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Eardrum Perforated During Attempted Bug Removal
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Eardrum Perforated During Attempted Bug Removal
A small boy was taken to a Utah emergency department with a live bug stuck in his left ear canal. He was examined by the defendant emergency physician, who attempted to remove the bug using a surgical instrument. The child’s tympanic membrane was perforated.
A dispute arose as to whether the perforation was the result of the defendant’s procedure or some other cause.
OUTCOME
A defense verdict was returned.
COMMENT
In the case presented, a jury concluded that evidence of negligence or compensable damage (or both) was insufficient to warrant recovery. That said, the case raises certain points worthy of discussion.
The first step to managing aural foreign bodies is to determine whether a true emergency exists. Button batteries lodged in the ear represent an emergency because they can cause significant tissue destruction through liquefaction necrosis if not removed from the ear within hours. If initial attempts to remove a button battery are unsuccessful, emergent otolarygologic consultation is required. During these initial attempts, no liquid should be used, as moisture may accelerate battery leakage.
However, most aural foreign bodies may be safely left in the ear. Therefore, the clinician should set reasonable expectations and limits for removal efforts. As a matter of good medicine, before any attempt at removal, the patient (or in this case, the parent or guardian) should be informed that some foreign bodies are difficult to remove and may require referral to an otolaryngologist. Explain the plan to the patient, including at what point the clinician intends to cease removal efforts and seek referral. Have a plan, stick to the plan, and if it is unsuccessful, refer to an otolaryngologist or other appropriate clinician for elective removal.
It is difficult not to view foreign body removal as a personal challenge. Immediately removing the object gives the patient a cure and the clinician a trophy to show the patient and anyone else who cares to see it (a number vastly overestimated by the clinician). But approaching the removal of an aural foreign body as a conquistador may build patient expectations unnecessarily and ultimately demoralize the clinician, should initial efforts prove unsuccessful. A demoralized clinician is soon a frustrated clinician, who may become overly aggressive in an effort to “get the job done.” Litigation may follow when the parents believe that the whole child—not just the child’s external auditory canal—has been traumatized in an overly zealous effort to remove an innocuous aural foreign body.
Document what you start with. Be sure to describe any trauma to the canal or bleeding, location of the object, and any observable damage to the tympanic membrane before attempting removal. Make an objective assessment of the patient’s hearing before and after removal attempts. If the patient is uncooperative at any point, removal efforts should stop.
Various techniques may be used to remove foreign bodies. Irrigation is commonly used in patients with an intact tympanic membrane. The object may be removed by suction, using a standard-tip or specialized otoscope speculum (such as a Hognose device). Instrumentation such as alligator forceps, bayonet forceps, or curettes are generally available and frequently used.
Adhesives offer a removal option when the object can be seen and contacted but not grasped. For example, liquid skin adhesive may be applied to the stick end of a swab and placed in contact with the foreign body under direct visualization. The adhesive may be left in contact for 30 to 60 seconds before the stick and attached object are slowly removed. Irrigating with a topical anesthetic may have only a partial effect, in many cases limiting mechanical instrumentation efforts.
Live insects within the external auditory canal can cause a patient impressive and understandable anxiety. A squirming insect can be euthanized using mineral oil or lidocaine. Mineral oil is safer than lidocaine when the integrity of the tympanic membrane is in question, and—surprisingly—it kills insects more rapidly (as demonstrated by a study in which death times were compared among cockroaches immersed in oil, 2% lidocaine, 4% lidocaine, or viscous lidocaine). The insect can then be removed by irrigation, an alligator forceps, or a suction tip.
In sum, document the patient’s condition before and after removal efforts. Relish your successes, but have no shame when circumstances require an operating microscope, anesthesia, and/or specialized experience. Protect the patient’s interests, and remember primum non nocere: first, do no harm. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Eardrum Perforated During Attempted Bug Removal
A small boy was taken to a Utah emergency department with a live bug stuck in his left ear canal. He was examined by the defendant emergency physician, who attempted to remove the bug using a surgical instrument. The child’s tympanic membrane was perforated.
A dispute arose as to whether the perforation was the result of the defendant’s procedure or some other cause.
