the patient’s final appointment with the defendants, he underwent a chest x-ray. After reviewing the x-ray images, the defendants sent the patient to the hospital on an emergency basis. He was diagnosed with empyema (specifically, a collection of pus in the pleural space around the left lung). He underwent a left thoracotomy, left lung decortication, drainage to treat pneumonia and empyema, and a muscle flap procedure in which muscle was taken from his back to encase the affected lung. He was hospitalized for 13 days.
The plaintiff experienced partial loss of his left lung, diminished lung capacity, increased susceptibility to future infections, and psychological injuries.
At trial, the plaintiff and defendants gave conflicting testimony regarding the patient’s reported symptoms and complaints and whether the patient was “offered” or “urged” to have a chest x-ray.
According to a published account, a $475,000 settlement was reached.
While the symptoms and complaints may have been in dispute, the patient clearly refused a chest x-ray at his initial appointment and likely refused subsequent x-ray studies. Managing a noncompliant patient is procedurally difficult and legally risky. Patients who refuse examinations, tests, or referrals may “throw off” the clinician’s diagnostic workup, with inaccurate or incomplete results.
Following a poor outcome, the plaintiff’s attorney will recast clinician–patient interactions to minimize the impact of the patient’s wishes on the clinician’s judgment, and claim that the patient would have consented but for the clinician’s failure to communicate some aspect of the refused intervention.
Therefore, when confronted with a patient refusing care, it is important to fully explain the nature of the recommended intervention. Identify and document the reasons for refusal and response to the refusal (eg, “patient refusing x-ray: concerned about radiation exposure; five-minute discussion with patient discussing relatively small radiation dosage; patient understands but insists: ‘I want no radiation.’”). When care is refused, it is generally helpful to record the patient’s actual words in quotes and the clinician’s response to the assertions.
Further, when family members are present, it is also helpful to record family members’ involvement as the patient’s refusal is addressed. Often this level of attention may change the patient’s mind or serve to enlist the support of a family member to alleviate the patient’s concerns.
Lastly, be sure to record the risks of noncompliance in plain terms (eg, “risk of death and undetected progression of serious illness discussed over 15 minutes with sister, Jane, and nurse, Camille, present”). Be frank with the patient, and be clear in the record. —DML
Deadly Prescription Combination for Chronic Back Injury
In July 2007, a 54-year-old Texas man was seen at a family medical clinic, owned by Ms. A. and Mr. B., seeking pain medication for a chronic back injury. Earlier that year, Ms. A. and Mr. B. had retained Mr. C. to search for a medical director for the clinic, and Dr. D. was hired.
At the patient’s July 2007 visit, he was given prescriptions for acetaminophen with hydrocodone, alprazolam, and carisoprodol. He died two days later.
Plaintiff for the decedent alleged that Dr. D. provided inappropriate dosages and an inappropriate combination of drugs. According to the plaintiff, the decedent was not examined by Dr. D., and it was Dr. D.’s routine to sign preprinted prescriptions without examining patients or even being on the clinic premises.
The plaintiff also alleged negligence in the clinic’s hiring of Dr. D., maintaining that at the time he was hired, Dr. D. was under investigation by the state medical board regarding claims that he had been prescribing narcotics for cash payments; Dr. D.’s medical license had been suspended for a time in the 1990s. The plaintiff alleged gross negligence on the part of Ms. A., Mr. B., and Mr. C. in hiring Dr. D., claiming that they were all aware of Dr. D.’s history, the investigation, and his frequent failure to examine patients.
Ms. A. and Mr. B. claimed that they were unaware of Dr. D.’s background. Mr. C. argued that he had been unable to look into Dr. D.’s background on the medical board’s Web site because he did not know how to use a computer, and that checking Dr. D.’s background was the responsibility of Ms. A. and Mr. B.
According to a published account, Mr. B. settled for an undisclosed amount prior to trial. A jury found Dr. D. 65% at fault, the clinic 30% at fault, and Mr. C. 5% at fault. The jury awarded $1.7 million in compensatory damages, $8 million in exemplary damages against Dr. D., and $1 million in exemplary damages against the clinic.
Prescribing narcotics with no exam, compounded by using preprinted narcotic prescriptions, is clearly egregious and was appropriately met with a substantial verdict. However, a version of this patient is seen in ambulatory settings every day: the patient with chronic pain, requesting (or commonly demanding) combinations of potent substances. It bears repeating that additive effects, such as central nervous system and respiratory depression, must be considered when prescribing or refilling medications.
Cases of “unintentional overdose” are a common source of malpractice litigation. A plaintiff’s lawyer will characterize a patient’s frequent and urgent demands for controlled substances as a “cry for help”—a cry that should have been recognized by the clinician.
While the result may depend on the jury pool, many jurors would have no trouble placing blame on a clinician now cast as “an enabler.” The patient’s friends and family, who may have formerly pressured clinicians to prescribe controlled substances for the patient, now may insist the clinician “kept him drugged up.”
Ideally, patients with heavy demands for controlled substances would be evaluated and managed in a chronic pain practice, or pursuant to a chronic pain policy. Both help minimize “doctor shopping,” improve patient care and adherence to accepted pain management strategies, provide a reasonable means to handle abusive or overly demanding patients, and provide a “unified front” for prescribing within a group. Clinicians should be prepared to meet high-pressure demands for narcotics with a frank response, saying that a clinician may be sanctioned for prescribing powerful substances that can have lethal effects.
Judge the need for narcotics independently, and conduct an appropriate examination—even in the patient of another clinician who insists he or she “just needs a refill.” Explain the inherent risks of polypharmacy, and document the discussion.
Conduct short, periodic staff meetings to discuss any patients with heavy or concerning controlled substance use. At the same time, treat all patients with concern and respect and compassion. —DML