OUTCOME
A defense verdict was returned.
COMMENT
In the case presented, a jury concluded that evidence of negligence or compensable damage (or both) was insufficient to warrant recovery. That said, the case raises certain points worthy of discussion.
The first step to managing aural foreign bodies is to determine whether a true emergency exists. Button batteries lodged in the ear represent an emergency because they can cause significant tissue destruction through liquefaction necrosis if not removed from the ear within hours. If initial attempts to remove a button battery are unsuccessful, emergent otolarygologic consultation is required. During these initial attempts, no liquid should be used, as moisture may accelerate battery leakage.
However, most aural foreign bodies may be safely left in the ear. Therefore, the clinician should set reasonable expectations and limits for removal efforts. As a matter of good medicine, before any attempt at removal, the patient (or in this case, the parent or guardian) should be informed that some foreign bodies are difficult to remove and may require referral to an otolaryngologist. Explain the plan to the patient, including at what point the clinician intends to cease removal efforts and seek referral. Have a plan, stick to the plan, and if it is unsuccessful, refer to an otolaryngologist or other appropriate clinician for elective removal.
It is difficult not to view foreign body removal as a personal challenge. Immediately removing the object gives the patient a cure and the clinician a trophy to show the patient and anyone else who cares to see it (a number vastly overestimated by the clinician). But approaching the removal of an aural foreign body as a conquistador may build patient expectations unnecessarily and ultimately demoralize the clinician, should initial efforts prove unsuccessful. A demoralized clinician is soon a frustrated clinician, who may become overly aggressive in an effort to “get the job done.” Litigation may follow when the parents believe that the whole child—not just the child’s external auditory canal—has been traumatized in an overly zealous effort to remove an innocuous aural foreign body.
Document what you start with. Be sure to describe any trauma to the canal or bleeding, location of the object, and any observable damage to the tympanic membrane before attempting removal. Make an objective assessment of the patient’s hearing before and after removal attempts. If the patient is uncooperative at any point, removal efforts should stop.
Various techniques may be used to remove foreign bodies. Irrigation is commonly used in patients with an intact tympanic membrane. The object may be removed by suction, using a standard-tip or specialized otoscope speculum (such as a Hognose device). Instrumentation such as alligator forceps, bayonet forceps, or curettes are generally available and frequently used.
Adhesives offer a removal option when the object can be seen and contacted but not grasped. For example, liquid skin adhesive may be applied to the stick end of a swab and placed in contact with the foreign body under direct visualization. The adhesive may be left in contact for 30 to 60 seconds before the stick and attached object are slowly removed. Irrigating with a topical anesthetic may have only a partial effect, in many cases limiting mechanical instrumentation efforts.
Live insects within the external auditory canal can cause a patient impressive and understandable anxiety. A squirming insect can be euthanized using mineral oil or lidocaine. Mineral oil is safer than lidocaine when the integrity of the tympanic membrane is in question, and—surprisingly—it kills insects more rapidly (as demonstrated by a study in which death times were compared among cockroaches immersed in oil, 2% lidocaine, 4% lidocaine, or viscous lidocaine). The insect can then be removed by irrigation, an alligator forceps, or a suction tip.
In sum, document the patient’s condition before and after removal efforts. Relish your successes, but have no shame when circumstances require an operating microscope, anesthesia, and/or specialized experience. Protect the patient’s interests, and remember primum non nocere: first, do no harm. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Eardrum Perforated During Attempted Bug Removal
A small boy was taken to a Utah emergency department with a live bug stuck in his left ear canal. He was examined by the defendant emergency physician, who attempted to remove the bug using a surgical instrument. The child’s tympanic membrane was perforated.
A dispute arose as to whether the perforation was the result of the defendant’s procedure or some other cause.
OUTCOME
A defense verdict was returned.
COMMENT
In the case presented, a jury concluded that evidence of negligence or compensable damage (or both) was insufficient to warrant recovery. That said, the case raises certain points worthy of discussion.
The first step to managing aural foreign bodies is to determine whether a true emergency exists. Button batteries lodged in the ear represent an emergency because they can cause significant tissue destruction through liquefaction necrosis if not removed from the ear within hours. If initial attempts to remove a button battery are unsuccessful, emergent otolarygologic consultation is required. During these initial attempts, no liquid should be used, as moisture may accelerate battery leakage.
However, most aural foreign bodies may be safely left in the ear. Therefore, the clinician should set reasonable expectations and limits for removal efforts. As a matter of good medicine, before any attempt at removal, the patient (or in this case, the parent or guardian) should be informed that some foreign bodies are difficult to remove and may require referral to an otolaryngologist. Explain the plan to the patient, including at what point the clinician intends to cease removal efforts and seek referral. Have a plan, stick to the plan, and if it is unsuccessful, refer to an otolaryngologist or other appropriate clinician for elective removal.
It is difficult not to view foreign body removal as a personal challenge. Immediately removing the object gives the patient a cure and the clinician a trophy to show the patient and anyone else who cares to see it (a number vastly overestimated by the clinician). But approaching the removal of an aural foreign body as a conquistador may build patient expectations unnecessarily and ultimately demoralize the clinician, should initial efforts prove unsuccessful. A demoralized clinician is soon a frustrated clinician, who may become overly aggressive in an effort to “get the job done.” Litigation may follow when the parents believe that the whole child—not just the child’s external auditory canal—has been traumatized in an overly zealous effort to remove an innocuous aural foreign body.
Document what you start with. Be sure to describe any trauma to the canal or bleeding, location of the object, and any observable damage to the tympanic membrane before attempting removal. Make an objective assessment of the patient’s hearing before and after removal attempts. If the patient is uncooperative at any point, removal efforts should stop.
Various techniques may be used to remove foreign bodies. Irrigation is commonly used in patients with an intact tympanic membrane. The object may be removed by suction, using a standard-tip or specialized otoscope speculum (such as a Hognose device). Instrumentation such as alligator forceps, bayonet forceps, or curettes are generally available and frequently used.
Adhesives offer a removal option when the object can be seen and contacted but not grasped. For example, liquid skin adhesive may be applied to the stick end of a swab and placed in contact with the foreign body under direct visualization. The adhesive may be left in contact for 30 to 60 seconds before the stick and attached object are slowly removed. Irrigating with a topical anesthetic may have only a partial effect, in many cases limiting mechanical instrumentation efforts.
Live insects within the external auditory canal can cause a patient impressive and understandable anxiety. A squirming insect can be euthanized using mineral oil or lidocaine. Mineral oil is safer than lidocaine when the integrity of the tympanic membrane is in question, and—surprisingly—it kills insects more rapidly (as demonstrated by a study in which death times were compared among cockroaches immersed in oil, 2% lidocaine, 4% lidocaine, or viscous lidocaine). The insect can then be removed by irrigation, an alligator forceps, or a suction tip.
In sum, document the patient’s condition before and after removal efforts. Relish your successes, but have no shame when circumstances require an operating microscope, anesthesia, and/or specialized experience. Protect the patient’s interests, and remember primum non nocere: first, do no harm. —DML
Neonatal Team Absent at Difficult Birth
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Neonatal Team Absent at Difficult Birth
A Virginia woman was referred for an ultrasound by her obstetrician at 20 weeks’ gestation due to a suspicion of omphalocele or gastroschisis. The imaging revealed gastroschisis with a moderate amount of exposed bowel.
The mother presented to the hospital in labor at 38 weeks’ gestation. From the beginning, the electronic monitor tracing of the fetal heart rate exhibited a sinusoidal pattern. At the shift nurse’s request, the fetal monitor strip was reviewed with a physician who found it to be “almost” sinusoidal. When a second nurse started her shift, the fetal heart rate was 60 to 70 beats/min. A physician artificially ruptured the amniotic membranes. No personnel from the pediatric service, nursery, or neonatal ICU had yet been contacted.
Upon rupture of the membranes, thick meconium was found in the amniotic fluid. A fetal scalp electrode was placed, showing a fetal heart rate between 30 and 100 beats/min. A second fetal scalp electrode was placed, and it showed the same fetal heart rate range.
A baby boy delivered precipitously in critical condition, with Apgar scores of 1 at one minute, 2 at five minutes, and 4 at 10 minutes. The newborn was depressed, flaccid, blue, and unresponsive, with thick meconium below the vocal cords, obstructing his breathing at the time of birth.
The neonatal ICU team was called after delivery. When they arrived, the infant was making no respiratory effort and had a heart rate of 60 beats/min. He was suctioned, but the airway box was blocked by meconium. The baby was intubated at four minutes after birth, but ventilation was initially unsuccessful; he was extubated and reintubated at five minutes postdelivery.
Results of an arterial blood sample were consistent with severe metabolic acidosis from hypoxia in utero and during resuscitation. Fetal cooling, which might have ameliorated the infant’s ongoing brain injury, was ruled out by the presence of gastroschisis.
The child experienced hypoxic ischemic encephalopathy from intrapartum asphyxia, which resulted in microcephaly. He requires a feeding tube due to an inability to swallow and will need lifelong care.
OUTCOME
Two suits were filed, one on the infant’s behalf and one on the mother’s. The infant’s case was settled for $1.8 million, and the mother’s case for $1 million.
COMMENT
This fetus was clearly in distress during delivery, and based on the confirmed presence of gastroschisis, the neonatal team should have been at the bedside for delivery. Even assuming that the strip was read as a pseudosinusoidal pattern, the fetus was frankly bradycardic, and the certainty of caring for an infant with exposed bowel contents required the neonatal team’s presence.
Gastroschisis refers to the failure of the developing fetus’s abdominal wall to close, resulting in protrusion of a portion of fetal intestine outside the abdominal cavity. It is relatively rare, with an incidence of 1.4 to 2.5 per 10,000 live births. A sinusoidal fetal heart rate pattern is characterized by a regular, smooth, undulating form typical of a sine wave. It is rare and ominous, and is associated with high fetal morbidity and mortality. By contrast, a pseudosinusoidal pattern is a benign form showing long-term variability. A true sinusoidal pattern lacks the beat-to-beat variability of the more jagged-appearing pseudosinusoidal pattern.
In this case, problems at delivery were foreseeable. A jury would have little trouble understanding gastroschisis and would find it alarming. Given the fetal bradycardia and monitor pattern, most jurors would conclude that the standard of care was breached. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Neonatal Team Absent at Difficult Birth
A Virginia woman was referred for an ultrasound by her obstetrician at 20 weeks’ gestation due to a suspicion of omphalocele or gastroschisis. The imaging revealed gastroschisis with a moderate amount of exposed bowel.
The mother presented to the hospital in labor at 38 weeks’ gestation. From the beginning, the electronic monitor tracing of the fetal heart rate exhibited a sinusoidal pattern. At the shift nurse’s request, the fetal monitor strip was reviewed with a physician who found it to be “almost” sinusoidal. When a second nurse started her shift, the fetal heart rate was 60 to 70 beats/min. A physician artificially ruptured the amniotic membranes. No personnel from the pediatric service, nursery, or neonatal ICU had yet been contacted.
Upon rupture of the membranes, thick meconium was found in the amniotic fluid. A fetal scalp electrode was placed, showing a fetal heart rate between 30 and 100 beats/min. A second fetal scalp electrode was placed, and it showed the same fetal heart rate range.
A baby boy delivered precipitously in critical condition, with Apgar scores of 1 at one minute, 2 at five minutes, and 4 at 10 minutes. The newborn was depressed, flaccid, blue, and unresponsive, with thick meconium below the vocal cords, obstructing his breathing at the time of birth.
The neonatal ICU team was called after delivery. When they arrived, the infant was making no respiratory effort and had a heart rate of 60 beats/min. He was suctioned, but the airway box was blocked by meconium. The baby was intubated at four minutes after birth, but ventilation was initially unsuccessful; he was extubated and reintubated at five minutes postdelivery.
Results of an arterial blood sample were consistent with severe metabolic acidosis from hypoxia in utero and during resuscitation. Fetal cooling, which might have ameliorated the infant’s ongoing brain injury, was ruled out by the presence of gastroschisis.
The child experienced hypoxic ischemic encephalopathy from intrapartum asphyxia, which resulted in microcephaly. He requires a feeding tube due to an inability to swallow and will need lifelong care.
OUTCOME
Two suits were filed, one on the infant’s behalf and one on the mother’s. The infant’s case was settled for $1.8 million, and the mother’s case for $1 million.
COMMENT
This fetus was clearly in distress during delivery, and based on the confirmed presence of gastroschisis, the neonatal team should have been at the bedside for delivery. Even assuming that the strip was read as a pseudosinusoidal pattern, the fetus was frankly bradycardic, and the certainty of caring for an infant with exposed bowel contents required the neonatal team’s presence.
Gastroschisis refers to the failure of the developing fetus’s abdominal wall to close, resulting in protrusion of a portion of fetal intestine outside the abdominal cavity. It is relatively rare, with an incidence of 1.4 to 2.5 per 10,000 live births. A sinusoidal fetal heart rate pattern is characterized by a regular, smooth, undulating form typical of a sine wave. It is rare and ominous, and is associated with high fetal morbidity and mortality. By contrast, a pseudosinusoidal pattern is a benign form showing long-term variability. A true sinusoidal pattern lacks the beat-to-beat variability of the more jagged-appearing pseudosinusoidal pattern.
In this case, problems at delivery were foreseeable. A jury would have little trouble understanding gastroschisis and would find it alarming. Given the fetal bradycardia and monitor pattern, most jurors would conclude that the standard of care was breached. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Neonatal Team Absent at Difficult Birth
A Virginia woman was referred for an ultrasound by her obstetrician at 20 weeks’ gestation due to a suspicion of omphalocele or gastroschisis. The imaging revealed gastroschisis with a moderate amount of exposed bowel.
The mother presented to the hospital in labor at 38 weeks’ gestation. From the beginning, the electronic monitor tracing of the fetal heart rate exhibited a sinusoidal pattern. At the shift nurse’s request, the fetal monitor strip was reviewed with a physician who found it to be “almost” sinusoidal. When a second nurse started her shift, the fetal heart rate was 60 to 70 beats/min. A physician artificially ruptured the amniotic membranes. No personnel from the pediatric service, nursery, or neonatal ICU had yet been contacted.
Upon rupture of the membranes, thick meconium was found in the amniotic fluid. A fetal scalp electrode was placed, showing a fetal heart rate between 30 and 100 beats/min. A second fetal scalp electrode was placed, and it showed the same fetal heart rate range.
A baby boy delivered precipitously in critical condition, with Apgar scores of 1 at one minute, 2 at five minutes, and 4 at 10 minutes. The newborn was depressed, flaccid, blue, and unresponsive, with thick meconium below the vocal cords, obstructing his breathing at the time of birth.
The neonatal ICU team was called after delivery. When they arrived, the infant was making no respiratory effort and had a heart rate of 60 beats/min. He was suctioned, but the airway box was blocked by meconium. The baby was intubated at four minutes after birth, but ventilation was initially unsuccessful; he was extubated and reintubated at five minutes postdelivery.
Results of an arterial blood sample were consistent with severe metabolic acidosis from hypoxia in utero and during resuscitation. Fetal cooling, which might have ameliorated the infant’s ongoing brain injury, was ruled out by the presence of gastroschisis.
The child experienced hypoxic ischemic encephalopathy from intrapartum asphyxia, which resulted in microcephaly. He requires a feeding tube due to an inability to swallow and will need lifelong care.
OUTCOME
Two suits were filed, one on the infant’s behalf and one on the mother’s. The infant’s case was settled for $1.8 million, and the mother’s case for $1 million.
COMMENT
This fetus was clearly in distress during delivery, and based on the confirmed presence of gastroschisis, the neonatal team should have been at the bedside for delivery. Even assuming that the strip was read as a pseudosinusoidal pattern, the fetus was frankly bradycardic, and the certainty of caring for an infant with exposed bowel contents required the neonatal team’s presence.
Gastroschisis refers to the failure of the developing fetus’s abdominal wall to close, resulting in protrusion of a portion of fetal intestine outside the abdominal cavity. It is relatively rare, with an incidence of 1.4 to 2.5 per 10,000 live births. A sinusoidal fetal heart rate pattern is characterized by a regular, smooth, undulating form typical of a sine wave. It is rare and ominous, and is associated with high fetal morbidity and mortality. By contrast, a pseudosinusoidal pattern is a benign form showing long-term variability. A true sinusoidal pattern lacks the beat-to-beat variability of the more jagged-appearing pseudosinusoidal pattern.
In this case, problems at delivery were foreseeable. A jury would have little trouble understanding gastroschisis and would find it alarming. Given the fetal bradycardia and monitor pattern, most jurors would conclude that the standard of care was breached. —DML
Inadequate Assessment of Man With Depression
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.
OUTCOME
According to a published account, a defense verdict was returned.
COMMENT
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
• Attitude/rapport
• Speech
• Behavior
• Orientation
• Mood
• Affect
• Thought process and content
• Memory
• 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.
OUTCOME
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.
COMMENT
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.
• Harm.
• 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.
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.
OUTCOME
According to a published account, a defense verdict was returned.
COMMENT
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
• Attitude/rapport
• Speech
• Behavior
• Orientation
• Mood
• Affect
• Thought process and content
• Memory
• 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.
OUTCOME
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.
COMMENT
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.
• Harm.
• 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.
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.
OUTCOME
According to a published account, a defense verdict was returned.
COMMENT
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
• Attitude/rapport
• Speech
• Behavior
• Orientation
• Mood
• Affect
• Thought process and content
• Memory
• 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.
OUTCOME
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.
COMMENT
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.
• Harm.
• 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.
Did Woman Give Permission for Breast Exam?
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.
The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.
After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.
The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.
One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.
The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.
The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.
Continue for outcome >>
Outcome
According to a published account, a defense verdict was returned.
Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.
As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.
Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.
When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.
Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.
Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.
Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.
The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.
After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.
The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.
One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.
The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.
The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.
Continue for outcome >>
Outcome
According to a published account, a defense verdict was returned.
Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.
As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.
Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.
When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.
Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.
Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.
Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Did Woman Give Permission for Breast Exam?
A 58-year-old woman in Virginia was being seen by the defendant physician, an ear, nose, and throat specialist (ENT), for management of continuing sinus symptoms. According to the defendant, the patient informed the defendant’s nursing assistant that the patient had recently undergone an ultrasound that revealed “spots” on both breasts. The woman also reported a family history of breast cancer.
The defendant physician offered to examine the patient’s breasts, and she consented. A nurse assistant was present throughout the breast exam and assisted by holding the patient’s shirt. The exam was performed with the patient sitting upright; she was not offered a gown before the exam. The defendant palpated lumps in both breasts.
After the breast exam, the physician attempted to call a general surgeon for a referral, but the patient told him not to bother, as she had her own surgeon. According to the ENT, the patient did not appear upset after the breast exam and scheduled a follow-up visit with the ENT.
The next day, the patient was seen by a gynecologist for a breast exam, during which no masses were found. She also underwent breast ultrasonography, which showed a cyst in the right breast and a small cluster of cysts in the left breast. The radiologist noted that the ultrasound findings appeared to be benign in the right breast and “probably benign” in the left breast.
One month later, the patient underwent another ultrasound, which showed a simple cyst in the right breast and a cluster of benign cysts in the left breast. Two years later, the patient’s screening mammogram showed a density not seen on prior studies. The patient eventually underwent partial mastectomy for cancer in the left breast, followed by radiation therapy.
The plaintiff claimed that the defendant ENT had committed battery in performing the breast exam. The plaintiff maintained that the exam was performed without consent and without a chaperone present.
The defendant argued that the plaintiff was anxious and had expressed an obsession about developing cancer, as six members of her family had had the disease. The defendant pointed to records of numerous health care providers that the plaintiff had seen during the years before and after the visit in question.
Continue for outcome >>
Outcome
According to a published account, a defense verdict was returned.
Comment
This is not a medical malpractice case, but a battery case. Generally, an individual can be liable in three areas of law: contract, tort, and criminal. A tort is a breach of civil duty that lies between the entirely private realm of contract law (designed to standardize dealings between individuals) and criminal law (designed to protect citizens from harming each other). Battery is an intentional tort requiring nonconsensual offensive contact with another person. Battery is designed to protect an individual’s body integrity against any offensive touching.
As applied to health care, it is not necessary for a plaintiff to show that a clinician breached the standard of care or caused harm; in fact, the battery may have even helped the patient. It is also not necessary for the plaintiff to show that the clinician intended to harm the patient—only that there was an intent to engage in the contact deemed offensive.
Here, the ENT’s examination did not result in physical harm to the patient. The question is whether the patient consented to the exam; there were conflicting accounts as to whether the patient consented to the exam and whether a chaperone was present. Apparently, the jury believed that the patient had provided consent for the exam.
When conducting a sensitive examination, first, fully explain the nature of the exam before starting, and give the patient ample time to refuse. If an exam is refused, fully document the reason for the exam, reasons for refusal, and possible consequences of not performing the exam.
Second, if you practice in a specialty not typically associated with a sensitive exam, be cautious about proceeding with that sensitive exam—unless your scope of practice involves routine primary care. Here, the decision to file suit was probably motivated by the fact that an ENT performed a breast exam. Jurors may question a specialist’s actions outside the typical scope of practice in sensitive cases unless the clinician routinely provides such care, or perhaps practices in a rural location.
Third, it is wise to have a chaperone present to assist the patient and if needed, to provide testimony regarding the patient’s consent and other aspects of the exam.
Lastly, be sure to provide privacy for all patients undergoing a sensitive physical exam, and always protect the patient’s dignity. —DML
Cancer Patient Urged to Sue By Later Provider
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 52-year-old woman had a long history of abdominal pain and adhesions. In September 2005, after five years of adhesion-type abdominal pain, she underwent removal of her ovaries and fallopian tubes. A prior laparoscopic adhesiolysis had failed to resolve the pain. After the surgery, a tissue sample was sent to Dr. B., who diagnosed a “benign serous papillary tumor with psammoma bodies.”
In early 2007, the abdominal pain returned. The woman’s primary care physician immediately sent her for a series of MRIs over the next eight months. These revealed very minor changes in the lower pelvis. Ultimately, another diagnostic laparoscopy was performed, which revealed primary peritoneal cancer.
Staging surgery was performed by Dr. G., who testified at trial that she found cancer “everywhere” in the peritoneal cavity. After personally comparing pathology slides from the 2008 surgery with the tissue from the 2005 surgery, Dr. G. concluded that the tissue was virtually identical and the patient had cancer in 2005.
Dr. G. gave the woman a copy of Dr. B.’s 2005 pathology report with the advice to see a lawyer. Dr. G., however, did not provide a copy of the pathology report she had received from a gynecologic pathology expert, who had reviewed both tissue samples and concluded that Dr. B.’s diagnosis was reasonable.
The patient was ultimately diagnosed with low-grade primary peritoneal carcinoma, which was thought to have originated in her ovaries and fallopian tubes. She claimed that Dr. B.’s failure to diagnose cancer or borderline cancer in 2005 reduced her chance of survival by almost 70%. The defendant claimed that an earlier diagnosis would not have changed the plaintiff’s prognosis.
Outcome on next page >>
OUTCOME
A defense verdict was returned.
COMMENT
One of the most common reasons a patient decides to file a medical malpractice lawsuit is because a later treating professional recommends it. In this case, the staging surgeon reviewed the prior slides and concluded that the cancer should have been discovered at the time of the original surgery. It does not appear that she was a pathologist.
What is puzzling is why this provider would recommend that the patient see a lawyer, while withholding an expert pathology opinion stating that the original pathologist’s findings were reasonable. She did neither the patient nor her lawyer a favor. I am not surprised by the defense verdict in this case. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 52-year-old woman had a long history of abdominal pain and adhesions. In September 2005, after five years of adhesion-type abdominal pain, she underwent removal of her ovaries and fallopian tubes. A prior laparoscopic adhesiolysis had failed to resolve the pain. After the surgery, a tissue sample was sent to Dr. B., who diagnosed a “benign serous papillary tumor with psammoma bodies.”
In early 2007, the abdominal pain returned. The woman’s primary care physician immediately sent her for a series of MRIs over the next eight months. These revealed very minor changes in the lower pelvis. Ultimately, another diagnostic laparoscopy was performed, which revealed primary peritoneal cancer.
Staging surgery was performed by Dr. G., who testified at trial that she found cancer “everywhere” in the peritoneal cavity. After personally comparing pathology slides from the 2008 surgery with the tissue from the 2005 surgery, Dr. G. concluded that the tissue was virtually identical and the patient had cancer in 2005.
Dr. G. gave the woman a copy of Dr. B.’s 2005 pathology report with the advice to see a lawyer. Dr. G., however, did not provide a copy of the pathology report she had received from a gynecologic pathology expert, who had reviewed both tissue samples and concluded that Dr. B.’s diagnosis was reasonable.
The patient was ultimately diagnosed with low-grade primary peritoneal carcinoma, which was thought to have originated in her ovaries and fallopian tubes. She claimed that Dr. B.’s failure to diagnose cancer or borderline cancer in 2005 reduced her chance of survival by almost 70%. The defendant claimed that an earlier diagnosis would not have changed the plaintiff’s prognosis.
Outcome on next page >>
OUTCOME
A defense verdict was returned.
COMMENT
One of the most common reasons a patient decides to file a medical malpractice lawsuit is because a later treating professional recommends it. In this case, the staging surgeon reviewed the prior slides and concluded that the cancer should have been discovered at the time of the original surgery. It does not appear that she was a pathologist.
What is puzzling is why this provider would recommend that the patient see a lawyer, while withholding an expert pathology opinion stating that the original pathologist’s findings were reasonable. She did neither the patient nor her lawyer a favor. I am not surprised by the defense verdict in this case. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 52-year-old woman had a long history of abdominal pain and adhesions. In September 2005, after five years of adhesion-type abdominal pain, she underwent removal of her ovaries and fallopian tubes. A prior laparoscopic adhesiolysis had failed to resolve the pain. After the surgery, a tissue sample was sent to Dr. B., who diagnosed a “benign serous papillary tumor with psammoma bodies.”
In early 2007, the abdominal pain returned. The woman’s primary care physician immediately sent her for a series of MRIs over the next eight months. These revealed very minor changes in the lower pelvis. Ultimately, another diagnostic laparoscopy was performed, which revealed primary peritoneal cancer.
Staging surgery was performed by Dr. G., who testified at trial that she found cancer “everywhere” in the peritoneal cavity. After personally comparing pathology slides from the 2008 surgery with the tissue from the 2005 surgery, Dr. G. concluded that the tissue was virtually identical and the patient had cancer in 2005.
Dr. G. gave the woman a copy of Dr. B.’s 2005 pathology report with the advice to see a lawyer. Dr. G., however, did not provide a copy of the pathology report she had received from a gynecologic pathology expert, who had reviewed both tissue samples and concluded that Dr. B.’s diagnosis was reasonable.
The patient was ultimately diagnosed with low-grade primary peritoneal carcinoma, which was thought to have originated in her ovaries and fallopian tubes. She claimed that Dr. B.’s failure to diagnose cancer or borderline cancer in 2005 reduced her chance of survival by almost 70%. The defendant claimed that an earlier diagnosis would not have changed the plaintiff’s prognosis.
Outcome on next page >>
OUTCOME
A defense verdict was returned.
COMMENT
One of the most common reasons a patient decides to file a medical malpractice lawsuit is because a later treating professional recommends it. In this case, the staging surgeon reviewed the prior slides and concluded that the cancer should have been discovered at the time of the original surgery. It does not appear that she was a pathologist.
What is puzzling is why this provider would recommend that the patient see a lawyer, while withholding an expert pathology opinion stating that the original pathologist’s findings were reasonable. She did neither the patient nor her lawyer a favor. I am not surprised by the defense verdict in this case. —JP
Antidepressant Wrong Choice for Teen
Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
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.
Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.
Comment
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
Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
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.
Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.
Comment
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
Case reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
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.
Outcome
In a bench verdict, the plaintiff was awarded $3,459,892.
Comment
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